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EXHIBIT 10.22
FS-2700-4 (9/96)
OMB No. 0596-0082
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U. S. DEPARTMENT OF AGRICULTURE | Holder No. | Issue Date | Expir. Date |
Forest Service | 4031-01 | 2/26/98 | 2/26/99 BR |
| | | |
|-----------------------------------------|
| Type Site (s)| Authority | Auth. Type |
|161 _ _ _ | 545 | _ _ _ _ |
| | | |
SPECIAL-USE PERMIT |-----------------------------------------|
| Region/Forest/District |State/County |
Authority: Land & Water Conservation | 09/22/04 |33/009 |
Fund Act of 1965 (9/3/64) | | |
As amended |-----------------------------------------|
| Cong. Dist. | Latitude | Longitude |
| _ _ |_ _-_ _-_ _ |_ _ _-_ _-_ _|
| | | |
- -------------------------------------|-----------------------------------------|
Loon Mountain Recreation Corporation of Kancamagus Highway, Rt. 112
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Lincoln NH 03251
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(City) (State) (zip Code)
(hereinafter called the Holder) is hereby authorized to use or occupy National
Forest System lands, to use subject to the conditions set out below, on the
White Mountain National Forest.
This permit covers 7 miles and 581 acres and is described as National Forest
System lands in Tract No. 50a in the Town of Lincoln, Grafton County, New
Hampshire, as shown on the location map attached to and made a part of this
permit, and is issued for the purpose of: cross-country ski, mountain bike, and
horseback riding on designated trails, and erosion control measures as
necessary in the South Mountain area.
The above described or defined area shall be referred to herein as the "permit
area".
TERMS AND CONDITIONS
I. AUTHORITY AND GENERAL TERMS OF THE PERMIT
A. Authority. This permit is issued pursuant to the authorities enumerated at
Title 36, Code of Federal Regulations, Section 251 Subpart B, as amended. This
permit, and the activities or use authorized, shall be subject to the terms and
conditions of the Secretary's regulations and any subsequent amendment to them.
B. Authorized Officer. The authorized officer is the Forest Supervisor or a
delegated subordinate officer.
C. License. This permit is a license for the use of federally owned land and
does not grant any permanent, possessory interest in real property, nor shall
this permit constitute a contract for purposes of the Contract Disputes Act of
1978 (41 U.S.C. 611). Loss of the privileges granted by this permit by
revocation, termination, or suspension is not compensable to the holder.
D. Amendment. This permit may be amended in whole or in part by the Forest
Service when, at the discretion of the authorized officer, such action is
deemed necessary or desirable to incorporate new terms, conditions, and
stipulations as may be required by law, regulation, land management plans, or
other management decisions.
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E. Existing Rights. This permit is subject to all valid rights and claims of
third parties. The United States is not liable to the holder for the exercise
of any such right or claim.
F. Nonexclusive Use and Public Access. Unless expressly provided for in
additional terms, use of the permit area is not exclusive. The Forest Service
reserves the right to use or allow others to use any part of the permit area,
including roads, for any purpose, provided, such use does not materially
interfere with the holder's authorized use. A final determination of
conflicting uses is reserved to the Forest Service.
G. Forest Service Right of Entry and Inspection. The Forest Service has the
right of unrestricted access of the permitted area or facility to ensure
compliance with laws, regulations, and ordinances and the terms and conditions
of this permit.
H. Assignability. This permit is not assignable or transferable. If the
holder through death, voluntary sale or transfer, enforcement of contract,
foreclosure, or other valid legal proceeding ceases to be the owner of the
improvements, this permit shall terminate.
I. Permit Limitations. Nothing in this permit allows or implies permission to
build or maintain any structure or facility, or to conduct any activity unless
specifically provided for in this permit. Any use not specifically identified
in this permit must be approved by the authorized officer in the form of a new
permit or permit amendment.
II. TENURE AND ISSUANCE OF A NEW PERMIT
A. Expiration at the End of the Authorized Period. This permit will expire
at midnight on _______________________. Expiration shall occur by operation of
law and shall not require notice, any decision document, or any environmental
analysis or other documentation.
B. Construction. Any construction authorized by this permit may commence by
___N/A___ and shall be completed by ___N/A___. If construction is not
completed within the prescribed time, this permit may be revoked or suspended.
C. Maximum Use or Occupancy of the Permit Area. Use or occupancy of the permit
area shall be exercised at least ___365___ days each year, unless otherwise
authorized in writing under additional terms of this permit.
D. Notification to Authorized Officer. If the holder desires issuance of a
new permit after expiration, the holder shall notify the authorized officer
in writing not less than six (6) months prior to the expiration date of this
permit.
E. Conditions for Issuance of a New Permit. At the expiration or termination
of an existing permit, a new permit may be issued to the holder of the
previous permit or to a new holder subject to the following conditions:
1. The authorized use is compatible with the land use allocation in the
Forest Land and Resource Management Plan.
2. The permit area is being used for the purposes previously authorized.
3. The permit area is being operated and maintained in accordance with the
provisions of the permit.
4. The holder has shown previous good faith compliance with the terms and
conditions of all prior or other existing permits, and has not engaged in
any activity or transaction contrary to Federal contracts, permits, laws, or
regulation.
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F. Discretion of Forest Service. Notwithstanding any provisions of any prior
or other permit, the authorized officer may prescribe new terms, conditions,
and stipulations when a new permit is issued. The decision whether to issue a
new permit to a holder or successor in interest is at the absolute discretion
of the Forest Service.
III. RESPONSIBILITIES OF THE HOLDER
A. Compliance with Laws, Regulations, and other Legal Requirements. The
holder shall comply with all applicable Federal, State, and local laws,
regulations, and standards, including but not limited to, the Federal Water
Pollution Control Act, 33 U.S.C. 1251 et seq., the Resource Conservation and
Recovery Act , 42 U.S.C. 6901 et seq., the Comprehensive Environmental Response,
Control, and Liability Act, 42 U.S.C. 9601 et seq., and other relevant
environmental laws as well as public health and safety laws and other laws
relating to the siting, construction, operation, and maintenance of any
facility, improvement, or equipment on the property.
B. Plans. Plans for development, layout, construction, reconstruction, or
alteration of improvements on the permit area, as well as revisions of such
plans, must be prepared by a qualified individual acceptable to the authorized
officer and shall be approved in writing prior to commencement of work. The
holder may be required to furnish as-built plans, maps, or surveys, or other
similar information, upon completion of construction.
C. Maintenance. The holder shall maintain the improvements and permit area to
standards of repair, orderliness, neatness, sanitation, and safety acceptable
to the authorized officer and consistent with other provisions of this
authorization. If requested, the holder shall comply with inspection
requirements deemed appropriate by the authorized officer.
D. Hazard Analysis. The holder has a continuing responsibility to identify
all hazardous conditions on the permit area which would affect the
improvements, resources, or pose a risk of injury to individuals. Any
non-emergency actions to abate such hazards shall be performed after
consultation with the authorized officer. In emergency situations, the holder
shall notify the authorized officer of its action as soon as possible, but not
more than 48 hours, after such actions have been taken.
E. Change of Address. The holder shall immediately notify the authorized
officer of a change in address.
F. Change in Ownership. This permit is not assignable and terminates upon
change of ownership of the improvements or control of the business entity. The
holder shall immediately notify the authorized officer when a change in
ownership or control of business entity is pending. Notification by the
present holder and potential owner shall be executed using Form FS-2700-3,
Special Use Application and Report, or Form FS-2700-3a, Request for Termination
of and Application for Special-Use Permit. Upon receipt of the proper
documentation, the authorized officer may issue a permit to the party who
acquires ownership of, or a controlling interest in, the improvements or
business entity.
IV. LIABILITY
For purposes of this section, "holder" includes the holder's heirs, assigns,
agents, employees, and contractors.
A. The holder assumes all risk of loss to the authorized improvements.
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B. The holder shall indemnify, defend, and hold the United States harmless for
any violations incurred under any such laws and regulations or for judgments,
claims, or demands assessed against the United States in connection with the
holder's use or occupancy of the property. The holder's indemnification of the
United States shall include any loss by personal injury, loss of life or damage
to property in connection with the occupancy or use of the property during the
term of this permit. Indemnification shall include, but is not limited to, the
value of resources damaged or destroyed; the costs of restoration, cleanup, or
other mitigation; fire suppression or other types of abatement costs; third
party claims and judgments; and all administrative, interest, and other legal
costs. This paragraph shall survive the termination or revocation of this
authorization, regardless of cause.
C. The holder has an affirmative duty to protect from damage the land,
property, and interests of the United States.
c(1). The holder shall maintain insurance coverage, naming the United States
additionally insured on the policies(s), to partially fund the indemnification
obligations of the holder for any and all losses due to personal injury
($300,000.00), Loss of life ($500,000.00), or property damage ($25,000.00),
including fire suppression and hazardous waste costs. The holder shall furnish
proof of insurance (such as a surety bond, or certificate of insurance) to the
Authorized Officer prior to execution of this permit and verify annually, and
in writing, the insurance obligation to the Authorized Officer. The Authorized
Officer may allow the holder to replace, repair, restore, or otherwise
undertake necessary curative actions, to the satisfaction of the Authorized
Officer, in order to mitigate damages in addition to or as an alternative to
monetary indemnification.
D. In the event of any breach of the conditions of this authorization by the
holder, the Authorized Officer may, on reasonable notice, cure the breach for
the account at the expense of the holder. If the Forest Service at any time
pays any sum of money or does any act which will require payment of money, or
incurs any expense, including reasonable attorney's fees, in instituting,
prosecuting, and/or defending any action or proceeding to enforce the United
States rights hereunder, the sum or sums so paid by the United States, with
all interests, costs and damages shall, at the election of the Forest Service,
be deemed to be additional fees hereunder and shall be due from the holder to
the Forest Service on the first day of the month following such election.
E. With respect to roads, the holder shall be proportionally liable for
damages to all roads and trails of the United States open to public use caused
by the holder's use to the same extent as provided above, except that liability
shall not include reasonable and ordinary wear and tear.
F. The Forest Service has no duty to inspect the permit area or to warn of
hazards and, if the Forest Service does inspect the permit area, it shall incur
no additional duty nor liability for identified or non-identified hazards.
This covenant may be enforced by the United States in a court of competent
jurisdiction.
V. TERMINATION, REVOCATION, AND SUSPENSION
A. General. For purposes of this permit, "termination", "revocation", and
"suspension" refer to the cessation of uses and privileges under the permit.
"Termination" refers to the cessation of the permit under its own terms
without the necessity for any decision or action by the authorized officer.
Termination occurs automatically when, by the terms of the permit, a fixed or
agreed upon condition, event, or time occurs. For example, the permit
terminates at expiration. Terminations are not appealable.
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"Revocation" refers to an action by the authorized officer to end the
permit because of noncompliance with any of the prescribed terms, or for
reasons in the public interest. Revocations are appealable.
"Suspension" refers to a revocation which is temporary and the
privileges may be restored upon the occurrence of prescribed actions or
conditions. Suspensions are appealable.
B. Revocation or Suspension. The Forest Service may suspend or revoke this
permit in whole or part for:
1. Noncompliance with Federal, State, or local laws and regulations.
2. Noncompliance with the terms and conditions of this permit.
3. Reasons in the public interest.
4. Abandonment or other failure of the holder to otherwise exercise the
privileges granted.
C. Opportunity to Take Corrective Action. Prior to revocation or suspension
for cause pursuant to Section V (B), the authorized officer shall give the
holder written notice of the grounds for each action and a reasonable time, not
to exceed 90 days, to complete the corrective action prescribed by the
authorized officer.
D. Removal of Improvements. Prior to abandonment of the improvements or
within a reasonable time following revocation or termination of this
authorization, the holder shall prepare, for approval by the authorized
officer, an abandonment plan for the permit area. The abandonment plan
shall address removal of improvements and restoration of the permit area and
prescribed time frames for these actions. If the holder fails to remove the
improvements or restore the site within the prescribed time period, they
become the property of the United States and may be sold, destroyed or
otherwise disposed of without any liability to the United States. However, the
holder shall remain liable for all cost associated with their removal,
including costs of sale and impoundment, cleanup, and restoration of the site.
VI. FEES
A. Termination for Nonpayment. This permit shall automatically terminate
without the necessity of prior notice when land use rental fees are 90 calendar
days from the due date in arrears.
B. The holder shall pay an annual fee of one thousand Dollars ($1,000.00:
Provided, charges for this use shall be made or readjusted whenever necessary
to place the charges on a basis commensurate with the fair market value of the
authorized use.
C. Payment Due Date. The payment due date shall be the close of business on
October 1 of each calendar year payment is due. Payments due the United States
for this use shall be deposited at White Mountain National Forest, 719 Main
St., Laconia, NH 03246 in the form of a check, draft, or money order payable
to "Forest Service, USDA." Payments shall be credited on the date received by
the designated Forest Service collection officer or deposit location. If the
due date for the fee or fee calculation statement falls on a non workday, the
charges shall not apply until the close of business on the next workday.
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D. Late Payment Interest. Pursuant to 31 USC 3717, and regulations at 7 CFR
Part 3, Subpart B, and 4 CFR Part 102, an interest charge shall be assessed on
any payment or financial statement not received by the due date. Interest
shall be assessed using the most current rate prescribed by the United States
Department of Treasury's Financial Manual (TFM-6-8020). Interest shall accrue
from the date the payment or financial statement was due. In the event that
two or more billings are required for delinquent accounts, administrative costs
to cover processing and handling of the delinquent debt will be assessed.
E. Additional Penalties. In the event of permit termination pursuant to
provisions VI (A), and prior to the issuance of a new permit, a penalty of 6
percent per year shall be assessed on any fee amount overdue in excess of 90
days from the payment due date. This penalty shall accrue from the due date of
the first billing or the date the fee calculation financial statement was due.
The penalty is in addition to interest and any other charges specified in the
above paragraph.
F. Disputed Fees. Disputed fees are due and payable by the due date. No
appeal of fees will be considered by the Forest Service without full payment of
the disputed amount. Adjustments, if necessary, will be made in accordance
with settlement terms or appeal decision.
G. Delinquent Fees.
1. Delinquent fees and other charges shall be subject to all rights
and remedies afforded the United States pursuant to Federal law and
implementing regulations (31 U.S.C. 3711 et seq.).
2. The authorized officer shall require payment of fees owed the
United States under any Forest Service authorization before issuance of a new
permit.
VII. OTHER PROVISIONS
A. Members of Congress. No Member of or Delegate to Congress or Resident
Commissioner shall benefit from this permit either directly or indirectly,
except when the authorized use provides a general benefit to a corporation.
B. Appeals and Remedies. Any discretionary decisions or determinations by the
authorized officer are subject to the appeal regulations at 36 CFR 251, Subpart
C, or revisions thereto.
C. Superior Clauses. In the event of any conflict between any of the
preceding printed clauses or any provision thereof and any of the following
clauses or any provision thereof, the preceding printed clauses shall control.
D. South Mountain Area. The area shown on the map and identified as the South
Mountain Area, will have limited access pursuant to the Forest Supervisor's
Closure Order dated 6/20/97. The holder and Forest Service will be responsible
for all signs and other measures necessary to stop unauthorized use. The holder
will be responsible for all erosion control measures deemed necessary to
protect areas within South Mountain that have had alpine trails and liftlines
cut.
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This permit is subject to the conditions set out above.
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Loon Mountain Recreation Corporation
By
Holder: [sig] Authorized officer: [SIG]
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Title: Title: Forest Supervisor
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Date: Date: 2/26/98
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According to the Paperwork Reduction Act of 1995, no persons are required to
respond to a collection of information unless it displays a valid OMB control
number. The valid OMB control number for this information collection is
0596-0082.
This information is needed by the Forest Service to evaluate requests to use
National Forest System lands and manage those lands to protect natural
resources, administer the use, and ensure public health and safety. This
information is required to obtain or retain a benefit. The authority for that
requirement is provided by the Organic Act of 1897 and the Federal Land Policy
and Management Act of 1976, which authorize the Secretary of Agriculture to
promulgate rules and regulations for authorizing and managing National Forest
System lands. These statutes, along with the Term Permit Act, National Forest
Ski Area Permit Act, Granger-Thye Act, Mineral Leasing Act, Alaska Term Permit
Act, Act of September 3, 1954, Wilderness Act, National Forest Roads and Trails
Act, Act of November 16, 1973, Archeological Resources Protection Act, and
Alaska National Interest Lands Conservation Act, authorize the Secretary of
Agriculture to issue authorizations for the use and occupancy of National
Forest System lands. The Secretary of Agriculture's regulations at 36 CFR Part
351, Subpart B, establish procedures for issuing those authorizations.
The Privacy Act of 1974 (5 U.S.C. 552a) and the Freedom of Information Act (5
U.S.C. 552) govern the confidentiality to be provided for information received
by the Forest Service.
Public reporting burden for collection of information, if requested, is
estimated to average 1 hour per response for annual financial information;
average 1 hour per response to prepare or update operation and/or maintenance
plan; average 1 hour per response for inspection reports; and an average of 1
hour for each request that may include such things as reports, logs, facility
and user information, sublease information, and other similar miscellaneous
information requests. This includes the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Send comments
regarding this burden estimate or any other aspect of this collection of
information, including suggestions for reducing this burden, to Department of
Agriculture, Clearance Officer, OIRM, AG Box 7630, Washington D.C. 20250; and
to the Office of Management and Budget, Paperwork Reduction Project (OMB #
1596-0082), Washington, D.C. 20503.