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This Act is current to October 8, 2024 | |||
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force. |
Despite the above date, the Schedule to the Act, including the Map of Nisg̱a'a Lands and the Appendices, is current to May 11, 2000. See "Amending Agreements" for amendments to the Schedule.
APPENDIX C
INTERESTS ON NISG̱A'A LANDS
Appendix C-1
INTERESTS ON NISG̱A'A LANDS
Part 1 | Existing Interests |
Part 2 | Public utility transmission and distribution facilities |
Part 3 | Roads |
Part 1 of Appendix C-1
Existing Interests
Interest Holder | Facility | Location | Previous Document | Nisg̱a'a Replacement Document |
BC TEL | Communication site | Blk. B of D.L. 2626, Cassiar District (103P.025) | 632928 BC | Licence of Occupation for Communication Site with Road Access |
Communication site with buried power cable – Ishkeenickh site | South of Laxgalts'ap (103P.003) | 633669 BC | Licence of Occupation for Communication Site with Utility Access | |
Communication site – Kwinyarh | Along Nass River (103P.014) | 633670 BC | Licence of Occupation for Communication Site with Road Access and Utility Access | |
Communication site – Aiyansh site | Near New Aiyansh (103P.025) | 633171 BC | Licence of Occupation for Communication Site | |
Communication site | On former Kincolith I.R. 14 (103I.091) | 89339 Can | Licence of Occupation for Telephone Exchange | |
Communication site | On former Laxgalts'ap I.R. 9 (103P.003) | 87527 Can | Licence of Occupation for Telephone Exchange | |
British Columbia | ||||
Ministry of Forests | Experimental Plots | Near SE corner of former Andequlay I.R. 8 (103P.003) and in D.L. 1734, Cassiar District (103P.036) | Exp00702 Blocks 4 and 5 BC | Licence of Occupation for Forestry Experimental Plots |
Ministry of Transportation and Highways | Communication site | Located on 103P.003 | File 6406499 BC | Licence of Occupation for Provincial Communication Site |
British Columbia Hydro and Power Authority | Communication site | Near Maughlin Cr. (103P.035) | 633793 BC | Licence of Occupation for Hydro Communication Site |
Canada | ||||
Department of Fisheries and Oceans (Canadian Coast Guard) | Navigation Beacon | Leading Point (103I.091) | Notation of Interest BC | Licence of Occupation for a Navigational Light |
Navigation Beacon | Fort Point (103I.091) | Notation of Interest BC | Licence of Occupation for a Navigational Light | |
Navigation Beacon | Mill Bay (103I.091) | Notation of Interest BC | Licence of Occupation for a Navigational Light | |
Environment Canada | Hydrometric station and cableway | On former Old Aiyansh I.R. (103P.025) | 28-2 Permit Can (File 70-444) | Licence of Occupation for a Hydrometric Station |
Hydrometric station | Near Ansedagan Creek (103P.014) | Licence of Occupation for a Hydrometric Station | ||
Canadian Broadcasting Corporation | Communication site | In D.L. 2626, Cassiar District (103P.025) | 2659 BC | Licence of Occupation for Communication Site and Road Access |
Gitlakdamix Development Corporation | Store and laundry | Lot 19-6 in former New Aiyansh I.R. 1 (103P.025) | 85074 Can | Lease |
N.D. Hayduk/ C.A. Hayduk owners of Lot A of D.L. 1729, Cassiar District, Plan 9553 | Waterworks Source – Hughan Brook | In D.L. 1718, Cassiar District (103P.025) | Permit 16666 BC (Water Act) | Permit of Occupation for Waterworks |
N.D. Hayduk (P.H. Hugan's executor) owner of the S 1/2 of the S.W. 1/4 of D.L. 1718, Cassiar District, except Plans 5830 and 7486 | Waterworks Source – Hughan Brook | In D.L. 1718, Cassiar District (103P.025) | Permit 20062 BC (Water Act) | Permit of Occupation for Waterworks |
Royal Canadian Mounted Police | Communication site | Near Kwinamuck Lake (103P.035) | 632776 BC | Licence of Occupation for Communication Site |
Communication site | Near Ginlulak Creek (103P.003) | 634208 BC | Licence of Occupation for Communication Site | |
The Board of School Trustees of School District No. 92 (Nisg̱a'a) | School site | Lot 28 in former Gitwinksihlkw I.R. 7 (103P. 014) | PC 1994-685 Section 53(1) Lease Can | Lease |
Sim Gan Forest Corporation | Camp and office | Near Kwinatahl River (103P.045) | SUP 19897 BC | Special Use Permit for Forestry Operations |
Dryland Sort | Near Kwinatahl River (103P.035) | SUP 22417 BC | Special Use Permit for Forestry Operations | |
Skeena Cellulose Inc | Log sort and dump | Near Ginlulak (103P.003) | SUP 9764 BC | Special Use Permit for Forestry Operations |
Camp and office | Near SE corner of D.L. 2944, Cassiar (103P.013) | SUP 16189 BC | Special Use Permit for Forestry Operations | |
M.W. Spisak, owner of D.L. 1729, Cassiar District, except Plans 8537 and 9553 | Waterworks Source – Hughan Brook | Pt of D.L. 1718, Cassiar District (103P.025) | Permit 20064 BC (Water Act) | Permit of Occupation for Waterworks |
TOK Communications | Communication site | In D.L. 2626, Cassiar District (103P.025) | 633073 BC | Licence of Occupation for Communication Site and Road Access |
Part 2 of Appendix C-1
Public Utility Transmission and Distribution Facilities
Interest Holder | Facility | General Location | Previous Document | Nisg̱a'a Replacement Document |
British Columbia Hydro and Power Authority | Transmission Line No.s 1L387 and 1L381 | Running from: Firstly: The southerly boundary of Nisg̱a'a Lands near Fulmar Creek to the Aiyansh sub-station (Block A of D.L. 1726, Cassiar District); and Secondly: Aiyansh sub-station to the northwesterly boundary of Nisg̱a'a Lands near Kwinatahl within D.L. 1661, Cassiar District, and Thirdly: Aiyansh sub-station to the northeasterly boundary of Nisg̱a'a Lands within D.L. 1751, Cassiar District. All as generally depicted on Appendix A-2. | 1634 BC 634078 BC | Grant of Right of Way and Licence for Public Utility Works to British Columbia Hydro and Power Authority (Hydro) (Right of Way) |
Transmission line | Running between Nisg̱a'a Highway and Block B of 2626, Cassiar District | 2087 BC | Grant of Right of Way and Licence for Public Utility Works to Hydro (Right of Way) | |
Transmission line | Running from Aiyansh sub-station to the S.E. 1/4 of D.L. 4011, Cassiar District and continuing in a general southwesterly direction, passing through the village of Laxgalts'ap and former I.R.s, to Gingolx, with a feeder line to Gitwinksihlkw. | 2116 BC 634145 BC Permit 7491 Can Permit 7493 Can 633472 BC Permit 56112 Can | Grant of Right of Way and Licence for Public Utility Works to Hydro (Right of Way) | |
Transmission Line | Running from Aiyansh sub-station to Block B of D.L. 1726, Cassiar District, Plan 7237 | 2116 BC | Grant of Right of Way and Licence for Public Utility Works to Hydro (Right of Way) | |
Distribution Lines | Within the Village of New Aiyansh | Permit 70-2156 Can | Grant of Right of Way and Licence for Public Utility Works to Hydro (Licence) | |
Distribution Lines | Within the Village of Laxgalts'ap | Permit X16157 and 54679 Can | Grant of Right of Way and Licence for Public Utility Works to Hydro (Licence) | |
Distribution Lines | Within the Village of Gingolx | Permit No. 56112 | Grant of Right of Way and Licence for Public Utility Works to Hydro (Licence) | |
Distribution Lines | Within the Village of Gitwinksihlkw | Permit X16158 | Grant of Right of Way and Licence for Public Utility Works to Hydro (Licence) | |
Other transmission and distribution facilities | Nisg̱a'a Lands other than within Hydro rights of way areas, the above noted Villages or areas in respect of which Hydro has been granted rights under a separate instrument in Appendix C | Grant of Right of Way and Licence for Public Utility Works to Hydro (Licence) | ||
BC TEL | Distribution Line | On former Laxgalts'ap I.R. 9 | 80067, 81439 and 104253 Can | Grant of Right of Way and Licence for Telecommunications to BC TEL (Right of Way) |
Tele- communication lines | Within the Village of New Aiyansh | Grant of Right of Way and Licence for Telecommunications to BC TEL (Licence) | ||
Tele- communication lines | Within the Village of Laxgalts'ap | Grant of Right of Way and Licence for Telecommunications to BC TEL (Licence) | ||
Tele- communication lines | Within the Village of Gingolx | Grant of Right of Way and licence for public utility works to BC TEL (Licence) | ||
Tele- communication lines | Within the Village of Gitwinksihlkw | Grant of Right of Way and Licence for Telecommunications to BC TEL (Licence) | ||
Other distribution and tele- communication facilities | Nisg̱a'a Lands other than within BC TEL's right of way area, the above noted Villages or areas in respect of which BC TEL has been granted rights under a separate instrument in Appendix C | Grant of Right of Way and Licence for Telecommunications to BC TEL (Licence) |
Roads
SECONDARY PROVINCIAL ROADS:
Rights of Way granted to British Columbia as represented by
the Minister of Transportation and Highways
Road No. 183 – between that portion of Nisg̱a'a Highway running through the South 1/2 of District Lot 4011, Cassiar District and the northerly boundary of the Northeast 1/4 of District Lot 4011.
Map 103P. 025
Landfill Road – between Nisg̱a'a Highway and the easterly boundary of District Lot 1714, Cassiar District.
Map 103P. 025
Road No. 179 (east portion) – between Nisg̱a'a Highway and the westerly boundary of District Lot 1718.
Map 103P. 025
Road No. 179 (west portion) – between Nisg̱a'a Highway and the left natural boundary of Nass River, passing through District Lots 1717, 1715, 1719, 1720, unsurveyed Crown land, and former Kitladamas Indian Reserve No.1.
Map 103P. 025
Road No. 325 – between Nisg̱a'a Highway and the Grease Trail Forest Service Road (FSR 8672.01) and passing through Block B of District Lot 1726, Block A of District Lot 1730 and Block A of District Lot 3051.
Maps 103P. 025 and 026
Road access to District Lot 4015, Cassiar District – between Road No. 179 (west portion) and the easterly boundary of the District Lot.
Map 103P. 025
Road access to District Lot 3061, Cassiar District – between the Grease Trail Forest Service Road and the southerly boundary of the District Lot, and passing through District Lots 3058, 3054, and 3055.
Map 103P. 035
Rights of Way granted to British Columbia as represented
by the Minister of Forests
R04088 – Section A Tchitin River – running between junction with Nass Forest Service Road 942-7876.03 in the East 1/2 of District Lot 3128, Cassiar District, to its intersection with the boundary of Nisg̱a'a Lands within District Lot 3129, Cassiar District.
Tchitin Road – Section 1 – running between RO4088 and the northerly boundary of Nisg̱a'a Lands and being the most southerly spur within the northwest 1/4 of District Lot 3124, Cassiar District.
Tchitin Road – Section 2 – running between RO4088 and the northerly boundary of Nisg̱a'a Lands and being the most northerly spur within the northwest 1/4 of District Lot 3124 Cassiar District.
Tchitin Road – Section 3 – running between RO4088 and the northerly boundary of Nisg̱a'a Lands and being the most southerly spur within District Lot 3128, Cassiar District.
Tchitin Road – Section 4 – running between RO4088 and the northerly boundary of Nisg̱a'a Lands and being the most northerly spur within District Lot 3128, Cassiar District.
Map sheet 103P.056
R07185 – Taylor Lake Road – running between junction with Nass Forest Service Road 942-07876.04, within the Northeast 1/4 of District Lot 3104, Cassiar District, and its intersection with the northerly boundary of Nisg̱a'a Lands within District Lot 3111, Cassiar District.
Map 103P.045
R07521 – Section A South Kshadin – running between junction with Special Use Permit 9228 within District Lot 1661, Cassiar District, and its intersection with the boundary of Nisg̱a'a Lands within District Lot 3098, Cassiar District.
Map 103P.045
R07694 – Sections A, B and C – Ksedin Creek – running from Nisg̱a'a Highway in a general southeasterly direction to the boundary of Nisg̱a'a Lands in the general vicinity of Ksedin Creek.
Maps 103P.003 and 103P.004
R07708 – Sections A and B – Beaupre Road
Section A – running from the boundary of Nisg̱a'a Memorial Lava Bed Park in a general southerly direction to the boundary of Nisg̱a'a Lands.
Section B – partially constructed with approximately 2.3 kms within Nisg̱a'a Lands requiring construction.
Map 103P.015
R07816 – Sections A, B, C, C-1 and D – Ishkheenickh Road – running from Nisg̱a'a Highway in a general southwesterly direction, with portions following the left and right banks of the Ishkheenickh River.
Maps 103I.083, 103I.093 and 103P.003
R07817 – Section A – Ksedin Creek – running from Nisg̱a'a Highway in a general easterly direction to the boundary of Nisg̱a'a Lands in the general vicinity of Ksemanaith Creek.
Maps 103P.003, 103P.004 and 103P.014
R07818 – Sections A and B – Hoadley Creek Road
Section A – running from the junction with the Nass Forest Service Road in District Lot 1731, Cassiar District, to the boundary of Nisg̱a'a Lands in the vicinity of Hoadley Creek.
Section B – running from RO7818 – Section A easterly to the boundary of Nisg̱a'a Lands and within District Lots 1743 and 1744.
Maps 103P.026 and 103P.036
R07889 – Sections A, B, and C – North Hoodoo Road
Section A – running from the junction with the Nass Forest Service Road near the southerly boundary of District Lot 1751, Cassiar District, and its junction with the Nass Forest Service Road within District Lot 4006, Cassiar District;
Section B – running between Section A of North Hoodoo Road and the easterly boundary of Nisg̱a'a Lands within District Lot 1751, Cassiar District;
Section C – running in a northeasterly direction between Section A of North Hoodoo Road and the easterly boundary of Nisg̱a'a Lands within District Lot 1759, Cassiar District;
Jackpine – Section 1 – running northeasterly from Section A of North Hoodoo Road to the easterly boundary of Nisg̱a'a Lands within District Lot 1763, Cassiar District;
Jackpine – Section 2 – running in a northerly direction between Section A of North Hoodoo Road and the easterly boundary of Nisg̱a'a Lands within District Lot 1772, Cassiar District; and
Jackpine – Section 3 – running northeasterly from Section A of North Hoodoo Road to the easterly boundary of Nisg̱a'a Lands within District Lot 3079, Cassiar District.
Maps 103P.036 and 103P.046
RO10521 – Section A – Branch 5000 – running in a general southeasterly direction between Nisg̱a'a Highway and the southerly boundary of Nisg̱a'a Lands.
Maps 103P.003 and 103P.004
FSR 8672.01 – Section 01 – Grease Trail – running from junction with Road No. 325 within Block A of District Lot 1730, Cassiar District, to the northerly boundary of the BC Hydro.right of way, Plan 5612, which lies within District Lot 3063, Cassiar District.
Maps 103P.025 and 103P.035
FSR 7876.03 – Section 03 (Nass-Kinskuch) – running northwesterly between sections of the boundary of Nisg̱a'a Lands from the northerly boundary of District Lot 4006 to the northerly boundary of District Lot 3128, Cassiar District;
Section 1 – running northeasterly from Nass-Kinskuch FSR within the north 1/2 of District Lot 3125, Cassiar District;
Section 3 – running in a general northerly direction from Kinskuch-Section 4 within the south 1/2 of District Lot 3125, Cassiar District; and
Section 4 – running in a general northeasterly direction from Nass-Kinskuch FRS within the south 1/2 of District Lot 3125, Cassiar District.
Maps 103P.046 and 103P.056
FSR 7876.04 – Section 04 (Nass -Kwinatahl) – runs southwesterly from its junction with FSR 7876.03 to the northwesterly boundary of Nisg̱a'a Lands crossing the boundary within the East 1/2 of District Lot 3104, Cassiar District.
Maps 103P.045 and 103P.046
S.U.P 9228 Kshadin to Alice Arm (Amax of Canada) – running in a general southwesterly direction from Kshadin Creek, within District Lot 3101, to the southerly boundary of District Lot 1661, Cassiar District. This road straddles the boundary of Nisg̱a'a Lands.
Maps 103P.035 and 103P.045
North Hoodoo Access Road 1 – running in a general northeasterly direction between North Hoodoo Road and the easterly boundary of Nisg̱a'a Lands, within District Lots 1759 and 1763, Cassiar District.
North Hoodoo Access Road 2 – running in a general northeasterly direction between North Hoodoo Road and the easterly boundary of Nisg̱a'a Lands, within District Lot 1768, Cassiar District.
North Hoodoo Access Road 3 – running in a general northeasterly direction between North Hoodoo Road and the easterly boundary of Nisg̱a'a Lands, within District Lot 1772, Cassiar District.
North Hoodoo Access Road 4 – running in a general northeasterly direction between North Hoodoo Road and the easterly boundary of Nisg̱a'a Lands, within District Lot 4003, Cassiar District.
SECONDARY PROVINCIAL ROAD EXTENSIONS
North Hoodoo Access Road – Site 1 Extension – Of the two locations identified only one is to be selected by British Columbia running in a general northeasterly direction between North Hoodoo Road and the easterly boundary of Nisg̱a'a Lands, within District Lot 1768, Cassiar District.
North Hoodoo Access Road – Site 2 Extension – running in an easterly direction between North Hoodoo Road and the easterly boundary of Nisg̱a'a Lands, within District Lots 1777 and 3077, Cassiar District.
PRIVATE ROADS:
Private Easements
Access to Woodlot Licence 141 William Knight | Ref. Map 103P.035 |
Access to Fractional N.E. 1/4 of D.L. 3063, Cassiar District Nass Cattle Company Ltd. Inc. #346159 | Ref. Map 103P.035 |
Access to D.L. 3053, Cassiar District E. Fleenor/ C.E. Fleenor/ D. Dimaggio | Ref. Map 103P.025 |
Access to S.E. 1/4 of D.L. 2627, Cassiar District HW Riemer | Ref. Map 103P.015 |
BRITISH COLUMBIA HYDRO AND POWER
AUTHORITY (HYDRO) ACCESS ROADS:
Roads appurtenant to Public Utility Works
Road No. 1 – enters Nisg̱a'a Lands at Fulmar Creek and continues in a general northwesterly direction, passing through unsurveyed Nisg̱a'a Land, District Lots 4014 and 2627, to the northerly boundary of District Lot 2627, using a main logging road and spurs. Includes four separate access branches.
Maps 103P.015 and 103P.016
Road No. 2 – trail between Block B of District Lot 2626, and the main hydro line in the vicinity of the southerly boundary of District Lot 2625.
Map 103P.025
Road No. 3 – an existing road between Nisg̱a'a Highway and Hydro's right of way near the southerly boundary of District Lot 1722.
Map 103P.025
Road No. 4 – an existing road between Nisg̱a'a Highway and Hydro's right of way in the Northwest 1/4 of District Lot 1723.
Map. 103P.025
Road No. 5 – an existing road between Nisg̱a'a Highway and Hydro's right of way lying south of Block A of District Lot 1726.
Map 103P.026
Road No. 6 – an existing road between Nisg̱a'a Highway and Hydro's right of way in the southeast corner of District Lot 1730.
Map 103P.026
Road No. 7 – access spur between Nisg̱a'a Highway and Hydro's right of way in the vicinity of the southerly boundary of District Lot 1734.
Map 103P.036
Road No. 8 – an existing trail between Nisg̱a'a Highway and Hydro's right of way in the vicinity of the northerly boundary of District Lot 1734.
Map 103P.036
Road No. 9 – access road between Nisg̱a'a Highway and Hydro's right of way running southwesterly from the highway passing through District Lots 1746, 1742, 1741, and 1738 along decommissioned roads. Includes one access spur.
Map 103P.036
Road No. 10 – access road between Grease Trail Forest Service Road and Hydro's right of way, running in a northeasterly direction within District Lot 3063.
Map 103P.036
Road No. 11 – access road between Grease Trail Forest Service Road and Hydro's right of way, running in a westerly direction within District Lot 3066.
Map 103P.035
Road No. 12 – access road between S.U.P. 9228 (Kshadin to Alice Arm) and Hydro's right of way, running is a southerly direction passing through District Lot 166I along former RO6419.
Map 103P.035
Road No. 13 – From Nisg̱a'a Highway to the easterly boundary of Block B of District Lot 1726, Cassiar District.
Map 103P.025 and 103P. 026
Road No. 14 – From Nisg̱a'a Highway to Block B of District Lot 2626, Cassiar District.
Map 103P.025
Appendix C-2
APPLICABLE FORMS OF DOCUMENT FOR EXISTING
INTERESTS LISTED IN PART 1 OF APPENDIX C-1
License of Occupation for Communication Site
THIS AGREEMENT made this __________ day of ____________________ , 199
BETWEEN:
NISG̱A'A NATION, of
____________________
(the "Owner")
AND:
of ____________________
(the "Licensee")
Whereas the Owner has agreed to grant to the Licensee a license 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 Licensee, the parties agree as follows:
Article 1 – Grant of License
1.1 The Owner, on the terms set forth herein, hereby grants to the Licensee a license to enter on and use the Land for the purpose of constructing and maintaining for communication purposes any building, tower, road, antennae, powerline or other physical infrastructure shown in the site plan and site elevation drawing forming part of the Legal Description Schedule (the "Civil Infrastructure").
Article 2 – Duration
2.1 The duration of the license and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with Article 6.
2.2 Notwithstanding anything to the contrary in this license, so long as:
(a) the Licensee is not in default of any of the material terms or conditions of this license; and
(b) the Licensee has given the Owner, not more than · days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new license to enter on and use the Land
the Owner may agree to offer a new license to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of 60 days from the date of receipt of the notice from the Owner to accept a new license to enter on and use the Land by executing the new license contained in the notice and delivering it to the Owner.
Article 3 – License Fee
3.1 The Licensee shall pay to the Owner an annual license fee during the term of this license, in advance, as follows:
(a) during the first five years of the term of this license (the "Initial Fee Period"), the Licensee shall pay to the Owner:
(i) on the Commencement Date, the sum of · ; and
(ii) on each annual anniversary of the Commencement Date during the Initial Fee Period, a sum equal to the greater of:
(1) the annual license fee for the immediately preceding year; and
(2) the amount which would be payable on that date under the then- existing policies of the Province of British Columbia with respect to the payment of rent for communication sites located on similar Crown Land (the "Provincial Policies"); and
(b) during each subsequent five year period over the term of this license (a "Subsequent Fee Period"), the Licensee shall pay to the Owner on each annual anniversary of the Commencement Date a sum equal to the greatest of:
(i) the annual license fee for the immediately preceding year,
(ii) the amount which would be payable on that date under the then-existing Provincial Policies, or
(iii) the annual fair market rent for the Subsequent Fee Period, if that annual fair market rent has been determined:
(1) by written agreement between the Owner and the Licensee prior to the Subsequent Fee Period; or
(2) pursuant to the dispute resolution process set out in Article 10, invoked by the Owner or the Licensee prior to the Subsequent Fee Period.
3.2 In this Article, "annual fair market rent" means the fee which a willing licensee at arm's length from the Owner would pay to the Owner in respect of the Land excluding any allocation of value to any fixtures or improvements located on the Land:
(a) belonging to the Licensee; or
(b) not available for use by the Licensee.
Article 4 – Covenants of the Licensee
4.1 The Licensee covenants with the Owner:
(a) to pay the license 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 Licensee in accordance with Article 8;
(b) 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 Licensee's improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;
(c) 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;
(d) 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 Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
(e) to deliver to the Owner from time to time, upon demand, proof of insurance provided for in subsection (k), receipts or other evidence of payment of Realty Taxes, insurance premiums and other monetary obligations of the Licensee required to be observed by the Licensee pursuant to this license;
(f) to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee, or
(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land
and the Owner may add the amount of such losses, damages, costs and liabilities to the Fee and the amount so added shall be payable to the Owner immediately;
(g) 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 Licensee;
(h) to permit the Owner or its authorized representative to enter upon the Land at any time to examine its condition;
(i) to use and occupy the Land in accordance with the provisions of this license including those set forth in the schedule attached and entitled "Special Provisos";
(j) on the expiration or at the earlier cancellation of this license:
(i) to quit peaceably and deliver possession of the Land to the Owner,
(ii) 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 Licensee, and
(iii) to restore the surface of the Land to the satisfaction of the Owner acting reasonably,
and to the extent necessary, this covenant shall survive the expiration or cancellation of this license;
(k) to effect and keep in force during the term insurance protecting the Owner and the Licensee (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, however, that the Owner may, in its sole discretion, waive the requirements of this subsection on the delivery to the Owner of evidence that the Licensee is self insured;
(l) notwithstanding subsection (k), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to subsection (k) 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 Licensee is self-insuring this section shall not apply;
(m) 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; and
(n) on request of the Owner, to provide to the Owner an inventory of communication uses sufficient to allow the calculation of fees under the Provincial Policies.
Article 5 – Assignment
5.1 The Licensee shall not assign this license or grant a sublicense of any part of the Land without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
5.2 Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner, assign its interest in all or a part of the Land to an affiliate (as defined in the Company Act, RSBC 1996) of the Licensee provided that the Licensee gives written notice of any such change at least 120 days prior to the next anniversary date of the term of this license.
5.3 No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this license.
Article 6 – Cancellation
6.1 If the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:
(a) 30 days; or
(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout
then the Owner may cancel this license and, notwithstanding subsection 4.1 (j), any fixtures to the Land shall become, at the discretion of the Owner, the property of the Owner.
6.2 If this license is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent, is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this license and the rights herein granted.
6.3 If the Licensee ceases to use the Land for the purposes permitted herein and the Licensee 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 license and the rights herein granted.
6.4 If the Owner requires a portion of the Land for a public purpose, the Owner may, in accordance with section 6.5 and on 180 days written notice to the Licensee, cancel this license and the rights herein granted with respect to no more than 5% of the whole of the Land.
6.5 Concurrently with the notice referred to in section 6.4, the Owner will give the Licensee written notice that the Owner will, at its cost, relocate the Licensee's structures and improvements that are materially affected by the cancellation in Section 6.4 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 Licensee, be of sufficient size to accommodate the Licensee's structures and improvements and be equally suitable for the purposes of the Licensee. The Owner will pay for any reasonable costs of moving the Licensee and its structures and improvements to the New Location. If the Licensee's structures and improvements cannot be moved to the New Location, the Owner will pay to the Licensee the reasonable costs of constructing new improvements on the New Location. As full compensation for all other costs, expenses and damages that the Licensee may incur in connection with the relocation, including disruption and loss of business, the parties shall agree on a lump sum payment and failing agreement, the matter shall be referred to arbitration pursuant to Article 10. All other terms and conditions of this license will apply to the New Location for the balance of the original term.
6.6 The Licensee may deliver a written notice to the Owner cancelling this license and thereafter the license and the rights herein granted will terminate 180 days after the date of receipt by the Owner of such written notice.
6.7 Notwithstanding subsection 4.1 (j), any building, machinery, plant, equipment, apparatus or other improvements to the Land (collectively, the "Improvements") that remains unremoved from the Land:
(a) upon the cancellation of this license pursuant to section 6.1, section 6.4 or section 6.6; or
(b) thirty days after the expiration of this license or the cancellation of this license pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this license),
shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.
6.8 If the Owner elects to assume ownership of any Improvements pursuant to section 6.7, the Owner may remove them from the Land and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.
6.9 The rights of the Owner under section 6.7 and section 6.8 shall be deemed to survive the expiration or earlier cancellation of this license.
Article 7 – Security
7.1 The security in the sum of $· and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this license 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 Licensee 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 license.
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 Licensee, demand the amount to be changed to that specified in a notice and the Licensee 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 license, 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 Licensee, as the case may be, at the addresses specified for each on the first page of this license, 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 license 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 Licensee 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 Licensee.
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 license shall not entitle the Licensee 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 Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a license, right or interest to others to use or occupy the Land, such grant will contain a provision identical to subsection 4.1 (g) of this license obligating the new grantee to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner.
9.4 The terms and provisions of this license 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 license, 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 license 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 license 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 license shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this license as of the day and year first above written.
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
SPECIAL PROVISOS SCHEDULE
Special Provisos:
(1) The Licensee shall comply with the provisions of his Radio Station License issued by Communications Canada and any subsequent amendments to that license.
(2) The Licensee shall inform the Owner of any amendments to his Radio Station License.
License of Occupation for Provincial Communication Site
THIS AGREEMENT made this __________ day of ____________________ , 199
BETWEEN:
NISG̱A'A NATION, of
____________________
(the "Owner")
AND:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, as represented by the Minister of Transportation and Highways of
of ____________________
(the "Licensee")
Whereas the Owner has agreed to grant to the Licensee a license 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 Licensee, the parties agree as follows:
Article 1 – Grant of License
1.1 The Owner, on the terms set forth herein, hereby grants to the Licensee a license to enter on and use the Land for the purpose of constructing and maintaining for communication purposes any building, tower, road, antennae, powerline or other physical infrastructure shown in the site plan and site elevation drawing forming part of the Legal Description Schedule (the "Civil Infrastructure").
Article 2 – Duration
2.1 The duration of the license and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with Article 6.
2.2 Notwithstanding anything to the contrary in this license, so long as:
(a) the Licensee is not in default of any of the material terms or conditions of this license; and
(b) the Licensee has given the Owner, not more than · days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new license to enter on and use the Land
the Owner may agree to offer a new license to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of 60 days from the date of receipt of the notice from the Owner to accept a new license of the Land by executing the new license contained in the notice and delivering it to the Owner.
Article 3 – License Fee
3.1 The Licensee shall pay to the Owner a license fee of $1.00 for the entire term.
Article 4 – Covenants of the Licensee
4.1 The Licensee covenants with the Owner:
(a) 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 Licensee's improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;
(b) 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;
(c) 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 Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
(d) 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 Licensee required to be observed by the Licensee pursuant to this license;
(e) to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee, or
(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land
and the amount of such losses, damages, costs and liabilities shall be payable to the Owner immediately;
(f) 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 Licensee;
(g) to permit the Owner or its authorized representative to enter upon the Land at any time to examine its condition;
(h) to use and occupy the Land in accordance with the provisions of this license including those set forth in the schedule attached and entitled "Special Provisos";
(i) on the expiration or at the earlier cancellation of this license:
(i) to quit peaceably and deliver possession of the Land to the Owner,
(ii) 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 Licensee, and
(iii) to restore the surface of the Land to the satisfaction of the Owner acting reasonably,
and to the extent necessary, this covenant shall survive the expiration or cancellation of this license;
(j) to effect, and keep in force during the term, insurance protecting the Owner and the Licensee (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 so long as the Licensee is Her Majesty the Queen in Right of the Province of British Columbia or a British Columbia crown corporation, the Owner will waive the requirements of this subsection on the delivery to the Owner of confirmation that the Licensee is self insured;
(k) notwithstanding subsection (j), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee 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 Licensee is self-insuring this section shall not apply; and
(l) 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.
Article 5 – Assignment
5.1 The Licensee shall not assign this license or grant a sublicense of any part of the Land without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
5.2 Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner, assign its interest in all or a part of the Land to a British Columbia crown corporation provided that the Licensee gives written notice of any such change at least 120 days prior to the next anniversary date of the term of this license.
5.3 No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this license.
Article 6 – Cancellation
6.1 If the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:
(a) 30 days; or
(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout
then, and in any such case, the Owner may cancel this license and, notwithstanding subsection 4.1 (i), any fixtures to the Land shall become, at the discretion of the Owner, the property of the Owner.
6.2 If this license is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent, is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this license and the rights herein granted.
6.3 If the Licensee ceases to use the Land for the purposes permitted herein and the Licensee 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 license and the rights herein granted.
6.4 If the Owner requires a portion of the Land for a public purpose, the Owner may, in accordance with section 6.5 and on 180 days written notice to the Licensee, cancel this license and the rights herein granted with respect to no more than 5% of the whole of the Land.
6.5 Concurrently with the notice referred to in section 6.4, the Owner will give the Licensee written notice that the Owner will, at its cost, relocate the Licensee's structures and improvements that are materially affected by the cancellation in Section 6.4 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 Licensee, be of sufficient size to accommodate the Licensee's structures and improvements and be equally suitable for the purposes of the Licensee. The Owner will pay for any reasonable costs of moving the Licensee and its structures and improvements to the New Location. If the Licensee's structures and improvements cannot be moved to the New Location, the Owner will pay to the Licensee the reasonable costs of constructing new improvements on the New Location. As full compensation for all other costs, expenses and damages that the Licensee may incur in connection with the relocation, including disruption and loss of business, the parties shall agree on a lump sum payment and failing agreement, the matter shall be referred to arbitration pursuant to Article 10. All other terms and conditions of this license will apply to the New Location for the balance of the original term.
6.6 The Licensee may deliver a written notice to the Owner cancelling this license and thereafter the license and the rights herein granted will terminate 180 days after the date of receipt by the Owner of such written notice.
6.7 Notwithstanding subsection 4.1 (i), any buildings, machinery, plant, equipment and apparatus and all other improvements to the Land (collectively, the "Improvements") that remain unremoved from the Land:
(a) upon the cancellation of this license pursuant to section 6.1, section 6.4 or section 6.6; or
(b) thirty days after the expiration or cancellation of this license pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this license)
shall, at the discretion of the owner, be forfeited to and become the property of the Owner.
6.8 If the Owner elects to assume ownership of any above-ground Improvements pursuant to section 6.7, the Owner may remove them from the Land and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.
6.9 The rights of the Owner under section 6.7 and section 6.8 shall be deemed to survive the expiration or earlier cancellation of this license.
Article 7 – Security
7.1 The security in the sum of $1.00 and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this license shall be maintained in effect until such time as the Owner certifies in writing that such obligations have been fully performed. So long as the Licensee is Her Majesty the Queen in Right of the Province of British Columbia or a British Columbia crown corporation, the Owner will waive the requirements of this section.
7.2 In the event the Licensee 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 license.
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 Licensee, demand the amount to be changed to that specified in a notice and the Licensee 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 license, 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 Licensee, as the case may be, at the addresses specified for each on the first page of this license, 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 license and after another address is 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 Licensee 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 Licensee.
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 license shall not entitle the Licensee 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 Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a license, right or interest to others to use or occupy the Land, such grant will contain a provision identical to subsection 4.1 (f) of this license obligating the new grantee to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner.
9.4 The terms and provisions of this license 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 license, 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 license 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 license 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 license shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this license as of the day and year first above written.
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
SPECIAL PROVISOS SCHEDULE
Special Provisos:
(1) The Licensee shall comply with the provisions of his Radio Station License issued by Communications Canada and any subsequent amendments to that license.
(2) The Licensee shall inform the Owner of any amendments to his Radio Station License.
License of Occupation for Communication Site
With Utility Access
THIS AGREEMENT made this __________ day of ____________________ , 199
BETWEEN:
NISG̱A'A NATION, of
____________________
(the "Owner")
AND:
of ____________________
(the "Licensee")
Whereas the Owner has agreed to grant to the Licensee a license 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"; and
Whereas the Owner has agreed to grant to the Licensee a license over a portion (the "Utility Area") of lands described in the schedule attached and entitled "Utility License" for the purpose of providing a powerline to the Land;
Now therefore in consideration of the fee to be paid by, and the covenants of, the Licensee, the parties agree as follows:
Article 1 – Grant of License
1.1 The Owner, on the terms set forth herein, hereby grants to the Licensee:
(a) a license to enter on and use the Land for the purpose of constructing and maintaining for communication purposes any building, tower, road, antennae, powerline or other physical infrastructure shown in the site plan and site elevation drawing forming part of the Legal Description Schedule (the "Civil Infrastructure"); and
(b) a license to enter on and use the Utility Area, with or without equipment, machinery and materials as reasonably required by the Licensee, to construct, instal, operate, maintain, repair, replace and use powerlines and all ancillary works on the Utility Area as reasonably required to provide power to the Land (the licenses in subsections 1.1 (a) and (b) are collectively "the License").
Article 2 – Duration
2.1 The duration of the License and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with Article 6.
2.2 Notwithstanding anything to the contrary in this License, so long as:
(a) the Licensee is not in default of any of the material terms or conditions of this License; and
(b) the Licensee has given the Owner, not more than · days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new license to enter on and use the Land and the Utility Area
the Owner may agree to offer a new license to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of 60 days from the date of receipt of the notice from the Owner to accept a new License to enter on and use the Land and the Utility Area by executing the new License contained in the notice and delivering it to the Owner.
Article 3 – License Fee
3.1 The Licensee shall pay to the Owner an annual License fee during the term of this License, in advance, as follows:
(a) during the first five years of the term of this License (the "Initial Fee Period"), the Licensee shall pay to the Owner:
(i) on the Commencement Date, the sum of · ; and
(ii) on each annual anniversary of the Commencement Date during the Initial Fee Period, a sum equal to the greater of:
(1) the annual License fee for the immediately preceding year; or
(2) the amount which would be payable on that date under the then-existing policies of the Province of British Columbia with respect to the payment of rent for communication sites located on similar Crown Land (the "Provincial Policies"); and
(b) during each subsequent five year period over the term of this License (a "Subsequent Fee Period"), the Licensee shall pay to the Owner on each annual anniversary of the Commencement Date a sum equal to the greatest of:
(i) the annual License fee for the immediately preceding year,
(ii) the amount which would be payable on that date under the then-existing Provincial Policies, or
(iii) the annual fair market rent for the Subsequent Fee Period, if that annual fair market rent has been determined:
(1) by written agreement between the Owner and the Licensee prior to the Subsequent Fee Period; or
(2) pursuant to the dispute resolution process set out in Article 10, invoked by the Owner or the Licensee prior to the Subsequent Fee Period.
3.2 In this Article, "annual fair market rent" means the fee which a willing licensee at arm's length from the Owner would pay to the Owner in respect of the Land excluding any allocation of value to any fixtures or improvements located on the Land:
(a) belonging to the Licensee; or
(b) not available for use by the Licensee.
Article 4 – Covenants of the Licensee
4.1 The Licensee covenants with the Owner:
(a) to pay the License 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 Licensee in accordance with Article 8;
(b) 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 to the Utility Area or any of the Licensee's improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;
(c) 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 the Utility Area and improvements situate thereon, or their use and occupation;
(d) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Land or the Utility Area or do or suffer to be done thereon by its employees, contractors, agents, invitees or anyone for whom the Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
(e) to deliver to the Owner from time to time, upon demand, proof of insurance provided for in subsection (k), receipts or other evidence of payment of Realty Taxes, insurance premiums and other monetary obligations of the Licensee required to be observed by the Licensee pursuant to this License;
(f) to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee, or
(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land or the Utility Area
and the Owner may add the amount of such losses, damages, costs and liabilities to the Fee and the amount so added shall be payable to the Owner immediately;
(g) to keep the Land and the Utility Area 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 and the Utility Area or any improvement thereon that the Owner, acting reasonably, may direct by notice in writing to the Licensee;
(h) to permit the Owner or its authorized representative to enter upon the Land or the Utility Area at any time to examine its condition;
(i) to use and occupy the Land and the Utility Area in accordance with the provisions of this License including those set forth in the schedule attached and entitled "Special Provisos";
(j) on the expiration or at the earlier cancellation of this License:
(i) to quit peaceably and deliver possession of the Land and the Utility Area to the Owner,
(ii) to remove from the Land and the Utility Area all above-ground buildings, machinery, plant equipment and apparatus and all other improvements to or things on the Land or the Utility Area erected or placed on the Land or the Utility Area by the Licensee, and
(iii) to restore the surface of the Land and the Utility Area to the satisfaction of the Owner acting reasonably,
and to the extent necessary, this covenant shall survive the expiration or cancellation of this License;
(k) to effect and keep in force during the term insurance protecting the Owner and the Licensee (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 or the Utility Area to an amount not less than $1,000,000.00; except, however, that the Owner may, in its sole discretion, waive the requirements of this subsection on the delivery to the Owner of evidence that the Licensee is self insured;
(l) notwithstanding subsection (k), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to subsection (k) 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 Licensee is self-insuring this section shall not apply; and
(m) not to interfere with the activities, works or other improvements of any other person who enters on or uses or occupies the Land or the Utility Area 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 or the Utility Area, in accordance with Section 9.3; and
(n) on request of the Owner, to provide to the Owner an inventory of communication uses sufficient to allow the calculation of fees under the Provincial Policies.
Article 5 – Assignment
5.1 The Licensee shall not assign this License or grant a sublicense of any part of the Land or the Utility Area without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
5.2 Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner, assign its interest in all or a part of the Land and the Utility Area to an affiliate (as defined in the Company Act, RSBC 1996) of the Licensee provided that the Licensee gives written notice of any such change at least 120 days prior to the next anniversary date of the term of this License.
5.3 No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this License.
Article 6 – Cancellation
6.1 If the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:
(a) 30 days; or
(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout;
then the Owner may cancel this License and, notwithstanding subsection 4.1 (j), any fixtures to the Land and Utility Area shall become, at the discretion of the Owner, the property of the Owner.
6.2 If this License is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent, is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this License and the rights herein granted.
6.3 If the Licensee ceases to use the Land or the Utility Area for the purposes permitted herein and the Licensee does not recommence its use of the Land or the Utility Area within 180 days of receipt of written notice from the Owner, the Owner may immediately cancel that portion of this License and the rights herein granted that relates to the Land or the Utility Area as the case may be.
6.4 If the Owner requires a portion of the Land or the Utility Area for a public purpose, the Owner may, in accordance with section 6.5 and on 180 days written notice to the Licensee, cancel this License and the rights herein granted with respect to no more than 5% of the whole of the Land, no more than 5% of the whole of the Utility Area, or no more than 5% of the combined area, as the case may be.
6.5 Concurrently with the notice referred to in section 6.4, the Owner will give the Licensee written notice that the Owner will, at its cost, relocate the Licensee's structures and improvements that are materially affected by the cancellation in Section 6.4 to a different location on the Land or the Utility Area, as the case may be, or to a location on other land immediately adjacent to the Land or the Utility Area (the "New Location"). The New Location must, in the reasonable opinion of the Licensee, be of sufficient size to accommodate the Licensee's structures and improvements and be equally suitable for the purposes of the Licensee. The Owner will pay for any reasonable costs of moving the Licensee and its structures and improvements to the New Location. If the Licensee's structures and improvements cannot be moved to the New Location, the Owner will pay to the Licensee the reasonable costs of constructing new improvements on the New Location. As full compensation for all other costs, expenses and damages that the Licensee may incur in connection with the relocation, including disruption and loss of business, the parties shall agree on a lump sum payment and failing agreement, the matter shall be referred to arbitration pursuant to Article 10. All other terms and conditions of this License will apply to the New Location for the balance of the original term.
6.6 The Licensee may deliver a written notice to the Owner cancelling this License, in whole or with respect to the Utility Area only, and thereafter the License and the rights herein granted will, in whole or with respect to the Utility Area only, terminate 180 days after the date of receipt by the Owner of such written notice.
6.7 Notwithstanding subsection 4.1 (j), any building, machinery, plant, equipment, apparatus or other improvements to the Land or the Utility Area (collectively, the "Improvements") that remains unremoved from the Land or the Utility Area:
(a) upon the cancellation of this License pursuant to section 6.1, section 6.4 or section 6.6; or
(b) thirty days after the expiration of this License or the cancellation of this License pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this License),
shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.
6.8 If the Owner elects to assume ownership of any above-ground Improvements pursuant to section 6.7, the Owner may remove them from the Land or the Utility Area and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.
6.9 The rights of the Owner under section 6.7 and section 6.8 shall be deemed to survive the expiration or earlier cancellation of this License.
Article 7 – Security
7.1 The security in the sum of $· and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this License 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 Licensee 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 License.
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 Licensee, demand the amount to be changed to that specified in a notice and the Licensee 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 License, 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 Licensee, as the case may be, at the addresses specified for each on the first page of this License, 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 License 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 Licensee 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 Licensee.
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 License shall not entitle the Licensee to exclusive possession of the Land or the Utility Area and the Owner may, for any purpose, grant to others interests in the Land or the Utility Area, or rights to enter on or use or occupy the Land or the Utility Area, or may otherwise authorize other persons to enter on or use or occupy the Land or the Utility Area, so long as the grant or authorization does not materially affect the exercise of the Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a license, right or interest to others to use or occupy the Land or the Utility Area, such grant will contain a provision identical to subsection 4.1 (g) of this License obligating the new grantee to keep the Land or the Utility Area in a safe, clean and sanitary condition satisfactory to the Owner.
9.4 The terms and provisions of this License 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 License, 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 License 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 License 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 License shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this License as of the day and year first above written.
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
SPECIAL PROVISOS SCHEDULE
Special Provisos:
(1) The Licensee shall comply with the provisions of his Radio Station License issued by Communications Canada and any subsequent amendments to that license.
(2) The Licensee shall inform the Owner of any amendments to his Radio Station License.
License of Occupation for Communication
Site With Road Access
THIS AGREEMENT made this __________ day of ____________________ , 199
BETWEEN:
NISG̱A'A NATION, of
____________________
(the "Owner")
AND:
of ____________________
(the "Licensee")
Whereas the Owner has agreed to grant to the Licensee a license 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"; and
Whereas the Owner has agreed to grant to the Licensee a license to pass and repass over a portion (the "Access Area") of lands described in the schedule attached and entitled "Access License" for the purpose of obtaining access to the Land;
Now therefore in consideration of the fee to be paid by, and the covenants of, the Licensee, the parties agree as follows:
Article 1 – Grant of License
1.1 The Owner, on the terms set forth herein, hereby grants to the Licensee:
(a) a license to enter on and use the Land for the purpose of constructing and maintaining for communication purposes any building, tower, road, antennae, powerline or other physical infrastructure shown in the site plan and site elevation drawing forming part of the Legal Description Schedule (the "Civil Infrastructure"); and
(b) a license to pass and repass over the Access Area, with or without equipment, machinery and materials as reasonably required by the Licensee, and to construct, maintain, repair, replace and use trails, roads and bridges on the Access Area as reasonably required to obtain access to the Land (the licenses in subsections 1.1 (a) and (b) are collectively "the License").
Article 2 – Duration
2.1 The duration of the License and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with Article 6.
2.2 Notwithstanding anything to the contrary in this License, so long as:
(a) the Licensee is not in default of any of the material terms or conditions of this License; and
(b) the Licensee has given the Owner, not more than · days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new license to enter on and use the Land and the Access Area
the Owner may agree to offer a new license to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of 60 days from the date of receipt of the notice from the Owner to accept a new License to enter on and use the Land and the Access Area by executing the new License contained in the notice and delivering it to the Owner.
Article 3 – License Fee
3.1 The Licensee shall pay to the Owner an annual License fee during the term of this License, in advance, as follows:
(a) during the first five years of the term of this License (the "Initial Fee Period"), the Licensee shall pay to the Owner:
(i) on the Commencement Date, the sum of · ; and
(ii) on each annual anniversary of the Commencement Date during the Initial Fee Period, a sum equal to the greater of:
(1) the annual License fee for the immediately preceding year; or
(2) the amount which would be payable on that date under the then-existing policies of the Province of British Columbia with respect to the payment of rent for communication sites located on similar Crown Land (the "Provincial Policies"); and
(b) during each subsequent five year period over the term of this License (a "Subsequent Fee Period"), the Licensee shall pay to the Owner on each annual anniversary of the Commencement Date a sum equal to the greatest of:
(i) the annual License fee for the immediately preceding year,
(ii) the amount which would be payable on that date under the then-existing Provincial Policies, or
(iii) the annual fair market rent for the Subsequent Fee Period, if that annual fair market rent has been determined:
(1) by written agreement between the Owner and the Licensee prior to the Subsequent Fee Period; or
(2) pursuant to the dispute resolution process set out in Article 10, invoked by the Owner or the Licensee prior to the Subsequent Fee Period.
3.2 In this Article, "annual fair market rent" means the fee which a willing licensee at arm's length from the Owner would pay to the Owner in respect of the Land excluding any allocation of value to any fixtures or improvements located on the Land:
(a) belonging to the Licensee; or
(b) not available for use by the Licensee.
Article 4 – Covenants of the Licensee
4.1 The Licensee covenants with the Owner:
(a) to pay the License 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 Licensee in accordance with Article 8;
(b) 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 to the Access Area or any of the Licensee's improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;
(c) 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 the Access Area and improvements situate thereon, or their use and occupation;
(d) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Land or the Access Area or do or suffer to be done thereon by its employees, contractors, agents, invitees or anyone for whom the Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
(e) to deliver to the Owner from time to time, upon demand, proof of insurance provided for in subsection (k), receipts or other evidence of payment of Realty Taxes, insurance premiums and other monetary obligations of the Licensee required to be observed by the Licensee pursuant to this License;
(f) to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee, or
(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land or the Access Area
and the Owner may add the amount of such losses, damages, costs and liabilities to the Fee and the amount so added shall be payable to the Owner immediately;
(g) to keep the Land and the Access Area 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 and the Access Area or any improvement thereon that the Owner, acting reasonably, may direct by notice in writing to the Licensee;
(h) to permit the Owner or its authorized representative to enter upon the Land or the Access Area at any time to examine its condition;
(i) to use and occupy the Land and the Access Area in accordance with the provisions of this License including those set forth in the schedule attached and entitled "Special Provisos";
(j) on the expiration or at the earlier cancellation of this License:
(i) to quit peaceably and deliver possession of the Land and the Access Area to the Owner,
(ii) to remove from the Land and the Access Area all above-ground buildings, machinery, plant equipment and apparatus and all other improvements to or things on the Land or the Access Area erected or placed on the Land or the Access Area by the Licensee, and
(iii) to restore the surface of the Land and the Access Area to the satisfaction of the Owner acting reasonably,
and to the extent necessary, this covenant shall survive the expiration or cancellation of this License;
(k) to effect and keep in force during the term insurance protecting the Owner and the Licensee (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 or the Access Area to an amount not less than $1,000,000.00; except, however, that the Owner may, in its sole discretion, waive the requirements of this subsection on the delivery to the Owner of evidence that the Licensee is self insured;
(l) notwithstanding subsection (k), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to subsection (k) 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 Licensee is self-insuring this section shall not apply; and
(m) not to interfere with the activities, works or other improvements of any other person who enters on or uses or occupies the Land or the Access Area 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 or the Access Area, in accordance with Section 9.3; and
(n) on request of the Owner, to provide to the Owner an inventory of communication uses sufficient to allow the calculation of fees under the Provincial Policies.
Article 5 – Assignment
5.1 The Licensee shall not assign this License or grant a sublicense of any part of the Land or the Access Area without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
5.2 Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner, assign its interest in all or a part of the Land and the Access Area to an affiliate (as defined in the Company Act, RSBC 1996) of the Licensee provided that the Licensee gives written notice of any such change at least 120 days prior to the next anniversary date of the term of this License.
5.3 No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this License.
Article 6 – Cancellation
6.1 If the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:
(a) 30 days; or
(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout;
then the Owner may cancel this License and, notwithstanding subsection 4.1 (j), any fixtures to the Land and Access Area shall become, at the discretion of the Owner, the property of the Owner.
6.2 If this License is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent, is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this License and the rights herein granted.
6.3 If the Licensee ceases to use the Land or the Access Area for the purposes permitted herein and the Licensee does not recommence its use of the Land or the Access Area within 180 days of receipt of written notice from the Owner, the Owner may immediately cancel that portion of this License and the rights herein granted that relates to the Land or the Access Area as the case may be.
6.4 If the Owner requires a portion of the Land or the Access Area for a public purpose, the Owner may, in accordance with section 6.5 and on 180 days written notice to the Licensee, cancel this License and the rights herein granted with respect to no more than 5% of the whole of the Land, or no more than 5% of the whole of the Access Area, or no more than 5% of the combined area, as the case may be.
6.5 Concurrently with the notice referred to in section 6.4, the Owner will give the Licensee written notice that the Owner will, at its cost, relocate the Licensee's structures and improvements that are materially affected by the cancellation in Section 6.4 to a different location on the Land or the Access Area, as the case may be, or to a location on other land immediately adjacent to the Land or the Access Area (the "New Location"). The New Location must, in the reasonable opinion of the Licensee, be of sufficient size to accommodate the Licensee's structures and improvements and be equally suitable for the purposes of the Licensee. The Owner will pay for any reasonable costs of moving the Licensee and its structures and improvements to the New Location. If the Licensee's structures and improvements cannot be moved to the New Location, the Owner will pay to the Licensee the reasonable costs of constructing new improvements on the New Location. As full compensation for all other costs, expenses and damages that the Licensee may incur in connection with the relocation, including disruption and loss of business, the parties shall agree on a lump sum payment and failing agreement, the matter shall be referred to arbitration pursuant to Article 10. All other terms and conditions of this License will apply to the New Location for the balance of the original term.
6.6 The Licensee may deliver a written notice to the Owner cancelling this License, in whole or with respect to the Access Area only, and thereafter the License and the rights herein granted will, in whole or with respect to the Access Area only, terminate 180 days after the date of receipt by the Owner of such written notice.
6.7 Notwithstanding subsection 4.1 (j), any building, machinery, plant, equipment, apparatus or other improvements to the Land or the Access Area (collectively, the "Improvements") that remains unremoved from the Land or the Access Area:
(a) upon the cancellation of this License pursuant to section 6.1, section 6.4 or section 6.6; or
(b) thirty days after the expiration of this License or the cancellation of this License pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this License),
shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.
6.8 If the Owner elects to assume ownership of any above-ground Improvements pursuant to section 6.7, the Owner may remove them from the Land or the Access Area and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.
6.9 The rights of the Owner under section 6.7 and section 6.8 shall be deemed to survive the expiration or earlier cancellation of this License.
Article 7 – Security
7.1 The security in the sum of $· and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this License 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 Licensee 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 License.
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 Licensee, demand the amount to be changed to that specified in a notice and the Licensee 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 License, 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 Licensee, as the case may be, at the addresses specified for each on the first page of this License, 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 License 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 Licensee 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 Licensee.
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 License shall not entitle the Licensee to exclusive possession of the Land or the Access Area and the Owner may, for any purpose, grant to others interests in the Land or the Access Area, or rights to enter on or use or occupy the Land or the Access Area, or may otherwise authorize other persons to enter on or use or occupy the Land or the Access Area, so long as the grant or authorization does not materially affect the exercise of the Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a license, right or interest to others to use or occupy the Land or the Access Area, such grant will contain a provision identical to subsection 4.1 (g) of this License obligating the new grantee to keep the Land or the Access Area in a safe, clean and sanitary condition satisfactory to the Owner.
9.4 The terms and provisions of this License 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 License, 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 License 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 License 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 License shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this License as of the day and year first above written.
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
SPECIAL PROVISOS SCHEDULE
Special Provisos:
(1) The Licensee shall comply with the provisions of his Radio Station License issued by Communications Canada and any subsequent amendments to that license.
(2) The Licensee shall inform the Owner of any amendments to his Radio Station License.
License of Occupation for Communication Site
With Road Access and Utility Access
THIS AGREEMENT made this __________ day of ____________________, 199
BETWEEN:
NISG̱A'A NATION, of
____________________
(the "Owner")
AND:
of ____________________
(the "Licensee")
Whereas the Owner has agreed to grant to the Licensee a license 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"; and
Whereas the Owner has agreed to grant to the Licensee a license to pass and repass over a portion (the "Access Area") of lands described in the schedule attached and entitled "Access License" for the purpose of obtaining access to the Land;
Whereas the Owner has agreed to grant to the Licensee a license over a portion (the "Utility Area") of lands described in the schedule attached and entitled "Utility License" for the purpose of providing a powerline to the Land;
Now therefore in consideration of the fee to be paid by, and the covenants of, the Licensee, the parties agree as follows:
Article 1 – Grant of License
1.1 The Owner, on the terms set forth herein, hereby grants to the Licensee:
(a) a license to enter on and use the Land for the purpose of constructing and maintaining for communication purposes any building, tower, road, antennae, powerline or other physical infrastructure shown in the site plan and site elevation drawing forming part of the Legal Description Schedule (the "Civil Infrastructure"); and
(b) a license to pass and repass over the Access Area, with or without equipment, machinery and materials as reasonably required by the Licensee, and to construct, maintain, repair, replace and use trails, roads and bridges on the Access Area as reasonably required to obtain access to the Lands; and
(c) a license to enter on and use the Utility Area, with or without equipment, machinery and materials as reasonably required by the Licensee, to construct, instal, operate, maintain, repair, replace and use powerlines and all ancillary works on the Utility Area as reasonably required to provide power to the Land (the licenses in subsections 1.1 (a), (b), and (c) are collectively "the License").
Article 2 – Duration
2.1 The duration of the License and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with Article 6.
2.2 Notwithstanding anything to the contrary in this License, so long as:
(a) the Licensee is not in default of any of the material terms or conditions of this License; and
(b) the Licensee has given the Owner, not more than · days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new license to enter on and use the Land and the Access Area and the Utility Area
the Owner may agree to offer a new license to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of 60 days from the date of receipt of the notice from the Owner to accept a new License to enter on and use the Land and the Access Area and the Utility Area by executing the new License contained in the notice and delivering it to the Owner.
Article 3 – License Fee
3.1 The Licensee shall pay to the Owner an annual License fee during the term of this License, in advance, as follows:
(a) during the first five years of the term of this License (the "Initial Fee Period"), the Licensee shall pay to the Owner:
(i) on the Commencement Date, the sum of · ; and
(ii) on each annual anniversary of the Commencement Date during the Initial Fee Period, a sum equal to the greater of:
(1) the annual License fee for the immediately preceding year; or
(2) the amount which would be payable on that date under the then-existing policies of the Province of British Columbia with respect to the payment of rent for communication sites located on similar Crown Land (the "Provincial Policies"); and
(b) during each subsequent five year period over the term of this License (a "Subsequent Fee Period"), the Licensee shall pay to the Owner on each annual anniversary of the Commencement Date a sum equal to the greatest of:
(i) the annual License fee for the immediately preceding year,
(ii) the amount which would be payable on that date under the then-existing Provincial Policies, or
(iii) the annual fair market rent for the Subsequent Fee Period, if that annual fair market rent has been determined:
(1) by written agreement between the Owner and the Licensee prior to the Subsequent Fee Period; or
(2) pursuant to the dispute resolution process set out in Article 10, invoked by the Owner or the Licensee prior to the Subsequent Fee Period.
3.2 In this Article, "annual fair market rent" means the fee which a willing licensee at arm's length from the Owner would pay to the Owner in respect of the Land excluding any allocation of value to any fixtures or improvements located on the Land:
(a) belonging to the Licensee; or
(a) not available for use by the Licensee.
Article 4 – Covenants of the Licensee
4.1 The Licensee covenants with the Owner:
(a) to pay the License 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 Licensee in accordance with Article 8;
(b) 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, the Access Area or the Utility Area or any of the Licensee's improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;
(c) 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, the Access Area or the Utility Area and improvements situate thereon, or their use and occupation;
(d) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Land, the Access Area or the Utility Area or do or suffer to be done thereon by its employees, contractors, agents, invitees or anyone for whom the Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
(e) to deliver to the Owner from time to time, upon demand, proof of insurance provided for in subsection (k), receipts or other evidence of payment of Realty Taxes, insurance premiums and other monetary obligations of the Licensee required to be observed by the Licensee pursuant to this License;
(f) to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee, or
(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land, the Access Area or the Utility Area
and the Owner may add the amount of such losses, damages, costs and liabilities to the Fee and the amount so added shall be payable to the Owner immediately;
(g) to keep the Land, the Access Area and the Utility Area 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, the Access Area and the Utility Area or any improvement thereon that the Owner, acting reasonably, may direct by notice in writing to the Licensee;
(h) to permit the Owner or its authorized representative to enter upon the Land, the Access Area or the Utility Area at any time to examine its condition;
(i) to use and occupy the Land, the Access Area and the Utility Area in accordance with the provisions of this License including those set forth in the schedule attached and entitled "Special Provisos";
(j) on the expiration or at the earlier cancellation of this License:
(i) to quit peaceably and deliver possession of the Land, the Access Area and the Utility Area to the Owner,
(ii) to remove from the Land, the Access Area and the Utility Area all above-ground buildings, machinery, plant equipment and apparatus and all other improvements to or things on the Land, the Access Area or the Utility Area erected or placed on the Land, the Access Area or the Utility Area by the Licensee, and
(iii) to restore the surface of the Land, the Access Area and the Utility Area to the satisfaction of the Owner acting reasonably,
and to the extent necessary, this covenant shall survive the expiration or cancellation of this License;
(k) to effect and keep in force during the term insurance protecting the Owner and the Licensee (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, the Access Area or the Utility Area to an amount not less than $1,000,000.00; except, however, that the Owner may, in its sole discretion, waive the requirements of this subsection on the delivery to the Owner of evidence that the Licensee is self insured;
(l) notwithstanding subsection (k), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to subsection (k) 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 Licensee is self-insuring this section shall not apply; and
(m) not to interfere with the activities, works or other improvements of any other person who enters on or uses or occupies the Land, the Access Area or the Utility Area 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, the Access Area or the Utility Area in accordance with Section 9.3; and
(n) on request of the Owner, to provide to the Owner an inventory of communication uses sufficient to allow the calculation of fees under the Provincial Policies.
Article 5 – Assignment
5.1 The Licensee shall not assign this License or grant a sublicense of any part of the Land, the Access Area or the Utility Area without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
5.2 Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner, assign its interest in all or a part of the Land, the Access Area or the Utility Area to an affiliate (as defined in the Company Act, RSBC 1996) of the Licensee provided that the Licensee gives written notice of any such change at least 120 days prior to the next anniversary date of the term of this License.
5.3 No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this License.
Article 6 – Cancellation
6.1 If the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:
(a) 30 days; or
(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout;
then the Owner may cancel this License and, notwithstanding subsection 4.1 (j), any fixtures to the Land, Access Area and the Utility Area shall become, at the discretion of the Owner, the property of the Owner.
6.2 If this License is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent, is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this License and the rights herein granted.
6.3 If the Licensee ceases to use the Land, the Access Area or the Utility Area for the purposes permitted herein and the Licensee does not recommence its use of the Land, the Access Area or the Utility Area within 180 days of receipt of written notice from the Owner, the Owner may immediately cancel that portion of this License and the rights herein granted that relates to the Land, the Access Area or the Utility Area as the case may be.
6.4 If the Owner requires a portion of the Land, the Access Area or the Utility Area for a public purpose, the Owner may, in accordance with section 6.5 and on 180 days written notice to the Licensee, cancel this License and the rights herein granted with respect to no more than 5% of the whole of the Land, no more than 5% of the whole of the Access Area, no more than 5% of the whole of the Utility Area, or no more than 5% of the combined area, as the case may be.
6.5 Concurrently with the notice referred to in section 6.4, the Owner will give the Licensee written notice that the Owner will, at its cost, relocate the Licensee's structures and improvements that are materially affected by the cancellation in Section 6.4 to a different location on the Land, the Access Area or the Utility Area as the case may be, or to a location on other land immediately adjacent to the Land, the Access Area or the Utility Area (the "New Location"). The New Location must, in the reasonable opinion of the Licensee, be of sufficient size to accommodate the Licensee's structures and improvements and be equally suitable for the purposes of the Licensee. The Owner will pay for any reasonable costs of moving the Licensee and its structures and improvements to the New Location. If the Licensee's structures and improvements cannot be moved to the New Location, the Owner will pay to the Licensee the reasonable costs of constructing new improvements on the New Location. As full compensation for all other costs, expenses and damages that the Licensee may incur in connection with the relocation, including disruption and loss of business, the parties shall agree on a lump sum payment and failing agreement, the matter shall be referred to arbitration pursuant to Article 10. All other terms and conditions of this License will apply to the New Location for the balance of the original term.
6.6 The Licensee may deliver a written notice to the Owner cancelling this License, in whole or with respect to the Access Area only or to the Utility Area only, and thereafter the License and the rights herein granted will, in whole or with respect to the Access Area only, terminate 180 days after the date of receipt by the Owner of such written notice.
6.7 Notwithstanding subsection 4.1 (j), any building, machinery, plant, equipment, apparatus or other improvements to the Land, the Access Area or the Utility Area (collectively, the "Improvements") that remains unremoved from the Land, the Access Area or the Utility Area:
(a) upon the cancellation of this License pursuant to section 6.1, section 6.4 or section 6.6; or
(b) thirty days after the expiration of this License or the cancellation of this License pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this License),
shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.
6.8 If the Owner elects to assume ownership of any above-ground Improvements pursuant to section 6.7, the Owner may remove them from the Land, the Access Area or the Utility Area and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.
6.9 The rights of the Owner under section 6.7 and section 6.8 shall be deemed to survive the expiration or earlier cancellation of this License.
Article 7 – Security
7.1 The security in the sum of $· and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this License 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 Licensee 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 License.
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 Licensee, demand the amount to be changed to that specified in a notice and the Licensee 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 License, 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 Licensee, as the case may be, at the addresses specified for each on the first page of this License, 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 License 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 Licensee 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 Licensee.
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 License shall not entitle the Licensee to exclusive possession of the Land, the Access Area or the Utility Area and the Owner may, for any purpose, grant to others interests in the Land, the Access Area or the Utility Area or rights to enter on or use or occupy the Land, the Access Area or the Utility Area or may otherwise authorize other persons to enter on or use or occupy the Land, the Access Area or the Utility Area so long as the grant or authorization does not materially affect the exercise of the Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a license, right or interest to others to use or occupy the Land, the Access Area or the Utility Area such grant will contain a provision identical to subsection 4.1 (g) of this License obligating the new grantee to keep the Land, the Access Area or the Utility Area in a safe, clean and sanitary condition satisfactory to the Owner.
9.4 The terms and provisions of this License 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 License, 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 License 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 License 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 License shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this License as of the day and year first above written.
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
SPECIAL PROVISOS SCHEDULE
Special Provisos:
(1) The Licensee shall comply with the provisions of his Radio Station License issued by Communications Canada and any subsequent amendments to that license.
(2) The Licensee shall inform the Owner of any amendments to his Radio Station License.
License of Occupation for Hydro Communication Site
THIS AGREEMENT made this __________ day of ____________________, 199
BETWEEN:
NISG̱A'A NATION, of
____________________
(the "Owner")
AND:
of ____________________
(the "Licensee")
Whereas the Owner has agreed to grant to the Licensee a license 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 Licensee, the parties agree as follows:
Article 1 – Grant of License
1.1 The Owner, on the terms set forth herein, hereby grants to the Licensee a license to enter on and use the Land for the purpose of constructing and maintaining for communication purposes any building, tower, road, antennae, powerline or other physical infrastructure shown in the site plan and site elevation drawing forming part of the Legal Description Schedule (the "Civil Infrastructure").
Article 2 – Duration
2.1 The duration of the license and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with Article 6.
2.2 Notwithstanding anything to the contrary in this license, so long as:
(a) the Licensee is not in default of any of the material terms or conditions of this license; and
(b) the Licensee has given the Owner, not more than · days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new license to enter on and use the Land
the Owner may agree to offer a new license to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of 60 days from the date of receipt of the notice from the Owner to accept a new license to enter on and use the Land by executing the new license contained in the notice and delivering it to the Owner.
Article 3 – License Fee
3.1 The Licensee shall pay to the Owner an annual license fee during the term of this license, in advance, as follows:
(a) during the first five years of the term of this license (the "Initial Fee Period"), the Licensee shall pay to the Owner:
(i) on the Commencement Date, the sum of · ; and
(ii) on each annual anniversary of the Commencement Date during the Initial Fee Period, a sum equal to the greater of:
(1) the annual license fee for the immediately preceding year; or
(2) the amount which would be payable on that date under the then-existing policies of the Province of British Columbia with respect to the payment of rent for communication sites located on similar Crown Land (the "Provincial Policies"); and
(b) during each subsequent five year period over the term of this license (a "Subsequent Fee Period"), the Licensee shall pay to the Owner on each annual anniversary of the Commencement Date a sum equal to the greatest of:
(i) the annual license fee for the immediately preceding year;
(ii) the amount which would be payable on that date under the then-existing Provincial Policies; or
(iii) the annual fair market rent for the Subsequent Fee Period, if that annual fair market rent has been determined:
(1) by written agreement between the Owner and the Licensee prior to the Subsequent Fee Period; or
(2) pursuant to the dispute resolution process set out in Article 10, invoked by the Owner or the Licensee prior to the Subsequent Fee Period.
3.2 In this Article, "annual fair market rent" means the fee which a willing licensee at arm's length from the Owner would pay to the Owner in respect of the Land excluding any allocation of value to any fixtures or improvements located on the Land:
(a) belonging to the Licensee; or
(b) not available for use by the Licensee.
Article 4 – Covenants of the Licensee
4.1 The Licensee covenants with the Owner:
(a) to pay the license 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 Licensee in accordance with Article 8;
(b) 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 Licensee's improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;
(c) 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;
(d) 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 Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
(e) to deliver to the Owner from time to time, upon demand, proof of insurance provided for in subsection (k), receipts or other evidence of payment of Realty Taxes, insurance premiums and other monetary obligations of the Licensee required to be observed by the Licensee pursuant to this license;
(f) to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee, or
(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land
and the Owner may add the amount of such losses, damages, costs and liabilities to the Fee and the amount so added shall be payable to the Owner immediately, but not for an action against the Owner based on nuisance or the rule Rylands v. Fletcher unless the Licensee was negligent;
(g) 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 Licensee;
(h) to permit the Owner or its authorized representative to enter upon the Land at any time to examine its condition;
(i) to use and occupy the Land in accordance with the provisions of this license including those set forth in the schedule attached and entitled "Special Provisos";
(j) on the expiration or at the earlier cancellation of this license:
(i) to quit peaceably and deliver possession of the Land to the Owner,
(ii) 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 Licensee, and
(iii) to restore the surface of the Land to the satisfaction of the Owner acting reasonably,
and to the extent necessary, this covenant shall survive the expiration or cancellation of this license;
(k) to effect and keep in force during the term insurance protecting the Owner and the Licensee (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; provided, 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 Licensee is self insured;
(l) notwithstanding subsection (k), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to subsection (k) 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 Licensee is self-insuring this section shall not apply; and
(m) 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;
(n) on request of the Owner, to provide the Owner an inventory of communication uses sufficient to allow the calculation of fees under the Provincial Policies.
Article 5 – Assignment
5.1 The Licensee shall not assign this license or grant a sublicense of any part of the Land without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
5.2 Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner, assign its interest in all or a part of the Land to an affiliate (as defined in the Company Act, RSBC 1996) of the Licensee provided that the Licensee gives written notice of any such change at least 120 days prior to the next anniversary date of the term of this license.
5.3 No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this license.
Article 6 – Cancellation
6.1 If the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:
(a) 30 days; or
(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout;
then the Owner may cancel this license and, notwithstanding subsection 4.1 (j), any fixtures to the Land shall become, at the discretion of the Owner, the property of the Owner.
6.2 If this license is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent, is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this license and the rights herein granted.
6.3 If the Licensee ceases to use the Land for the purposes permitted herein and the Licensee 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 license and the rights herein granted.
6.4 If the Owner requires a portion of the Land for a public purpose, the Owner may, in accordance with section 6.5 and on 180 days written notice to the Licensee, cancel this license and the rights herein granted with respect to no more than 5% of the whole of the Land.
6.5 Concurrently with the notice referred to in section 6.4, the Owner will give the Licensee written notice that the Owner will, at its cost, relocate the Licensee's structures and improvements that are materially affected by the cancellation in Section 6.4 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 Licensee, be of sufficient size to accommodate the Licensee's structures and improvements and be equally suitable for the purposes of the Licensee. The Owner will pay for any reasonable costs of moving the Licensee and its structures and improvements to the New Location. If the Licensee's structures and improvements cannot be moved to the New Location, the Owner will pay to the Licensee the reasonable costs of constructing new improvements on the New Location. As full compensation for all other costs, expenses and damages that the Licensee may incur in connection with the relocation, including disruption and loss of business, the parties shall agree on a lump sum payment, and failing agreement, the matter shall be referred to arbitration pursuant to Article 10. All other terms and conditions of this license will apply to the New Location for the balance of the original term.
6.6 The Licensee may deliver a written notice to the Owner cancelling this license and thereafter the license and the rights herein granted will terminate 180 days after the date of receipt by the Owner of such written notice.
6.7 Notwithstanding subsection 4.1 (j), any building, machinery, plant, equipment and apparatus, or other improvements to the Land (collectively, the "Improvements") that remain unremoved from the Land:
(a) upon the cancellation of this license pursuant to section 6.1, section 6.4 or section 6.6; or
(b) thirty days after the expiration of this license or the cancellation of this license pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this license),
shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.
6.8 If the Owner elects to assume ownership of any above-ground Improvements pursuant to section 6.7, the Owner may remove them from the Land and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.
6.9 The rights of the Owner under section 6.7 and section 6.8 shall be deemed to survive the expiration or earlier cancellation of this license.
Article 7 – Security
7.1 The security in the sum of $· and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this license 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 If the Licensee 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 license.
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 Licensee, demand the amount to be changed to that specified in a notice and the Licensee 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 license, 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 Licensee, as the case may be, at the addresses specified for each on the first page of this license, 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 license 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 Licensee 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 Licensee.
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 license shall not entitle the Licensee 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 Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a license, right or interest to others to use or occupy the Land, such grant will contain a provision identical to subsection 4.1 (g) of this license obligating the new grantee to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner.
9. 4 The terms and provisions of this license 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 license, 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 license 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 license 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 license shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this license as of the day and year first above written.
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
SPECIAL PROVISOS SCHEDULE
Special Provisos:
(1) The Licensee shall comply with the provisions of his Radio Station License issued by Communications Canada and any subsequent amendments to that license.
(2) The Licensee shall inform the Owner of any amendments to his Radio Station License.
License of Occupation for Forestry Experimental Plots
THIS AGREEMENT made this __________ day of ____________________, 199
BETWEEN:
NISG̱A'A NATION, of
____________________
(the "Owner")
AND:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, as represented by the Minister of Forests of
of ____________________
(the "Licensee")
Whereas the Owner has agreed to grant to the Licensee a license 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 Licensee, the parties agree as follows:
Article 1 – Grant of License
1.1 The Owner, on the terms set forth herein, hereby grants to the Licensee a license to enter on and use the Land for the purpose of conducting forestry related studies, tests and experiments.
Article 2 – Duration
2.1 The duration of the license and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with Article 6.
2.2 Notwithstanding anything to the contrary in this license, so long as:
(a) the Licensee is not in default of any of the material terms or conditions of this license; and
(b) the Licensee has given the Owner, not more than · days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new license to enter on and use the Land
the Owner may agree to offer a new license to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of 60 days from the date of receipt of the notice from the Owner to accept a new license to enter on and use the Land by executing the new license contained in the notice and delivering it to the Owner.
Article 3 – License Fee
3.1 The Licensee shall pay to the Owner a license fee of $1.00 for the entire term.
Article 4 – Covenants of the Licensee
4.1 The Licensee covenants with the Owner:
(a) 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 Licensee's improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;
(b) 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;
(c) 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 Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
(d) 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 Licensee required to be observed by the Licensee pursuant to this license;
(e) to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors arising out of:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee, or
(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land
and the amount of such losses, damages, costs and liabilities shall be payable to the Owner immediately;
(f) 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 Licensee;
(g) to permit the Owner or its authorized representative to enter upon the Land at any time to examine its condition;
(h) to use and occupy the Land in accordance with the provisions of this license including those set forth in the schedule attached and entitled "Special Provisos";
(i) on the expiration or at the earlier cancellation of this license:
(i) to quit peaceably and deliver possession of the Land to the Owner,
(ii) 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 Licensee, and
(iii) to restore the surface of the Land to the satisfaction of the Owner acting reasonably
and to the extent necessary, this covenant shall survive the expiration or cancellation of this license;
(j) to effect, and keep in force during the term, insurance protecting the Owner and the Licensee (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 so long as the Licensee is Her Majesty the Queen in Right of the Province of British Columbia or a British Columbia crown corporation, the Owner will waive the requirements of this subsection on the delivery to the Owner of confirmation that the Licensee is self insured;
(k) notwithstanding subsection (j), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee 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 Licensee is self-insuring this section shall not apply; and
(l) 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.
Article 5 – Assignment
5.1 The Licensee shall not assign this license or grant a sublicense of any part of the Land without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
5.2 Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner, assign its interest in all or a part of the Land to a British Columbia crown corporation provided that the Licensee gives written notice of any such change at least 120 days prior to the next anniversary date of the term of this license.
5.3 No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this license.
Article 6 – Cancellation
6.1 If the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:
(a) 30 days; or
(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout;
then the Owner may cancel this license and, notwithstanding subsection (i) of section 4.1, any fixtures to the Land shall become, at the discretion of the Owner, the property of the owner.
6.2 If this license is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent, is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this license and the rights herein granted.
6.3 If the Licensee ceases to use the Land for the purposes permitted herein and the Licensee 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 license and the rights herein granted.
6.4 The Licensee may deliver a written notice to the Owner cancelling this license and thereafter the license 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 and apparatus, or other improvements to the Land (collectively, the "Improvements") that remain unremoved from the Land:
(a) upon the cancellation of this license pursuant to section 6.1, or section 6.4; or
(b) thirty days after the expiration or cancellation of this license pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this license)
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 Improvements pursuant to section 6.5, the Owner may remove them from the Land and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.
6.7 The rights of the Owner under section 6.5 and section 6.6 shall be deemed to survive the expiration or earlier cancellation of this license.
Article 7 – Security
7.1 The security in the sum of $1.00 and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this license shall be maintained in effect until such time as the Owner certifies in writing that such obligations have been fully performed. So long as the Licensee is Her Majesty the Queen in Right of the Province of British Columbia or a British Columbia crown corporation, the Owner will waive the requirements of this section.
7.2 If the Licensee 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 license.
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 Licensee, demand the amount to be changed to that specified in a notice and the Licensee 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 license, 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 Licensee, as the case may be, at the addresses specified for each on the first page of this license, 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 license 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 Licensee 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 Licensee.
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 license shall not entitle the Licensee 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 Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a license, right or interest to others to use or occupy the Land, such grant will contain a provision identical to subsection 4.1 (f) of this license obligating the new grantee to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner.
9.4 The terms and provisions of this license 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 license, 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 license 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 license 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 license shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this license as of the day and year first above written.
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
SPECIAL PROVISOS SCHEDULE
License of Occupation for a Hydrometric Station
THIS AGREEMENT made this __________ day of ____________________, 199
BETWEEN:
NISG̱A'A NATION, of
____________________
(the "Owner")
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the Minister of the Environment
of____________________
(the "Licensee")
Whereas the Owner has agreed to grant to the Licensee a license over 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 Licensee, the parties agree as follows:
Article 1 – Grant of License
1.1 The Owner, on the terms set forth herein, hereby grants to the Licensee a license to enter on and use the Land for the purpose of constructing, installing, erecting, maintaining, repairing and replacing any physical infrastructure shown in the Sketch Plan forming part of the Legal Description Schedule (the "Works") and to use the Works for operating a hydrometric station and cable-crossing.
Article 2 – Duration
2.1 The duration of the license and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with the terms hereof.
2.2 Notwithstanding anything to the contrary in this license, so long as:
(a) the Licensee is not in default of any of the material terms of conditions of this license, and
(b) the Licensee has given the Owner, not more than · days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new license of the Land,
the Owner may agree to offer a new license to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of sixty (60) days from the date of receipt of the notice from the Owner to accept a new licence of the Land by executing the new license contained in the notice and delivering it to the Owner.
Article 3 – License Fee
3.1 The Licensee shall pay to the Owner a license fee during the term of this license, in advance, as follows:
(a) during each year of the first five years of the term of this license (the "Initial Fee Period"), the Licensee shall pay to the Owner:
(i) on the Commencement Date, the sum of $200.00; and
(ii) on each annual anniversary of the Commencement Date during the Initial Fee Period, a sum equal to the greater of:
(1) the annual license fee for the immediately preceding year; or
(2) the annual fair market rent; and
(b) during each year of each subsequent five year period over the term of this license (the "Subsequent Fee Period"), the Licensee shall pay to the Owner on each annual anniversary of the Commencement Date a sum equal to the greater of:
(i) the annual license fee for the immediately preceding year; or
(ii) the annual fair market rent for the Subsequent Fee Period, if the annual fair market rent has been determined:
(1) by written agreement between the Owner and the Licensee prior to the Subsequent Fee Period; or
(2) pursuant to the dispute resolution process set out in Article 10, invoked by the Owner or the Licensee prior to the Subsequent Fee Period.
3.2 In this Article, "annual fair market rent" means the fee which a willing licensee at arm's length from the Owner would pay to the Owner in respect of the Land excluding any allocation of value to any fixtures or improvements located on the Land:
(a) belonging to the Licensee; or
(b) not available for use by the Licensee.
Article 4 – Covenants of the Licensee
4.1 The Licensee covenants with the Owner:
(a) to pay the license 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 Licensee in accordance with Article 8;
(b) 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 of the Licensee's (or any sublicensee's of the Licensee) improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;
(c) 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;
(d) 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 Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
(e) to deliver to the Owner from time to time, upon demand, proof of insurance provided for in subsection (k), receipts or other evidence of payment of Realty Taxes, insurance premiums and other monetary obligations of the Licensee required to be observed by the Licensee pursuant to this license;
(f) subject to the Crown Liability and Proceedings Act (Canada) and the Financial Administration Act (Canada), to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, arising out of:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee; and
(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land,
and the Owner may add the amount of such losses, damages, costs and liabilities to the Fee and the amount so added shall be payable to the Owner immediately.
(g) 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 Licensee;
(h) to permit the Owner or its authorized representative to enter upon the Land at any time to examine its condition;
(i) to use and occupy the Land in accordance with the provisions of this license including those set forth in the schedule attached and entitled "Special Provisos";
(j) on the expiration or at the earlier cancellation of this license:
(i) to quit peaceably and deliver possession of the Land to the Owner,
(ii) to remove from the Land all buildings, machinery, plant, equipment and apparatus and all other improvements to or things on the Land erected or placed on the Land by the Licensee; and
(iii) to restore the surface of the Land to the satisfaction of the Owner acting reasonably,
and to the extent necessary, this covenant shall survive the expiration or cancellation of this license;
(k) to effect and keep in force during the term insurance protecting the Owner and the Licensee (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; provided, however, that so long as the Licensee is Her Majesty the Queen in right of Canada or a Canada Crown corporation the Owner will waive the requirements of this subsection on the delivery to the Owner of evidence that the Licensee is self insured;
(l) notwithstanding subsection (k), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to subsection (k) 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 Licensee is self-insuring this section shall not apply; and
(m) not to interfere with the activities of any other person to enter on and use the Land under a subsequent right or interest granted by the Owner in accordance with section 9.3.
Article 5 – Assignment
5.1 The Licensee shall not assign this license or grant a sublicense of any part of the Land without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
5.2 Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner assign its interest in all or part of the Land to a Canada crown corporation provided that the Licensee gives written notice of any such change, at least 120 days prior to the next anniversary date of the term of this license.
5.3 No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this licence.
Article 6 – Cancellation
6.1 In the event that the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:
(a) 30 days; or:
(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout
then, and in any such case, the Owner may cancel this license and, notwithstanding subsection (j) of section 4.1, any fixtures to the Land shall become, at the discretion of the Owner, the property of the Owner.
6.2 In the event that this license is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent or is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this license and the rights herein granted.
6.3 In the event that the Licensee ceases to use the Land for the purposes permitted herein and the Licensee 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 license and the rights herein granted.
6.4 In the event that the Owner requires a portion of the Land for a public purpose, the Owner may, in accordance with section 6.5 and on 180 days written notice to the Licensee, cancel this license and the rights herein granted with respect to no more than 5% of the whole of the Land.
6.5 Concurrently with the notice referred to in section 6.4, the Owner will give the licensee written notice that the Owner will, at its cost, relocate the Licensee's structures and improvements which are materially affected by the cancellation in Section 6.4 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 Licensee, be of sufficient size to accommodate the Licensee's structures and improvements and be equally suitable for the purposes of the Licensee. The Owner will pay for any reasonable costs of moving the Licensee and its structures and improvements to the New Location. If the Licensee's structures and improvements cannot be moved to the New Location, the Owner will pay to the Licensee the reasonable costs of constructing new improvements on the New Location. As full compensation for all other costs, expenses and damages which the Licensee may incur in connection with the relocation, including disruption and loss of business, the parties shall agree on a lump sum payment and failing agreement, the matter shall be referred to arbitration pursuant to Article 10. All other terms and conditions of this license will apply to the New Location for the balance of the original term.
6.6 The Licensee may deliver a written notice to the Owner cancelling this license and thereafter the license and the rights herein granted will terminate 180 days after the date of receipt by the Owner of such written notice.
6.7 Notwithstanding subsection (j) of section 4.1, any buildings, machinery, plant, equipment and apparatus and all other improvements to the Land (collectively, the "Improvements") that remain unremoved from the Land:
(a) upon cancellation of this license pursuant to section 6.1, section 6.4 or section 6.6; or
(b) thirty days after the expiration or cancellation of this license pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this license)
shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.
6.8 If the Owner elects to assume ownership of any Improvements pursuant to section 6.7, the Owner may remove them from the Land and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.
6.9 The rights of the Owner under section 6.7 and section 6.8 shall be deemed to survive the expiration or earlier cancellation of this license.
Article 7 – Security
7.1 The security in the sum of $· and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this license shall be maintained in effect until such time as the Owner certifies in writing that such obligations have been fully performed. So long as the Licensee is Her Majesty the Queen in right of Canada or a Canada crown corporation, the Owner will waive the requirements of this subsection.
7.2 In the event the Licensee 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 license.
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 Licensee, demand the amount to be changed to that specified in a notice and the Licensee shall, within 60 days of such notice, change the Security to that specified and provide the Owner with evidence of the change, except that when no Security is required under section 7.1, this section shall not apply.
Article 8 – Notice
8.1 Where service of a notice or a document is required under this license, 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 and the Licensee at the addresses specified for each on the first page of this license, 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. Provided that 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 license and after another address is 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 Licensee 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 Licensee.
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 license shall not entitle the Licensee to exclusive possession of the Land and the Owner may grant to others rights to use or interests in the Land for any purpose other than that permitted herein, so long as the grant does not materially affect the exercise of the Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably.
9.4 The terms and provisions of this license 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 and if the dispute does not involve a question of public law, the dispute shall be referred to and resolved by arbitration in accordance with sections 10.5 to 10.9.
10.5 Unless the parties otherwise agree, the arbitration shall be conducted by a single arbitrator. The arbitrator shall be chosen by the parties; if they fail to agree on this choice within four (4) weeks following the commencement of their discussion, then either party may request the British Columbia International Commercial Arbitration Centre or such other organization or person agreed to by the parties in writing, to select an arbitrator. The arbitrator chosen shall be independent, impartial and competent.
10.6 The arbitrator shall render his decision in writing within thirty (30) days after the completion of the arbitration or if thirty (30) days is insufficient, then within such further time as is reasonable.
10.7 The arbitration shall be governed by the Commercial Arbitration Code referred to in the Commercial Arbitration Act (Canada) and except as provided in the Commercial Arbitration Code, the determination and award of the arbitration shall be final and binding on both parties.
10.8 The arbitration shall take place in the Province of British Columbia, at a location as the parties may agree and, failing agreement, at a location as the arbitrator may decide.
10.9 During the arbitration, the parties shall continue to perform their obligations under the license. It is not incompatible with this arbitration agreement for a party to request from a court, before or during the arbitration proceedings, an interim measure of protection and for a court to grant such measure.
Article 11 – Interpretation
11.1 In this license, 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 license 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 license 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 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 license as of the day and year first above written.
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
the Minister of the Environment on behalf | ) | |
of Her Majesty the Queen in right of Canada | ) | |
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
SPECIAL PROVISO SCHEDULE
(1) The Licensee may clear the Land and keep it cleared of all or any part of trees, growth, buildings or obstructions now or hereafter on the Land which might interfere with or obstruct the construction, erection, operation, maintenance, removal or replacement of the Works pursuant to this agreement.
(2) Despite subsection 4.1 (j) and section 6.7, at the expiration or cancellation of this license, the Licensee may leave on the Land any concrete foundation for the Works.
License of Occupation for a Navigational Light
THIS AGREEMENT made this __________ day of ____________________, 199
BETWEEN:
NISG̱A'A NATION, of
____________________
(the "Owner")
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
c/o Superintendent, Navigational Aids, Canadian Coast Guard
Marine Navigation Services
25 Huron Street
Victoria BC V8V 4V9
(the "Licensee")
Whereas the Owner has agreed to grant to the Licensee a license 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 Licensee, the parties agree as follows:
Article 1 – Grant of License
1.1 The Owner, on the terms set forth herein, hereby grants to the Licensee a license to enter on and use the Land for the purpose of constructing, installing, erecting, maintaining, operating, repairing and replacing a marine navigation aid.
Article 2 – Duration
2.1 The duration of the license and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with the terms hereof.
2.2 Notwithstanding anything to the contrary in this licence, so long as:
(a) the Licensee is not in default of any of the material terms of conditions of this licence, and
(b) the Licensee has given the Owner, not more than _______ days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new licence of the Land,
the Owner may agree to offer a new licence to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of sixty (60) days from the date of receipt of the notice from the Owner to accept a new licence of the Land by executing the new licence contained in the notice and delivering it to the Owner.
Article 3 -- License Fee
3.1 The Licensee shall pay to the Owner a license fee of $1.00 on the Commencement Date for the entire term of this license.
Article 4 – Covenants of the Licensee
4.1 The Licensee covenants with the Owner:
(a) to pay the license 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 Licensee in accordance with Article 8;
(b) 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 of the Licensee's (or any sublicensee's of the Licensee) improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;
(c) 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;
(d) 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 Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
(e) to deliver to the Owner from time to time, upon demand, proof of insurance provided for in subsection (k), receipts or other evidence of payment of Realty Taxes, insurance premiums and other monetary obligations of the Licensee required to be observed by the Licensee pursuant to this license;
(f) subject to the Crown Liability and Proceedings Act (Canada) and the Financial Administration Act (Canada), to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, arising out of:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee; and
(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land,
and the Owner may add the amount of such losses, damages, costs and liabilities to the Fee and the amount so added shall be payable to the Owner immediately;
(g) 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 Licensee;
(h) to permit the Owner or its authorized representative to enter upon the Land at any time to examine its condition;
(i) to use and occupy the Land in accordance with the provisions of this license including those set forth in the schedule attached and entitled "Special Provisos";
(j) on the expiration or at the earlier cancellation of this license:
(i) to quit peaceably and deliver possession of the Land to the Owner,
(ii) to remove from the Land all buildings, machinery, plant equipment and apparatus and all other improvements to or things on the Land erected or placed on the Land by the Licensee; and
(iii) to restore the surface of the Land to the satisfaction of the Owner acting reasonably,
and to the extent necessary, this covenant shall survive the expiration or cancellation of this license;
(k) to effect and keep in force during the term insurance protecting the Owner and the Licensee (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; provided, however, that so long as the Licensee is Her Majesty the Queen in right of Canada or a Canada Crown corporation, the Owner will waive the requirements of this subsection on the delivery to the Owner of evidence that the Licensee is self insured;
(l) notwithstanding subsection (k), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to subsection (k) 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 Licensee is self-insuring this section shall not apply; and
(m) not to interfere with the activities of any other person to enter on and use the Land under a subsequent right or interest granted by the Owner in accordance with Section 9.3.
Article 5 – Assignment
5.1 The Licensee shall not assign this license or grant a sublicense of any part of the Land without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
5.2 Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner assign its interest in all or a part of the Land to a Canada crown corporation provided that the Licensee gives written notice of any such change, at least 120 days prior to the next anniversary date of the term of this license.
5.3 No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this licence.
Article 6 – Cancellation
6.1 In the event that the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:
(a) 30 days; or
(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout;
then, and in any such case, the Owner may cancel this license and, notwithstanding subsection (j) of section 4.1, any fixtures to the Land shall become, at the discretion of the Owner, the property of the Owner.
6.2 In the event that this license is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent or is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this license and the rights herein granted.
6.3 In the event that the Licensee ceases to use the Land for the purposes permitted herein and the Licensee 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 license and the rights herein granted.
6.4 In the event that the Owner requires a portion of the Land for a public purpose, the Owner may, in accordance with section 6.5 and on 180 days written notice to the Licensee, cancel this license and the rights herein granted with respect to no more than 5% of the whole of the Land.
6.5 Concurrently with the notice referred to in section 6.4, the Owner will give the licensee written notice that the Owner will, at its cost, relocate the Licensee's structures and improvements which are materially affected by the cancellation in Section 6.4 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 Licensee, be of sufficient size to accommodate the Licensee's structures and improvements and be equally suitable for the purposes of the Licensee. The Owner will pay for any reasonable costs of moving the Licensee and its structures and improvements to the New Location. If the Licensee's structures and improvements cannot be moved to the New Location, the Owner will pay to the Licensee the reasonable costs of constructing new improvements on the New Location. As full compensation for all other costs, expenses and damages which the Licensee may incur in connection with the relocation, including disruption and loss of business, the parties shall agree on a lump sum payment and failing agreement, the matter shall be referred to arbitration pursuant to Article 10. All other terms and conditions of this license will apply to the New Location for the balance of the original term.
6.6 The Licensee may deliver a written notice to the Owner cancelling this license and thereafter the license and the rights herein granted will terminate 180 days after the date of receipt by the Owner of such written notice.
6.7 Notwithstanding subsection (j) of section 4.1, any buildings, machinery, plant, equipment and apparatus and all other improvements to the Land (collectively, the "Improvements") that remain unremoved from the Land:
(a) upon the cancellation of this license pursuant to section 6.1, section 6.4 or section 6.6; or
(b) thirty days after the expiration or cancellation of this license pursuant to section 6.2 or section 6.3 (provided that if because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this license)
shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.
6.8 If the Owner elects to assume ownership of any Improvements pursuant to section 6.7, the Owner may remove them from the Land and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.
6.9 The rights of the Owner under section 6.7 and section 6.8 shall be deemed to survive the expiration or earlier cancellation of this license.
Article 7 – Security
7.1 The security in the sum of $· and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this license shall be maintained in effect until such time as the Owner certifies in writing that such obligations have been fully performed. So long as the Licensee is Her Majesty in right of Canada or a Canada crown corporation, the Owner will waive the requirements of this subsection.
7.2 In the event the Licensee 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 license.
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 Licensee, demand the amount to be changed to that specified in a notice and the Licensee shall, within 60 days of such notice, change the Security to that specified and provide the Owner with evidence of the change, except that when no Security is required under section 7.1 this section shall not apply.
Article 8 – Notice
8.1 Where service of a notice or a document is required under this license, 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 and the Licensee at the addresses specified for each on the first page of this license, 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. Provided that 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 license and after another address is 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 Licensee 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 Licensee.
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 license shall not entitle the Licensee to exclusive possession of the Land and the Owner may grant to others rights to use or interests in the Land for any purpose other than that permitted herein, so long as the grant or authorization does not materially affect the exercise of the Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a license, right or interest to others to use or occupy the Land, such grant will contain a provision identical to subsection 4.1 (g) of this license obligating the new grantee to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner.
9.4 The terms and provisions of this license 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 licence 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 and if the dispute does not involve a question of public law, the dispute shall be referred to and resolved by arbitration in accordance with sections 10.5 to 10.9.
10.5 Unless the parties otherwise agree, the arbitration shall be conducted by a single arbitrator. The arbitrator shall be chosen by the parties; if they fail to agree on this choice within four (4) weeks following the commencement of their discussion, then either party may request the British Columbia International Commercial Arbitration Centre or such other organization or person agreed to by the parties in writing, to select an arbitrator. The arbitrator chosen shall be independent, impartial and competent.
10.6 The arbitrator shall render his decision in writing within thirty (30) days after the completion of the arbitration or if thirty (30) days is insufficient, then within such further time as is reasonable.
10.7 The arbitration shall be governed by the Commercial Arbitration Code referred to in the Commercial Arbitration Act (Canada) and except as provided in the Commercial Arbitration Code, the determination and award of the arbitration shall be final and binding on both parties.
10.8 The arbitration shall take place in the Province of British Columbia, at a location as the parties may agree and, failing agreement, at a location as the arbitrator may decide.
10.9 During the arbitration, the parties shall continue to perform their obligations under the license. It is not incompatible with this arbitration agreement for a party to request from a court, before or during the arbitration proceedings, an interim measure of protection and for a court to grant such measure.
Article 11 – Interpretation
11.1 In this license, 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 license 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 license 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 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 license as of the day and year first above written.
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
the Minister of Fisheries and Oceans on | ) | |
behalf of Her Majesty the Queen in right of | ) | |
Canada in the presence of | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
SPECIAL PROVISO SCHEDULE
Special Provisos:
(1) The Licensee may clear the Land and keep it cleared of all or any part of trees, growth, buildings or obstructions now or hereafter on the Land which might interfere with or obstruct the construction, erection, operation, maintenance, removal or replacement of the Navigational Light.
(2) Despite subsection 4.1 (j) and section 6.7, at the expiration or cancellation of this License, the Licensee may leave on the Land any concrete foundation for the Navigational Light.
License of Occupation for Telephone Exchange
THIS AGREEMENT made this __________ day of ____________________, 199
BETWEEN:
NISG̱A'A NATION, of
____________________
(the "Owner")
AND:
BC TEL, of
____________________
(the "Licensee")
Whereas the Owner has agreed to grant to the Licensee a license 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 Licensee, the parties agree as follows:
Article 1 – Grant of License
1.1 The Owner, on the terms set forth herein, hereby grants to the Licensee a license to enter on and use the Land for the purpose of constructing, maintaining, repairing, replacing, removing and operating for communication purposes any building, road, antennae, pole, cable, strand, powerline or other physical infrastructure shown in the site plan forming part of the Legal Description Schedule (the "Civil Infrastructure").
Article 2 – Duration
2.1 The duration of the license and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with Article 6.
2.2 Notwithstanding anything to the contrary in this license, so long as:
(a) the Licensee is not in default of any of the material terms or conditions of this license; and
(b) the Licensee has given the Owner, not more than · days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new license to enter on and use the Land
the Owner may agree to offer a new license to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of 60 days from the date of receipt of the notice from the Owner to accept a new license to enter on and use the Land by executing the new license contained in the notice and delivering it to the Owner.
Article 3 – License Fee
3.1 The Licensee shall pay to the Owner an annual license fee during the term of this license, in advance, as follows:
(a) during the first five years of the term of this license (the "Initial Fee Period"), the Licensee shall pay to the Owner:
(i) on the Commencement Date, the sum of $500.00; and
(ii) on each annual anniversary of the Commencement Date during the Initial Fee Period, a sum equal to the greater of:
(1) the annual license fee for the immediately preceding year; or
(2) the amount which would be payable on that date under the then-existing policies of the Province of British Columbia with respect to the payment of rent for communication sites located on similar Crown Land (the "Provincial Policies"); and
(b) during each subsequent five year period over the term of this license (a "Subsequent Fee Period"), the Licensee shall pay to the Owner on each annual anniversary of the Commencement Date a sum equal to the greatest of:
(i) the annual license fee for the immediately preceding year,
(ii) the amount which would be payable on that date under the then-existing Provincial Policies, or
(iii) the annual fair market rent for the Subsequent Fee Period, if that annual fair market rent has been determined:
(1) by written agreement between the Owner and the Licensee prior to the Subsequent Fee Period; or
(2) pursuant to the dispute resolution process set out in Article 10, invoked by the Owner or the Licensee prior to the Subsequent Fee Period.
3.2 In this Article, "annual fair market rent" means the fee which a willing licensee at arm's length from the Owner would pay to the Owner in respect of the Land excluding any allocation of value to any fixtures or improvements located on the Land:
(a) belonging to the Licensee; or
(b) not available for use by the Licensee.
Article 4 – Covenants of the Licensee
4.1 The Licensee covenants with the Owner:
(a) to pay the license 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 Licensee in accordance with Article 8;
(b) 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 Licensee's improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;
(c) 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;
(d) 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 Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
(e) to deliver to the Owner from time to time, upon demand, proof of insurance provided for in subsection (k), receipts or other evidence of payment of Realty Taxes, insurance premiums and other monetary obligations of the Licensee required to be observed by the Licensee pursuant to this license;
(f) to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee, or
(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land
and the Owner may add the amount of such losses, damages, costs and liabilities to the Fee and the amount so added shall be payable to the Owner immediately;
(g) 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 Licensee;
(h) to permit the Owner or its authorized representative to enter upon the Land at any time to examine its condition;
(i) to use and occupy the Land in accordance with the provisions of this license including those set forth in the schedule attached and entitled "Special Provisos";
(j) on the expiration or at the earlier cancellation of this license:
(i) to quit peaceably and deliver possession of the Land to the Owner,
(ii) 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 Licensee, and
(iii) to restore the surface of the Land to the satisfaction of the Owner acting reasonably,
and to the extent necessary, this covenant shall survive the expiration or cancellation of this license;
(k) to effect and keep in force during the term insurance protecting the Owner and the Licensee (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, however, that the Owner may, in its sole discretion, waive the requirements of this subsection on the delivery to the Owner of evidence that the Licensee is self insured;
(l) notwithstanding subsection (k), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to subsection (k) 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 Licensee is self-insuring this section shall not apply; and
(m) 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; and
(n) on request of the Owner, to provide to the Owner an inventory of communication uses sufficient to allow the calculation of fees under the Provincial Policies.
Article 5 – Assignment
5.1 The Licensee shall not assign this license or grant a sublicense of any part of the Land without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
5.2 Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner, assign its interest in all or a part of the Land to an affiliate (as defined in the Company Act, RSBC 1996) of the Licensee provided that the Licensee gives written notice of any such change at least 120 days prior to the next anniversary date of the term of this license.
5.3 No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this license.
Article 6 – Cancellation
6.1 If the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:
(a) 30 days; or
(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout;
then the Owner may cancel this license and, notwithstanding subsection 4.1 (j), any fixtures to the Land shall become, at the discretion of the Owner, the property of the Owner.
6.2 If this license is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent, is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this license and the rights herein granted.
6.3 If the Licensee ceases to use the Land for the purposes permitted herein and the Licensee 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 license and the rights herein granted.
6.4 If the Owner requires a portion of the Land for a public purpose, the Owner may, in accordance with section 6.5 and on 180 days written notice to the Licensee, cancel this license and the rights herein granted with respect to the whole or any part of the Land.
6.5 Concurrently with the notice referred to in section 6.4, the Owner will give the Licensee written notice that the Owner will, at its cost, relocate the Licensee's structures and improvements that are materially affected by the cancellation in Section 6.4 to a different location on the Land or to a location on other land in the vicinity of the Land (the "New Location"). The New Location must, in the reasonable opinion of the Licensee, be of sufficient size to accommodate the Licensee's structures and improvements and be equally suitable for the purposes of the Licensee. The Owner will pay for any reasonable costs of moving the Licensee and its structures and improvements to the New Location. If the Licensee's structures and improvements cannot be moved to the New Location, the Owner will pay to the Licensee the reasonable costs of constructing new improvements on the New Location. As full compensation for all other costs, expenses and damages that the Licensee may incur in connection with the relocation, including disruption and loss of business, the parties shall agree on a lump sum payment and failing agreement, the matter shall be referred to arbitration pursuant to Article 10. All other terms and conditions of this license will apply to the New Location for the balance of the original term.
6.6 The Licensee may deliver a written notice to the Owner cancelling this license and thereafter the license and the rights herein granted will terminate 180 days after the date of receipt by the Owner of such written notice.
6.7 Notwithstanding subsection 4.1 (j), any building, machinery, plant, equipment, apparatus or other improvements to the Land (collectively, the "Improvements") that remains unremoved from the Land:
(a) upon the cancellation of this license pursuant to section 6.1, section 6.4 or section 6.6; or
(b) thirty days after the expiration of this license or the cancellation of this license pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this license),
shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.
6.8 If the Owner elects to assume ownership of any Improvements pursuant to section 6.7, the Owner may remove them from the Land and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.
6.9 The rights of the Owner under section 6.7 and section 6.8 shall be deemed to survive the expiration or earlier cancellation of this license.
Article 7 – Security
7.1 The security in the sum of $· and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this license 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 Licensee 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 license.
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 Licensee, demand the amount to be changed to that specified in a notice and the Licensee 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 license, 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 Licensee, as the case may be, at the addresses specified for each on the first page of this license, 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 license 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 Licensee 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 Licensee.
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 license shall not entitle the Licensee 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 Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a license, right or interest to others to use or occupy the Land, such grant will contain a provision identical to subsection 4.1 (g) of this license obligating the new grantee to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner.
9.4 The terms and provisions of this license 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 license, 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 license 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 license 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 license shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this license as of the day and year first above written.
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
Permit of Occupation for Waterworks
THIS AGREEMENT made this __________ day of ____________________, 199
BETWEEN:
NISG̱A'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 Nisg̱a'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:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this permit by the Permittee, or
(ii) 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;
(g) 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;
(h) on the termination or cancellation of this permit:
(i) to quit peaceably and deliver possession of the Land to the Owner,
(ii) 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
(iii) 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
(i) 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"):
(a) 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
(b) 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: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SCHEDULE "A"
Legal Description
SCHEDULE "B"
Acknowledgement of Assignment and Assumption
THIS AGREEMENT dated for reference this ____________________ day of ____________________ , ____________________ .
BETWEEN:
NISG̱A'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 Nisg̱a'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 | ) ) | ____________________ OWNER |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ TRANSFEROR |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ TRANSFEREE |
____________________ Address | ) ) | |
____________________ | ) | |
) |
Special Use Permit for Forestry Operations
THIS AGREEMENT made this __________ day of ____________________, 199
BETWEEN:
NISG̱A'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:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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:
(i) any breach, violation or non-performance of any covenant, condition or agreement in this permit by the Permittee, or
(ii) 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;
(g) 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;
(h) to permit the Owner or its authorized representative to enter upon the Land at any time to examine its condition;
(i) on the expiration or at the earlier cancellation of this permit:
(i) to quit peaceably and deliver possession of the Land to the Owner,
(ii) 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,
(iii) 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
(iv) 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;
(j) 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;
(k) 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;
(l) 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;
(m) to erect such fences or gates on the Land that the Owner, acting reasonably, may direct by notice in writing to the Permittee;
(n) 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;
(o) 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;
(p) 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;
(q) not to:
(i) cut any timber on the Land,
(ii) erect any building or other improvement on the Land, or
(iii) 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:
(a) upon the cancellation of this permit pursuant to section 6.1 or section 6.4; or
(b) 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 $ 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: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
SIGNED by a duly authorized signatory of | ) | |
) | ||
in the presence of: | ) | |
____________________ Name | ) ) | ____________________ Authorized Signatory |
____________________ Address | ) ) | |
____________________ | ) | |
) |
LEGAL DESCRIPTION SCHEDULE
1. Legal Description
2. Sketch Plan
Leases
Leases on file at the Department of Indian Affairs and
Northern Development, British Columbia Regional Office
and
at the Office of The Nisg̱a'a Tribal Council
Appendix C-3
APPLICABLE FORMS OF DOCUMENT FOR PUBLIC
UTILITY TRANSMISSION AND DISTRIBUTION
FACILITIES IN PART 2 OF APPENDIX C-1
Grant of Right of Way and Licence for Public Utility Works
To
British Columbia Hydro and Power Authority
This Agreement is dated ____________________ , ____________________
BETWEEN:
NISG̱A'A NATION
[insert address]
(the "Nisg̱a'a Nation")
AND:
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY,
continued under the Hydro and Power Authority Act,
RSBC 1996, c. 212
[insert address]
("Hydro")
WHEREAS:
A. The Nisg̱a'a Nation, Canada and British Columbia have entered into the Nisg̱a'a Final Agreement.
B. The Nisg̱a'a Nation wishes to grant to Hydro rights on Nisg̱a'a Lands for Hydro Works existing on Nisg̱a'a Lands on the effective date.
Therefore for good and valuable consideration the Nisg̱a'a Nation and Hydro agree as follows:
1. Definitions
"BC TEL" means BC TEL, and its successors and assigns.
"Final Agreement" means the Nisg̱a'a Final Agreement between the Nisg̱a'a Nation, Canada and British Columbia.
"Hydro Purposes" means the transmission and distribution of electric energy and telecommunications.
"Hydro Works" means poles, towers, antennae (except for monopole free standing antennae), anchors, guy wires, brackets, cross arms, insulators, transformers, overhead and underground conductors, wires, lines and cables, underground conduits and pipes, access nodes, all ancillary appliances and fittings, reasonably required associated protective installations and related works such as fencing for safety or security, devices and identifying colours for aircraft warning, and utility services for the operation of any of the foregoing.
"Hydro Right of Way Area" means those portions of Nisg̱a'a Lands as described in Schedule A attached to this Agreement.
"Licensed Hydro Works" means, collectively, any Hydro Works, and any access roads within the Vegetation Management Area, that, on the effective date, are located on Nisg̱a'a Lands outside of:
(a) a Crown road right of way area;
(b) a Hydro Right of Way Area;
(c) a right of way area granted to BC TEL on which Hydro is BC TEL's licensee; or
(d) an area in respect of which, on the effective date, the Nisg̱a'a Nation grants Hydro rights under a separate instrument.
"Vegetation Management Area" means the Hydro Right of Way Area together with the area 10 metres on both sides of the Hydro Right of Way Area.
2. Relationship to Final Agreement
This Agreement is made under the Final Agreement, and defined terms in the Final Agreement will have the same meaning in this Agreement.
3. Rights on Hydro Right of Way Area
The Nisg̱a'a Nation grants to Hydro, and its employees, representatives, agents, contractors, licensees and assignees, the full, free and uninterrupted right, liberty and right of way, for Hydro Purposes, as follows:
(a) to construct, excavate for, erect, string, or otherwise install, operate, maintain, repair, alter, upgrade, remove and replace Hydro Works over, upon and under the Hydro Right of Way Area;
(b) to trim or remove all or any trees, growth or vegetation now or hereafter on the Vegetation Management Area that may in the reasonable opinion of Hydro create a hazard or interfere with the Hydro Works or the carrying out of any of the Hydro Purposes, except that Hydro shall take all reasonable steps, including where appropriate planting of suitable replacement vegetation, to avoid erosion or other damage;
(c) to conduct vegetation management upon the Vegetation Management Area, such as the planting of vegetation compatible with use for Hydro Purposes, and the application of herbicides and pesticides provided that:
(i) Hydro will not conduct any aerial application of herbicides or pesticides on the Hydro Right of Way Area or other Nisg̱a'a Lands; and
(ii) Hydro will obtain all permits and approvals as required by authorities having jurisdiction, including any such permits or approvals required by the Nisg̱a'a Nation, for the use of any herbicides or pesticides;
(d) to clear the Hydro Right of Way Area and keep it cleared of all or any part of any obstructions that may in the reasonable opinion of Hydro create a hazard or interfere with the Hydro Works or the carrying out of any of the Hydro Purposes;
(e) to install, maintain and use gates in all fences constructed by others which are now or hereafter shall be on the Hydro Right of Way Area and in fences across roads in the Vegetation Management Area;
(f) to ground any structures, installation or things, by whomsoever owned, from time to time situated anywhere on the Hydro Right of Way Area or adjacent Nisg̱a'a Lands where, in the reasonable opinion of Hydro, such grounding will eliminate or reduce hazard to persons;
(g) to pass and repass over the Hydro Right of Way Area with or without equipment, machinery and materials as reasonably required by Hydro, and to construct, maintain, repair, replace and use trails, roads and bridges on the Hydro Right of Way Area as reasonably required to obtain access to the Hydro Works; and
(h) to generally do all acts or things necessary in connection with the foregoing.
4. Non Exclusive Use
This Agreement will not entitle Hydro to exclusive possession of the Hydro Right of Way Area or other parts of the Nisg̱a'a Lands and the Nisg̱a'a Nation reserves the right to grant other dispositions of the Vegetation Management Area, including the Hydro Right of Way Area, so long as the grant does not materially affect the exercise of Hydro's rights under this Agreement.
5. BC TEL
Hydro will cooperate and enter into agreements with BC TEL in the same manner as Hydro and BC TEL cooperate and enter into agreements elsewhere in British Columbia, to share the use of poles, ducts and other works.
6. Licence For Hydro Works Located Outside Rights of Way
The Nisg̱a'a Nation grants to Hydro, and its employees, representatives, agents, contractors, licensees and assignees, as of the effective date, a licence for all Licensed Hydro Works to use and occupy Nisg̱a'a Lands on the following terms:
(a) the licence is irrevocable so long as Hydro requires the use of the Licensed Hydro Works for Hydro Purposes, unless the Licensed Hydro Works are included within a Crown road right of way area or Hydro Right of Way Area under this paragraph;
(b) for the Licensed Hydro Works, Hydro holds the same rights, privileges and obligations, including all indemnity obligations, as apply to Hydro for the use of the Hydro Right of Way Area under this Agreement, and including the right of reasonable access onto the Nisg̱a'a Lands for the purpose of gaining access to the Licensed Hydro Works;
(c) if at any time in the course of maintenance or operations Hydro replaces or makes significant repairs to Licensed Hydro Works which are adjacent to a Crown road right of way area or a Hydro Right of Way Area then, upon written notice from the Nisg̱a'a Nation and provided the relocation does not result in significant increased costs, and for a Crown road right of way area if the relocation is acceptable to British Columbia, Hydro will relocate the Licensed Hydro Works on to the adjacent right of way area, and the licence for those Licensed Hydro Works will be terminated;
(d) the Nisg̱a'a Nation may at any time at no cost to Hydro require Hydro to enter into an agreement to extend the Hydro Right of Way Area so as to incorporate within the Hydro Right of Way Area any Licensed Hydro Works designated by the Nisg̱a'a Nation and upon the appropriate extension of the Hydro Right of Way Area the licence for those Licensed Hydro Works will be terminated;
(e) the Nisg̱a'a Nation may at any time require Hydro to relocate Licensed Hydro Works designated by the Nisg̱a'a Nation to another location on Nisg̱a'a Lands, including on to an adjacent Crown road right of way area if acceptable to British Columbia, or to a Hydro Right of Way Area and in that event:
(i) if the new location is reasonably suitable for use for Hydro Works considering construction, maintenance and operation and costs, Hydro will proceed with the relocation;
(ii) the Nisg̱a'a Nation will give reasonable notice to permit design, planning and construction of the Hydro Works to be relocated;
(iii) the Nisg̱a'a Nation will pay all reasonable costs, including costs of design, supervision and construction; and
(iv) upon relocation, this licence is extended to the relocated Hydro Works, except if the relocated Hydro Works are located on a Crown road right of way area or a Hydro Right of Way Area, then the license for those Hydro Works will be terminated.
7. Duration
The rights, liberties and rights of way granted under this Agreement are for so long as required and will terminate, without compensation to Hydro, when Hydro no longer requires the Hydro Right of Way Area, and:
(a) Hydro gives 90 days written notice to the Nisg̱a'a Nation; or
(b) the Nisg̱a'a Nation gives 90 days written notice to Hydro.
8. Work Plans For Hydro Works
Except in an emergency, Hydro will provide to the Nisg̱a'a Nation a written work plan describing proposed work on or related to a Hydro Right of Way Area prior to undertaking any of the following work:
(a) installation of any new transmission or distribution lines;
(b) relocation of any transmission or distribution lines;
(c) trimming or removal of any trees, growth or vegetation on or adjacent to a Hydro Right of Way Area, including the Vegetation Management Area;
(d) constructing any new trails, roads or bridges on the Hydro Right of Way Area.
Hydro will provide the work plan in time to afford the Nisg̱a'a Nation the opportunity to comment, and Hydro will use reasonable efforts to accommodate any suggestions or requests presented by the Nisg̱a'a Nation provided they do not result in significant increased costs.
9. Insurance and Security
If British Columbia requires Hydro to carry insurance, to provide security, or both, in relation to rights of way granted to Hydro by British Columbia, then on request of the Nisg̱a'a Nation, Hydro will obtain insurance, security, or both, for the benefit of the Nisg̱a'a Nation on terms substantially the same as required by British Columbia.
10. Access to Hydro Rights of Way
If for any reason Hydro is unable to obtain reasonable access to any Hydro Works from the Hydro Right of Way Area, a Crown road, a Nisg̱a'a road or a Hydro private access right of way, then the Nisg̱a'a Nation will, where land access is reasonably practicable, on application from Hydro, grant Hydro the right to cross Nisg̱a'a Lands to provide Hydro access on terms substantially the same as contained in Document 3 of Appendix C4 to the Final Agreement.
11. Hazardous Trees Adjacent to Hydro Right of Way
Hydro may remove any tree located on Nisg̱a'a Lands which by falling or otherwise may endanger any Hydro Works, but, except in an emergency, will give the Nisg̱a'a Nation prior written notice.
12. Protection of the Environment
Hydro will undertake activities permitted under this Agreement having regard for the impact on the environment, and will take prudent measures to minimize damage or disruption to the environment.
13. Replacement Right of Way
If a material change occurs to lands which for any reason makes the continued use of any portion of the Hydro Right of Way Area unsuitable for the Hydro Purposes, then the Nisg̱a'a Nation will, without charge, grant a replacement right of way to Hydro for construction of the replacement Hydro Works, as follows:
(a) Hydro will, before undertaking any work, deliver a work plan to the Nisg̱a'a Nation indicating the location of the contemplated replacement right of way area, for approval by the Nisg̱a'a Nation which approval will not be unreasonably withheld;
(b) Hydro will take into account the effect of the replacement right of way area on adjacent Nisg̱a'a Lands, and any unique aspects of these lands, and the Nisg̱a'a Nation will take into account the cost efficiencies of the location selected by Hydro for a replacement right of way area in relation to alternative locations;
(c) the replacement right of way agreement will be on the same terms and conditions as this Agreement, and the Nisg̱a'a Nation will use its best efforts to ensure that the replacement right of way has the same priority over other charges and encumbrances as this Agreement;
(d) Hydro will execute a release of this Agreement in relation to the portions of the abandoned Hydro Right of Way Area.
Despite any provision of this paragraph, in an emergency Hydro may, without approval from the Nisg̱a'a Nation, enter on to Nisg̱a'a Lands to undertake all work and take all steps as are reasonably required to be taken immediately in order to restore electrical and telecommunication services, or to ensure safety of persons and property that may be at risk from Hydro Works. Hydro will give notice as soon as reasonably possible to the Nisg̱a'a Nation of any emergency entry.
14. Entry on Nisg̱a'a Lands outside the Hydro Right of Way Area
Hydro, and its employees, representatives, agents, contractors, licensees and assignees, may enter onto Nisg̱a'a Lands outside the Hydro Right of Way Area for the purpose of undertaking works to protect Hydro Works, or to protect persons and property that may be at risk from Hydro Works, as follows:
(a) Hydro will before commencing any work deliver a written work plan describing the effect and extent of the proposed work on Nisg̱a'a Lands to the Nisg̱a'a Nation for approval;
(b) the Nisg̱a'a Nation will not unreasonably withhold approval of the work plan, considering the effect of the proposed work, including the cost of the proposed works compared to the cost of alternate solutions, the extent of the risk of not undertaking the work, and the impact on the Nisg̱a'a Lands. If Hydro and the Nisg̱a'a Nation cannot agree on a work plan requested by Hydro within 30 days of receipt by the Nisg̱a'a Nation of the proposed work plan then either party may refer the disagreement to dispute resolution under Paragraph 21 of this Agreement;
(c) Hydro will minimize damage to and time spent on Nisg̱a'a Lands;
(d) Hydro will pay fair compensation, as defined in the Final Agreement, for any interference with or damage to adjacent Nisg̱a'a Lands.
Notwithstanding other provisions of this paragraph or this Agreement, in an emergency Hydro may undertake works and take steps on Nisg̱a'a Lands as are reasonably required to be taken immediately in order to protect Hydro Works, or to protect persons and property that may be at risk from Hydro Works, and in that event Hydro will as soon as reasonably possible notify the Nisg̱a'a Nation in writing.
15. Entry on Nisg̱a'a Lands outside the Crown roads right of way area
The parties' rights and obligations as set out in paragraph 14 apply with respect to Hydro Works located on a Crown roads right of way area.
16. Relocation of Hydro Works
If the Nisg̱a'a Nation requires a portion of a Hydro Right of Way Area for other purposes, then upon request by the Nisg̱a'a Nation Hydro will relocate any Hydro Right of Way Area including the related Hydro Works, to a new location as follows:
(a) the relocation will proceed only if the new location is reasonably suitable for use for Hydro Works considering construction, maintenance and operation and costs; and
(b) the Nisg̱a'a Nation will give reasonable notice to permit design, planning and construction of the Hydro Works to be relocated; and
(c) the Nisg̱a'a Nation will pay all reasonable costs, including costs of design, supervision and construction.
The Nisg̱a'a Nation will extend the Hydro Right of Way Area as reasonably required, so that the extended Hydro Right of Way Area has similar priority over other charges and encumbrances as the original. When a portion of a Hydro Right of Way Area is relocated then the Hydro Right of Way Area for the portion that is abandoned will be terminated.
17. Indemnity
Hydro will indemnify and save harmless the Nisg̱a'a Nation from and against all losses, damages, costs, liabilities, claims, expenses, and suits, including fees of solicitors and other professional advisors, arising out of:
(a) any breach, violation or non-performance by Hydro of any of Hydro's covenants, conditions or obligations under this Agreement; and
(b) any personal injury, death, or property damage, including environmental damage, occurring on or to Nisg̱a'a Lands arising from Hydro's use or occupation of Nisg̱a'a Lands under this Agreement,
but not for any claims based on nuisance or the rule in Rylands v Fletcher unless Hydro was negligent.
18. Covenants of Hydro
Hydro covenants with the Nisg̱a'a Nation:
(a) to pay compensation to the Nisg̱a'a Nation for any damage to buildings, crops (except for trees in the Vegetation Management Area), livestock, drains, ditches, culverts, fences, trails, bridges, roads and fruit, nut or ornamental trees caused by Hydro;
(b) despite subparagraph (a), to pay compensation to its owner, in accordance with generally accepted principles of timber valuation, for all merchantable timber cut or damaged by Hydro on Nisg̱a'a Lands on or adjacent to the Hydro Right of Way Area, and the parties agree that on payment, title to any timber cut on the Nisg̱a'a Lands under this Agreement vests in Hydro;
(c) to pay and discharge when due all applicable taxes, levies, charges and assessments now or hereafter assessed, levied or charged to the account of Hydro which relate to the Hydro Right of Way Area and which Hydro is liable to pay;
(d) to keep the Hydro Right of Way Area, and any Hydro Works, in a safe, clean and sanitary condition to the extent the condition relates to Hydro's use or occupation of the Hydro Right of Way Area, and on written notice from the Nisg̱a'a Nation, to make safe, clean and sanitary any portion of the Hydro Right of Way Area, or the Hydro Works that contravene the provisions of this covenant, provided that Hydro has no obligation to keep the Hydro Right of Way roads or access roads, suitable for use by anyone except Hydro;
(e) not to disturb or interfere with any survey monuments, bars or iron pins located on the Nisg̱a'a Lands including the Hydro Right of Way Area;
(f) not to bury debris or rubbish of any kind on Nisg̱a'a Lands in excavations or backfill, and to remove shoring and similar temporary structures as backfilling proceeds;
(g) to bury and maintain all underground works as may be required so as not to unduly interfere with the drainage of the Nisg̱a'a Lands;
(h) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Hydro Right of Way Area, or anything that may be or become a nuisance or annoyance to the owners of the Nisg̱a'a Lands, except to the extent necessary to carry out any of the Hydro Purposes;
(i) to observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any competent governmental authority which relate to the Hydro Right of Way Area;
(j) to permit the Nisg̱a'a Nation to enter upon the Hydro Right of Way Area at any time to examine its condition;
(k) if for any reason this Agreement terminates with respect to a portion of the Hydro Right of Way Area, to:
(i) quit peaceably that portion of the Hydro Right of Way Area;
(ii) decommission any Hydro roads and restore the surface of that portion of the Hydro Right of Way Area to a condition to which similar lands are typically restored in the Province of British Columbia, unless otherwise agreed to in writing by the Nisg̱a'a Nation and Hydro at the time of restoration;
(iii) remove all above ground Hydro Works from that portion of the Hydro Right of Way Area within a reasonable period of time and in any event within 2 years, and any Hydro Works remaining on that portion of the Hydro Right of Way Area will be absolutely forfeited to and become the property of the Nisg̱a'a Nation. If the Nisg̱a'a Nation removes any remaining above ground Hydro Works within 4 years, Hydro will, on demand by the Nisg̱a'a Nation, reimburse the Nisg̱a'a Nation for all reasonable costs of removal; and
(iv) remain liable for any environmental damage to the Nisg̱a'a Lands arising from any below ground Hydro Works that remain on or in that portion of the Hydro Right of Way Area after termination, except that if the Nisg̱a'a Nation uses or authorizes the use of the remaining below ground Hydro Works for any purpose then Hydro will not be liable for any environmental damage caused by the Nisg̱a'a Nation use, or authorized use; and to the extent necessary, this covenant will survive the termination of this Agreement; and
(l) if Hydro, or its employees, representatives, agents, contractors, licensees or assignees, discover any archaeological material on the Hydro Right of Way Area, to take all reasonable steps and precautions to minimize disturbance of that material, and to immediately notify the Nisg̱a'a Nation.
19. Covenants of the Nisg̱a'a Nation
The Nisg̱a'a Nation covenants with Hydro:
(a) not to use or authorize the use of the portions of the Hydro Right of Way Area designated by Hydro, acting reasonably, as "non-parking areas" for the regular or organized parking of vehicles, provided that nothing in this paragraph is intended to prevent safe temporary parking of vehicles;
(b) not to park or authorize to be parked on the Hydro Right of Way Area any vehicle or equipment exceeding 25 feet in length under any conductor of 500 kV or higher voltage, unless such vehicle is properly grounded;
(c) not to use or authorize the use of the Hydro Right of Way Area for fuelling any vehicle or equipment;
(d) not to use or authorize the use of the Hydro Right of Way Area for any purpose, including the construction of any improvements, that in the reasonable opinion of Hydro would be unsafe or would interfere with Hydro's use of the Hydro Right of Way Area;
(e) not to carry out blasting or aerial logging operations on or immediately adjacent to the Hydro Right of Way Area without the prior written permission from Hydro, which permission will not be unreasonably withheld or delayed; and
(f) not to intentionally do or authorize any act or thing that injures or endangers the Hydro Works.
20. Licence
Hydro will not licence the use of the Hydro Right of Way Area, in whole or in part, without the prior written consent of the Nisg̱a'a Nation provided that:
(a) Hydro may grant a licence to BC Tel for the use of the Hydro Right of Way Area without the consent of the Nisg̱a'a Nation;
(b) the Nisg̱a'a Nation may attach conditions to its consent to any licence, including the provision of insurance and security, in a form and amount acceptable to the Nisg̱a'a Nation; and
(c) no licence will act as a release of any of Hydro's obligations as set out in this Agreement.
21. Disputes
Any dispute arising out of or in connection with this Agreement will be resolved as follows:
(a) the parties will attempt to resolve disputes by good faith negotiations, including timely disclosure of all relevant facts, information and documents;
(b) either party may, at any time, by written notice request that the dispute be referred to mediation, conducted by a mediator, knowledgeable about the matters in dispute;
(c) if the dispute is not resolved within 30 days of the notice to mediate under subparagraph (b) then, on the agreement of both parties, the dispute may be referred to a single arbitrator for final resolution. If the parties do not agree to arbitration then either party may refer the matter to a court of competent jurisdiction;
except that it is not incompatible with this paragraph for a party to apply to a court of competent jurisdiction at any time for interim or conservatory relief and for the court to grant that relief.
22. Notice
If notice is required or permitted under this Agreement, the notice:
(a) must be in writing;
(b) must be delivered to the address set out above, or other address as specified in writing by a party;
(c) may be given in one or more of the following ways:
(i) delivered personally or by courier, and it will be deemed received on the next business day;
(ii) delivered by fax, and it will be deemed received on the next business day; or
(iii) mailed by pre-paid post in Canada, and it will be deemed received on the eighth business day following.
23. Runs With the Land
This Agreement runs with and binds Nisg̱a'a Lands, to the extent reasonably necessary to give full force and effect to this Agreement.
24. Waiver and Consent
A breach of any term, condition, covenant or other provision of this Agreement may only be waived in writing, and any waiver will not be construed as a waiver of any subsequent breach. Consent to or approval of any act, where consent or approval is required under this Agreement, will not be construed as consent to or approval of any subsequent act.
25. Remedies
No remedy set out in this Agreement is exclusive of any other remedy provided by law, but will be in addition to any other remedy existing at law, in equity, or by statute.
26. Successors and Assigns
The terms and provisions of this Agreement will extend to, be binding upon and enure to the benefit of the parties and their successors and assigns.
27. Interpretation
In this Agreement:
(a) all attached schedules form an integral part of this Agreement;
(b) unless the context otherwise requires, the singular includes the plural and the masculine include the feminine gender, body politic and a corporation;
(c) the headings are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of this Agreement;
(d) a reference to an enactment of British Columbia or of Canada will be deemed to include a reference to any subsequent amendments or replacements; and
(e) if any provision is determined by a court or arbitrator of competent jurisdiction to be illegal or unenforceable, that provision will be considered separate and severable, and the legality or enforceability of the remaining provisions will not be affected by that determination.
IN WITNESS THEREOF the parties have duly executed this Agreement, as of the date first referred to above.
NISG̱A'A NATION
Per:______________________________
Per:______________________________
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY
Per:______________________________
Per:______________________________
SCHEDULE A – DESCRIPTION OF HYDRO RIGHT OF WAY AREA
Grant of Right of Way and Licence for
Telecommunications to
BC TEL
This Agreement is dated ______________________________ , ____________________
BETWEEN:
NISG̱A'A NATION
[insert address]
(the "Nisg̱a'a Nation")
AND:
BC TEL, a corporation under the laws of Canada
[insert address]
("BC TEL")
WHEREAS:
A. The Nisg̱a'a Nation, Canada and British Columbia have entered into the Nisg̱a'a Final Agreement.
B. The Nisg̱a'a Nation wishes to grant to BC TEL rights on Nisg̱a'a Lands for BC TEL Works existing on Nisg̱a'a Lands on the effective date.
Therefore for good and valuable consideration the Nisg̱a'a Nation and BC TEL agree as follows:
1. Definitions
"Final Agreement" means the Nisg̱a'a Final Agreement between the Nisg̱a'a Nation, Canada and British Columbia.
"BC TEL Purposes" means telecommunications.
"BC TEL Works" means poles, towers, antennae (except for monopole free standing antennae), anchors, guy wires, brackets, cross arms, insulators, transformers, overhead and underground conductors, wires, lines and cables, underground conduits and pipes, access nodes, all ancillary appliances and fittings, reasonably required associated protective installations and related works such as fencing for safety or security, devices and identifying colours for aircraft warning, and utility services for the operation of any of the foregoing.
"BC TEL Right of Way Area" means those portions of Nisg̱a'a Lands as described in Schedule A attached to this Agreement.
"Hydro" means British Columbia Hydro And Power Authority, and its successors and assigns.
"Licensed BC TEL Works" means, collectively, any BC TEL Works, and any access roads within the BC TEL Right of Way Area, that, on the effective date, are located on Nisg̱a'a Lands outside of:
(a) a Crown road right of way area;
(b) a BC TEL Right of Way Area,; or
(c) a right of way area granted to Hydro on which BC TEL is Hydro's licensee;
(d) an area in respect of which, on the effective date, the Nisg̱a'a Nation grants BCTEL rights under a separate instrument.
2. Relationship to Final Agreement
This Agreement is made under the Final Agreement, and defined terms in the Final Agreement will have the same meaning in this Agreement.
3. Rights on BC TEL Right of Way Area
The Nisg̱a'a Nation grants to BC TEL, and its employees, representatives, agents, contractors, licensees and assignees, the full, free and uninterrupted right, liberty and right of way, for BC TEL Purposes, as follows:
(a) to construct, excavate for, erect, string, or otherwise install, operate, maintain, repair, alter, upgrade, remove and replace BC TEL Works over, upon and under the BC TEL Right of Way Area;
(b) to trim or remove all or any trees, growth or vegetation now or hereafter on the BC TEL Right of Way Area that may in the reasonable opinion of BC TEL create a hazard or interfere with the BC TEL Works or the carrying out of any of the BC TEL Purposes, except that BC TEL shall take all reasonable steps, including where appropriate planting of suitable replacement vegetation, to avoid erosion or other damage;
(c) to conduct vegetation management upon the BC TEL Right of Way Area, such as the planting of vegetation compatible with use for BC TEL Purposes, and the application of herbicides and pesticides provided that:
(i) BC TEL will not conduct any aerial application of herbicides or pesticides on the BC TEL Right of Way Area or other Nisg̱a'a Lands; and
(ii) BC TEL will obtain all permits and approvals as required by authorities having jurisdiction, including any such permits or approvals required by the Nisg̱a'a Nation, for the use of any herbicides or pesticides;
(d) to clear the BC TEL Right of Way Area and keep it cleared of all or any part of any obstructions that may in the reasonable opinion of BC TEL create a hazard or interfere with the BC TEL Works or the carrying out of any of the BC TEL Purposes;
(e) to install, maintain and use gates in all fences constructed by others which are now or hereafter shall be on the BC TEL Right of Way Area;
(f) to pass and repass over the BC TEL Right of Way Area with or without equipment, machinery and materials as reasonably required by BC TEL, and to construct, maintain, repair, replace and use trails, roads and bridges on the BC TEL Right of Way Area as reasonably required to obtain access to the BC TEL Works; and to generally do all acts or things necessary in connection with the foregoing.
4. Non Exclusive Use
This Agreement will not entitle BC TEL to exclusive possession of the BC TEL Right of Way Area or other parts of the Nisg̱a'a Lands and the Nisg̱a'a Nation reserves the right to grant other dispositions of the BC TEL Right of Way Area so long as the grant does not materially affect the exercise of BC TEL's rights under this Agreement.
5. Hydro
BC TEL will cooperate and enter into agreements with Hydro in the same manner as Hydro and BC TEL cooperate and enter into agreements elsewhere in British Columbia, to share the use of poles, ducts and other works.
6. Licence For BC TEL Works Located Outside Rights of Way
The Nisg̱a'a Nation grants to BC TEL, and its employees, representatives, agents, contractors, licensees and assignees, as of the effective date, a licence for all Licensed BC TEL Works to use and occupy Nisg̱a'a Lands on the following terms:
(a) the licence is irrevocable so long as BC TEL requires the use of the Licensed BC TEL Works for BC TEL Purposes, unless the Licensed BC TEL Works are included within a Crown road right of way area or BC TEL Right of Way Area under this paragraph;
(b) for the Licensed BC TEL Works, BC TEL holds the same rights, privileges and obligations, including all indemnity obligations, as apply to BC TEL for the use of the BC TEL Right of Way Area under this Agreement, and including the right of reasonable access onto the Nisg̱a'a Lands for the purpose of gaining access to the Licensed BC TEL Works;
(c) if at any time in the course of maintenance or operations BC TEL replaces or makes significant repairs to Licensed BC TEL Works which are adjacent to a Crown road right of way area or a BC TEL Right of Way Area then, upon written notice from the Nisg̱a'a Nation and provided the relocation does not result in significant increased costs, and for a Crown road right of way area if the relocation is acceptable to British Columbia, BC TEL will relocate the Licensed BC TEL Works on to the adjacent right of way area, and the licence for those Licensed BC TEL Works will be terminated;
(d) the Nisg̱a'a Nation may at any time at no cost to BC TEL require BC TEL to enter into an agreement to extend the BC TEL Right of Way Area so as to incorporate within the BC TEL Right of Way Area any Licensed BC TEL Works designated by the Nisg̱a'a Nation and upon the appropriate extension of the BC TEL Right of Way Area the licence for those Licensed BC TEL Works will be terminated;
(e) the Nisg̱a'a Nation may at any time require BC TEL to relocate Licensed BC TEL Works designated by the Nisg̱a'a Nation to another location on Nisg̱a'a Lands including on to an adjacent Crown road right of way area if acceptable to British Columbia, or to a BC TEL Right of Way Area and in that event:
(i) if the new location is reasonably suitable for use for BC TEL Works considering construction, maintenance and operation and costs BC TEL will proceed with the relocation;
(ii) the Nisg̱a'a Nation will give reasonable notice to permit design, planning and construction of the BC TEL Works to be relocated;
(iii) the Nisg̱a'a Nation will pay all reasonable costs, including costs of design, supervision and construction; and
(iv) upon relocation, this licence is extended to the relocated BC TEL Works, except if the relocated BC TEL Works are located on a Crown road right of way area or a BC TEL Right of Way Area, then the license for those BC TEL Works will be terminated.
7. Duration
The rights, liberties and rights of way granted under this Agreement are for so long as required and will terminate, without compensation to BC TEL, when BC TEL no longer requires the BC TEL Right of Way Area, and:
(a) BC TEL gives 90 days written notice to the Nisg̱a'a Nation; or
(b) the Nisg̱a'a Nation gives 90 days written notice to BC TEL.
8. Work Plans For BC TEL Works
Except in an emergency BC TEL will provide to the Nisg̱a'a Nation a written work plan describing proposed work on or related to a BC TEL Right of Way Area prior to undertaking any of the following work:
(a) installation of any new telecommunication lines;
(b) relocation of any telecommunication lines;
(c) trimming or removal of any trees, growth or vegetation on or adjacent to a BC TEL Right of Way Area;
(d) constructing any new trails, roads or bridges on the BC TEL Right of Way Area.
BC TEL will provide the work plan in time to afford the Nisg̱a'a Nation the opportunity to comment, and BC TEL will use reasonable efforts to accommodate any suggestions or requests presented by the Nisg̱a'a Nation provided they do not result in significant increased costs.
9. Insurance and Security
If British Columbia requires BC TEL to carry insurance, to provide security, or both, in relation to rights of way granted to BC TEL by British Columbia, then on request of the Nisg̱a'a Nation, BC TEL will obtain insurance, security, or both, for the benefit of the Nisg̱a'a Nation on terms substantially the same as required by British Columbia.
10. Access to BC TEL Rights of Way
If for any reason BC TEL is unable to obtain reasonable access to any BC TEL Works from the BC TEL Right of Way Area, a Crown road, a Nisg̱a'a road or a BC TEL private access right of way, then the Nisg̱a'a Nation will, where land access is reasonably practicable, on application from BC TEL, grant BC TEL the right to cross Nisg̱a'a Lands to provide BC TEL access on terms substantially the same as contained in Document 3 of Appendix C-4 to the Final Agreement.
11. Protection of the Environment
BC TEL will undertake activities permitted under this Agreement having regard for the impact on the environment, and will take prudent measures to minimize damage or disruption to the environment.
12. Replacement Right of Way
If a material change occurs to lands which for any reason makes the continued use of any portion of the BC TEL Right of Way Area unsuitable for the BC TEL Purposes, then the Nisg̱a'a Nation will, without charge, grant a replacement right of way to BC TEL for construction of the replacement BC TEL Works, as follows:
(a) BC TEL will, before undertaking any work, deliver a work plan to the Nisg̱a'a Nation indicating the location of the contemplated replacement right of way area, for approval by the Nisg̱a'a Nation which approval will not be unreasonably withheld;
(b) BC TEL will take into account the effect of the replacement right of way area on adjacent Nisg̱a'a Lands, and any unique aspects of these lands, and the Nisg̱a'a Nation will take into account the cost efficiencies of the location selected by BC TEL for a replacement right of way area in relation to alternative locations;
(c) the replacement right of way agreement will be on the same terms and conditions as this Agreement, and the Nisg̱a'a Nation will use its best efforts to ensure that the replacement right of way has the same priority over other charges and encumbrances as this Agreement;
(d) BC TEL will execute a release of this Agreement in relation to the portions of the abandoned BC TEL Right of Way Area.
Despite any provision of this paragraph, in an emergency BC TEL may, without approval from the Nisg̱a'a Nation, enter on to Nisg̱a'a Lands to undertake all work and take all steps as are reasonably required to be taken immediately in order to restore electrical and telecommunication services, or to ensure safety of persons and property that may be at risk from BC TEL Works. BC TEL will give notice as soon as reasonably possible to the Nisg̱a'a Nation of any emergency entry.
13. Entry on Nisg̱a'a Lands outside the BC TEL Right of Way Area
BC TEL, and its employees, representatives, agents, contractors, licensees and assignees, may enter onto Nisg̱a'a Lands outside the BC TEL Right of Way Area for the purpose of undertaking works to protect BC TEL Works, or to protect persons and property that may be at risk from BC TEL Works, as follows:
(a) BC TEL will before commencing any work deliver a written work plan describing the effect and extent of the proposed work on Nisg̱a'a Lands to the Nisg̱a'a Nation for approval;
(b) the Nisg̱a'a Nation will not unreasonably withhold approval of the work plan, considering the effect of the proposed work, including the cost of the proposed works compared to the cost of alternate solutions, the extent of the risk of not undertaking the work, and the impact on the Nisg̱a'a Lands. If BC TEL and the Nisg̱a'a Nation cannot agree on a work plan requested by BC TEL within 30 days of receipt by the Nisg̱a'a Nation of the proposed work plan then either party may refer the disagreement to dispute resolution under Paragraph 21 of this Agreement;
(c) BC TEL will minimize the damage to and time spent on Nisg̱a'a Lands;
(d) BC TEL will pay fair compensation, as defined in the Final Agreement, for any interference with or damage to adjacent Nisg̱a'a Lands.
Notwithstanding other provisions of this paragraph or this Agreement, in an emergency BC TEL may undertake works and take steps on Nisg̱a'a Lands as are reasonably required to be taken immediately in order to protect BC TEL Works, or to protect persons and property that may be at risk from BC TEL Works, and in that event BC TEL will as soon as reasonably possible notify the Nisg̱a'a Nation in writing.
14. Entry on Nisg̱a'a Lands outside the Crown roads right of way area
The parties' rights and obligations as set out in paragraph 13 apply with respect to BC TEL Works located on a Crown road right of way area.
15. Relocation of BC TEL Works
If the Nisg̱a'a Nation requires a portion of a BC TEL Right of Way Area for other purposes, then upon request by the Nisg̱a'a Nation, BC TEL will relocate any BC TEL Right of Way Area including the related BC TEL Works, to a new location as follows:
(a) the relocation will proceed only if the new location is reasonably suitable for use for BC TEL Works considering construction, maintenance and operation and costs; and
(b) the Nisg̱a'a Nation will give reasonable notice to permit design, planning and construction of the BC TEL Works to be relocated; and
(c) the Nisg̱a'a Nation will pay all reasonable costs, including costs of design, supervision and construction.
The Nisg̱a'a Nation will extend the BC TEL Right of Way Area as reasonably required, so that the extended BC TEL Right of Way Area has similar priority over other charges and encumbrances as the original. When a portion of a BC TEL Right of Way Area is relocated then the BC TEL Right of Way Area for the portion that is abandoned will be terminated.
16. Indemnity
BC TEL will indemnify and save harmless the Nisg̱a'a Nation from and against all losses, damages, costs, liabilities, claims, expenses, and suits, including fees of solicitors and other professional advisors, arising out of:
(a) any breach, violation or non-performance by BC TEL of any of BC TEL's covenants, conditions or obligations under this Agreement; and
(b) any personal injury, death, or property damage, including environmental damage, occurring on or to Nisg̱a'a Lands arising from BC TEL's use or occupation of Nisg̱a'a Lands under this Agreement.
17. Covenants of BC TEL
BC TEL covenants with the Nisg̱a'a Nation:
(a) to pay compensation to the Nisg̱a'a Nation for any damage to buildings, crops (except for trees in the BC TEL Right of Way Area), livestock, drains, ditches, culverts, fences, trails, bridges, roads and fruit, nut or ornamental trees caused by BC TEL;
(b) despite subparagraph (a), to pay compensation to its owner, in accordance with generally accepted principles of timber valuation, for all merchantable timber cut or damaged by BC TEL on Nisg̱a'a Lands on or adjacent to the BC TEL Right of Way Area, and the parties agree that, on payment, title to any timber cut on the Nisg̱a'a Lands under this Agreement vests in BC TEL;
(c) to pay and discharge when due all applicable taxes, levies, charges and assessments now or hereafter assessed, levied or charged to the account of BC TEL which relate to the BC TEL Right of Way Area and which BC TEL is liable to pay;
(d) to keep the BC TEL Right of Way Area, and any BC TEL Works, in a safe, clean and sanitary condition to the extent the condition relates to BC TEL's use or occupation of the BC TEL Right of Way Area, and on written notice from the Nisg̱a'a Nation, to make safe, clean and sanitary any portion of the BC TEL Right of Way Area, or the BC TEL Works that contravene the provisions of this covenant;
(e) not to disturb or interfere with any survey monuments, bars or iron pins located on the Nisg̱a'a Lands including the BC TEL Right of Way Area;
(f) not to bury debris or rubbish of any kind on Nisg̱a'a Lands in excavations or backfill, and to remove shoring and similar temporary structures as backfilling proceeds;
(g) to bury and maintain all underground works as may be required so as not to unduly interfere with the drainage of the Nisg̱a'a Lands;
(h) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the BC TEL Right of Way Area, or anything that may be or become a nuisance or annoyance to the owners of the Nisg̱a'a Lands, except to the extent necessary to carry out any of the BC TEL Purposes;
(i) to observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any competent governmental authority which relate to the BC TEL Right of Way Area;
(j) to permit the Nisg̱a'a Nation to enter upon the BC TEL Right of Way Area at any time to examine its condition;
(k) if for any reason this Agreement terminates with respect to a portion of the BC TEL Right of Way Area, to:
(i) quit peaceably that portion of the BC TEL Right of Way Area;
(ii) decommission any BC TEL roads and restore the surface of that portion of the BC TEL Right of Way Area to a condition to which similar lands are typically restored in the Province of British Columbia, unless otherwise agreed to in writing by the Nisg̱a'a Nation and BC TEL at the time of restoration;
(iii) remove all above ground BC TEL Works from that portion of the BC TEL Right of Way Area within a reasonable period of time and in any event within 2 years, and any BC TEL Works remaining on that portion of the BC TEL Right of Way Area will be absolutely forfeited to and become the property of the Nisg̱a'a Nation. If the Nisga'a Nation removes any remaining above ground BC TEL Works within 4 years, BC TEL will, on demand by the Nisg̱a'a Nation, reimburse the Nisg̱a'a Nation for all reasonable costs of removal; and
(iv) remain liable for any environmental damage to the Nisg̱a'a Lands arising from any below ground BC TEL Works that remain on or in that portion of the BC TEL Right of Way Area after termination, except that if the Nisg̱a'a Nation uses or authorizes the use of the remaining below ground BC TEL Works for any purpose than BC TEL will not be liable for any environmental damage caused by the Nisg̱a'a Nation use, or authorized use;
and to the extent necessary, this covenant will survive the termination of this Agreement; and
(l) if BC TEL, or its employees, representatives, agents, contractors, licensees or assignees, discover any archaeological material on the BC TEL Right of Way Area, to take all reasonable steps and precautions to minimize disturbance of that material, and to immediately notify the Nisg̱a'a Nation.
18. Covenants of the Nisg̱a'a Nation
The Nisg̱a'a Nation covenants with BC TEL:
(a) not to use or authorize the use of the BC TEL Right of Way Area for any purpose, including the construction of any improvements, that in the reasonable opinion of BC TEL would be unsafe or would interfere with BC TEL's use of the BC TEL Right of Way Area;
(b) not to carry out blasting or aerial logging operations on or immediately adjacent to the BC TEL Right of Way Area without the prior written permission from BC TEL, which permission will not be unreasonably withheld or delayed; and
(c) not to intentionally do or authorize any act or thing that injures or endangers the BC TEL Works.
19. Licence
BC TEL will not licence the use of the BC TEL Right of Way Area, in whole or in part, without the prior written consent of the Nisg̱a'a Nation provided that:
(a) BC TEL may, despite any limitations in the grants and authorizations to BC TEL in this Agreement, grant a licence to Hydro for the use of the BC TEL Right of Way Area for the transmission and distribution of electric energy and telecommunications, without the consent of the Nisg̱a'a Nation. Any licence to Hydro will be deemed to include the right, exclusively for Hydro's benefit, to remove any tree located on Nisg̱a'a Lands which by falling or otherwise may endanger any of Hydro's works, and, except in an emergency, Hydro will be required to give the Nisg̱a'a Nation prior written notice of the exercise of this right outside the BC TEL Right of Way Area;
(b) the Nisg̱a'a Nation may attach conditions to its consent to any licence, including the provision of insurance and security, in a form and amount acceptable to the Nisg̱a'a Nation; and
(c) no licence will act as a release of any of BC TEL's obligations as set out in this Agreement.
20. Assignment
Despite paragraph 19, BC TEL may, without the consent of the Nisg̱a'a Nation, assign its interest in this Agreement to an affiliate (as defined in the Company Act) of BC TEL provided that BC TEL gives 120 days notice in writing of this change.
21. Disputes
Any dispute arising out of or in connection with this Agreement will be resolved as follows:
(a) the parties will attempt to resolve disputes by good faith negotiations, including timely disclosure of all relevant facts, information and documents;
(b) either party may, at any time, by written notice request that the dispute be referred to mediation, conducted by a mediator, knowledgeable about the matters in dispute;
(c) if the dispute is not resolved within 30 days of the notice to mediate under subparagraph (b) then, on the agreement of both parties, the dispute may be referred to a single arbitrator for final resolution. If the parties do not agree to arbitration then either party may refer the matter to a court of competent jurisdiction;
except that it is not incompatible with this paragraph for a party to apply to a court of competent jurisdiction at any time for interim or conservatory relief and for the court to grant that relief.
22. Notice
If notice is required or permitted under this Agreement, the notice:
(a) must be in writing;
(b) must be delivered to the address set out above, or other address as specified in writing by a party;
(c) may be given in one or more of the following ways:
(i) delivered personally or by courier, and it will be deemed received on the next business day;
(ii) delivered by fax, and it will be deemed received on the next business day; or
(iii) mailed by pre-paid post in Canada, and it will be deemed received on the eighth business day following.
23. Runs With the Land
This Agreement runs with and binds Nisg̱a'a Lands, to the extent reasonably necessary to give full force and effect to this Agreement.
24. Waiver and Consent
A breach of any term, condition, covenant or other provision of this Agreement may only be waived in writing, and any waiver will not be construed as a waiver of any subsequent breach. Consent to or approval of any act, where consent or approval is required under this Agreement, will not be construed as consent to or approval of any subsequent act.
25. Remedies
No remedy set out in this Agreement is exclusive of any other remedy provided by law, but will be in addition to any other remedy existing at law, in equity, or by statute.
26. Successors and Assigns
The terms and provisions of this Agreement will extend to, be binding upon and enure to the benefit of the parties and their successors and assigns.
27. Interpretation
In this Agreement:
(a) all attached schedules form an integral part of this Agreement;
(b) unless the context otherwise requires, the singular includes the plural and the masculine include the feminine gender, body politic and a corporation;
(c) the headings are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of this Agreement;
(d) a reference to an enactment of British Columbia or of Canada will be deemed to include a reference to any subsequent amendments or replacements; and
(e) if any provision is determined by a court or arbitrator of competent jurisdiction to be illegal or unenforceable, that provision will be considered separate and severable, and the legality or enforceability of the remaining provisions will not be affected by that determination.
IN WITNESS THEREOF the parties have duly executed this Agreement, as of the date first referred to above.
NISG̱A'A NATION
Per:______________________________
Per:______________________________
BC TEL
Per:______________________________
Per:______________________________
SCHEDULE A – DESCRIPTION OF BC TEL RIGHT OF WAY AREA
Appendix C-4
APPLICABLE FORMS OF DOCUMENT FOR ROADS LISTED
IN PART 3 OF APPENDIX C-1
Grant of Right of Way for
Secondary Provincial Roads
THIS GRANT OF RIGHT OF WAY made the __________ day of __________ , ____
BETWEEN:
NISG̱A'A NATION
[insert address]
("Nisg̱a'a Nation")
AND:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, as represented by the Minister of Transportation and Highways
[insert address]
("British Columbia")
WHEREAS:
A. The Nisg̱a'a Nation, Canada and British Columbia have entered into the Nisg̱a'a Final Agreement.
B. The Nisg̱a'a Nation wishes to grant rights of way over areas of Nisg̱a'a Lands for secondary provincial roads.
Therefore for good and valuable consideration the Nisg̱a'a Nation and British Columbia agree as follows:
1. Grant of Right of Way. The Nisg̱a'a Nation hereby grants a right of way to British Columbia for the secondary provincial road right of way areas described in Schedule A attached to this Grant of Right of Way.
2. Incorporation by Reference. This Grant of Right of Way incorporates by reference all provisions of the Roads and Rights of Way Chapter of the Nisg̱a'a Final Agreement relating to secondary provincial roads and rights of way for those roads.
3. Other provisions.
(a) Notice. Any notice required under this Grant of Right of Way:
(i) must be in writing;
(ii) must be delivered to the address set out above, or to another address specified in writing by a party; and
(iii) may be given in one or more of the following ways:
(A) delivered personally or by courier, and it will be deemed to be received on the next business day;
(B) delivered by fax, and it will be deemed to be received on the next business day; or
(C) mailed by pre-paid post in Canada, and it will be deemed received on the eighth business day following.
(b) Runs with the Land. This Grant of Right of Way runs with and binds the Nisg̱a'a Lands, to the extent reasonably necessary to give full force and effect to this Grant.
(c) Interpretation. In this Grant of Right of Way:
(i) all attached schedules form an integral part of this Grant;
(ii) headings are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of this Grant.
IN WITNESS THEREOF the parties have duly executed this Agreement, as of the date first referred to above.
NISG̱A'A NATION
Per:____________________
Per:____________________
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, as represented by the Minister of Transportation and Highways
Per:____________________
Per:____________________
SCHEDULE A – DESCRIPTION OF SECONDARY PROVINCIAL ROAD
RIGHT OF WAY AREAS
Grant of Private Road Easement
THIS AGREEMENT is dated ____________________ , __________
BETWEEN:
[NISG̱A'A NATION or NISG̱A'A VILLAGE]
(TO BE DETERMINED ON EXECUTION)
[insert address]
(the "Owner")
AND:
of
[insert address]
(the "Grantee")
WHEREAS:
A. The Grantee wishes an easement over the Servient Lands to provide access to the Grantee's Property.
B. The Owner is willing to grant to the Grantee an easement over the Servient Lands to provide access to the Grantee's Property.
Therefore in consideration of the payment of the fee to be paid by the Grantee, and the Grantee's covenants as set out in this Agreement, the Owner and Grantee agree as follows:
1. Definitions
"Grantee's Property" means the lands described in Schedule A attached to this Agreement.
"Easement Area" means that portion of the Servient Lands as described in Schedule B attached to this Agreement.
"Security" means the security for the performance of the Grantee's obligations as set out in paragraph 11 in the amount of $__________________.
"Servient Lands" means the lands described in Schedule B attached to this Agreement.
"Special Conditions" means the conditions, if any, set out in Schedule C attached to this Agreement.
2. Rights and Privileges on Easement Area
By this Agreement the Owner grants to the Grantee, and its invitees, permittees, representatives, employees, and agents, their heirs, executors, administrators and assigns, the full, free and uninterrupted easement, right and liberty over the Easement Area to enter on and use the Easement Area for the purpose of constructing and maintaining (including trimming or removing trees and vegetation) a road and using the Easement Area as a road to give pedestrian and vehicular access to the Grantee's Property.
3. Duration
This Easement is appurtenant to the Grantee's Property and passes with a conveyance or other disposition of the estate in fee simple of the Grantee's Property, and is binding on the Servient Lands.
4. Annual Fee
The Grantee will pay the Owner an annual fee in advance in the amount of $________ to cover the Owner's costs of administering this Agreement.
5. Covenant
The obligation of the Grantee in this Agreement constitutes both contractual obligations and covenants under Section 219 of the Land Title Act in respect of the Grantee's Property and runs with the Grantee's Property and binds successors in title.
6. Non Exclusive Use
This Agreement will not entitle the Grantee to exclusive possession of the Easement Area and the Owner reserves the right to grant other dispositions of the Easement Area so long as the grant does not impair the Grantee's permitted use of the Easement Area.
7. Covenants of the Grantee
The Grantee covenants with the Owner:
(a) to pay the annual fee as described in paragraph 4 at the address of the Owner set out above or at such other place as the Owner may specify under paragraph 14;
(b) to pay and discharge when due all applicable taxes, levies, charges and assessments now or hereafter assessed, levied or charged which relate to the Easement Area or any of the Grantee's improvements on the Easement Area which the Grantee is liable to pay;
(c) to observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any competent government authority, including an Owner government, in any way affecting the Easement Area and improvements situate thereon, or their use and occupation;
(d) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Easement Area or do or suffer to be done thereon by its invitees, permittees, representatives, employees, or agents, or anyone for whom the Grantee is responsible at law, anything that may be or becomes a nuisance;
(e) not to bury debris or rubbish of any kind on the Easement Area;
(f) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Easement Area, or anything that may be or become a nuisance or annoyance to the Servient Lands;
(g) to deliver to the Owner from time to time, upon demand, proof of insurance required under this Agreement, receipts or other evidence of payment of any taxes or charges owning, and other monetary obligations of the Grantee required to be observed by the Grantee pursuant to this Agreement;
(h) to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:
(i) any breach, violation or non-performance of any covenant, condition or obligation under this Agreement by the Grantee; and
(ii) any personal injury, death, or property damage, arising out of the Grantee's use or occupation of the Easement Area under this Agreement,
and the Owner may add the amount of any losses, damages, costs and liabilities to the fees payable under paragraph 4, and the amount added will be payable to the Owner immediately.
(i) to keep the Easement Area in a safe, clean and sanitary condition satisfactory to the Owner acting reasonably, and to make safe, clean and sanitary any portion of the Easement Area or any improvement thereon that the Owner, acting reasonably, may direct by notice in writing to the Grantee;
(j) to permit the Owner or its authorized representative to enter upon the Easement Area at any time to examine its condition;
(k) to use and occupy the Easement Area in accordance with the provisions of this Agreement including the Special Conditions, if any, set out in Schedule C;
(l) on the expiration or at the earlier cancellation of this Agreement:
(i) to quit peaceably and deliver possession of the Easement Area to the Owner;
(ii) to de-commission the road, including the removal of any structures or works on the Easement Area, and restore the surface of the Easement Area to the satisfaction of the Owner acting reasonably;
and to the extent necessary, this covenant shall survive the expiration or cancellation of this Agreement;
(m) to obtain and keep in force insurance covering the Owner and the Grantee (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 Easement Area to an amount not less than $1,000,000.00;
(n) notwithstanding subparagraph (m), the Owner may from time to time, acting reasonably, considering the amount of insurance a prudent owner would carry, require the Grantee to increase the amount of insurance and the Grantee will, within 60 days of receiving the request, obtain the required additional insurance and deliver to the Owner written confirmation of the change;
(o) not to interfere with the activities, works or other improvements of any other person who enters on or uses or occupies the Easement Area 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 Easement Area, in accordance with paragraph 6; and
(p) if the Grantee, or its agents, contractors or representatives, discover any archaeological material on the Easement Area, to take all reasonable steps and precautions to minimize disturbance of that material, and to immediately notify the Owner.
8. Cancellation
Despite any other provision of this Agreement, this Agreement may be cancelled if the Grantee fails or refuses to observe or perform any term in this Agreement, and the failure continues after the Owner gives written notice of the failure to the Grantee for a period of:
(a) 30 days; or
(b) 150 days, if the failure because of its nature reasonably requires more than 30 days to cure, and provided that the Grantee proceeds diligently and continuously to cure the failure
then the Owner may by further written notice to the Grantee cancel this Agreement and despite paragraph 7 (l), any fixtures to the Easement Area will, at the discretion of the Owner, become the property of the Owner.
9. Relocation of Easement Area
If the Owner requires the Easement Area for another purpose, the Owner may, on 180 days written notice to the Grantee and in consultation with the Grantee:
(a) at its cost locate and construct an alternate road providing access to the Grantee's Property to a standard at least equivalent to the original road;
(b) grant a replacement Agreement for the alternate road on the same terms as this Agreement; and
(c) by further written notice to the Grantee cancel this Agreement;
and on cancellation the Grantee will quit peaceably and deliver possession of the Easement Area, except that the Grantee may, at its election, within 60 days of the cancellation, or such longer time as reasonably required, remove any fixtures from the Easement Area, but the Grantee will not be required to comply with paragraph 7 (l) (ii).
10. Third Party Notice
The Owner will not dispose of, or agree to dispose of, the Servient Lands without first notifying any intended purchaser of the existence of this Agreement.
11. Ownership of Commercially Valuable Timber
All timber of commercial value on the Easement Area will remain the property of the Owner.
12. Security
The Grantee will deliver the Security to the Owner within 30 days of the commencement of this Agreement, and in any event prior to the Grantee's use of the Easement Area, as security for the performance of the Grantee's obligations under this Agreement, and the following will apply:
(a) the Grantee will maintain the Security in full until the later of:
(i) the termination of this Agreement; or
(ii) the complete fulfillment of all of the Grantee's obligations under this Agreement;
(b) if the Grantee defaults in the performance of any of its obligations under this Agreement, the Owner may, in its sole election, draw on and use the Security to reimburse the Owner for all reasonable costs and expenses, including legal and other professional services costs if any, caused by or arising out of the Grantee's breach, and in the event of a call on the Security the Grantee will, as a condition of the continuation of this Agreement, immediately pay to the Owner the amount of the draw so that the full amount of the Security is available.
13. Disputes
Any dispute arising out of or in connection with this Agreement will be resolved as follows:
(a) the parties will attempt to resolve disputes by good faith negotiations, including timely disclosure of all relevant facts, information and documents;
(b) either party may, at any time, by written notice request that the dispute be referred to mediation, conducted by a mediator, knowledgeable about the matters in dispute;
(c) if the dispute is not resolved within 30 days of the notice to mediate under subparagraph (b) then, on the agreement of both parties, the dispute may be referred to a single arbitrator for final resolution. If the parties do not agree to arbitration then either party may refer the matter to the courts;
except that it is not incompatible with this paragraph for a party to apply to a court at any time for interim or conservatory relief, and for the court to grant that relief.
14. Notice
If notice is required or permitted under this Agreement, the notice:
(a) must be in writing;
(b) must be delivered to the address set out above, or other address as specified in writing by a party; and
(c) may be given in one or more of the following ways:
(i) delivered personally or by courier, and it will be deemed received on the next business day;
(ii) delivered by fax, and it will be deemed received on the next business day; or
(iii) mailed by pre-paid post in Canada, and it will be deemed received on the eighth business day following.
15. Waiver and Consent
A breach of any term, condition, covenant or other provision of this Agreement may only be waived in writing, and any waiver will not be construed as a waiver of any subsequent breach. Consent to or approval of any act, where consent or approval is required under this Agreement, will not be construed as consent to or approval of any subsequent act.
16. Remedies
No remedy set out in this Agreement is exclusive of any other remedy provided by law, but will be in addition to any other remedy existing at law, in equity, or by statute.
17. Enurement
The terms and provisions of this Agreement shall extend to, be binding upon and enure to the benefit of the parties hereto and their successors and permitted assigns.
18. Interpretation
In this Agreement:
(a) all attached schedules form an integral part of this Agreement;
(b) unless the context otherwise requires, the singular includes the plural and the masculine include the feminine gender, body politic and a corporation;
(c) the headings are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of the Agreement;
(d) a reference to an enactment of British Columbia or of Canada will be deemed to include a reference to any subsequent amendments or replacements; and
(e) if any provision is determined by a court or arbitrator of competent jurisdiction to be illegal or unenforceable, that provision will be considered separate and severable, and the legality or enforceability of the remaining provisions will not be affected by that determination.
IN WITNESS THEREOF the parties have duly executed this Agreement, as of the date first referred to above.
NISG̱A'A NATION
Per:____________________
Per:____________________
GRANTEE
Per:____________________
(authorized signatory of Grantee)
SCHEDULE A – DESCRIPTION OF GRANTEE'S PROPERTY
SCHEDULE B – DESCRIPTION OF BOTH SERVIENT LANDS AND EASEMENT AREA
SCHEDULE C – SPECIAL CONDITIONS
Grant of Right of Way for Access Roads To
British Columbia Hydro and Power Authority
This Agreement is dated ____________________ , __________
BETWEEN:
NISG̱A'A NATION
[insert address]
(the "Nisg̱a'a Nation")
AND:
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY, continued under the Hydro and Power Authority Act, RSBC 1996, c. 212
[insert address]
("Hydro")
WHEREAS:
A. The Nisg̱a'a Nation, Canada and British Columbia have entered into the Nisg̱a'a Final Agreement.
B. The Nisg̱a'a Nation wish to grant to Hydro rights on Nisg̱a'a Lands for certain roads existing on Nisg̱a'a Lands on the effective date.
Therefore for good and valuable consideration the Nisg̱a'a Nation and Hydro agree as follows:
1. Definitions
"BC TEL" means BC TEL, and its successors and assigns.
"Final Agreement" means the Nisg̱a'a Final Agreement between the Nisg̱a'a Nation, Canada and British Columbia.
"Hydro Access Roads" means trails or roads that provide access to a Hydro right of way or works, including surfacing, bridges, drainage and support works, and other works required to maintain the integrity of the travelled surface.
"Hydro Access Road Areas" means those portions of Nisg̱a'a Lands as described in Schedule A attached to this Agreement.
"Hydro Purposes" means the transmission and distribution of electric energy and telecommunications.
2. Relationship to Final Agreement
This Agreement is made under the Final Agreement, and defined terms in the Final Agreement will have the same meaning in this Agreement.
3. Rights on Hydro Access Road Areas
The Nisg̱a'a Nation grants to Hydro, and its employees, representatives, agents, contractors, licensees and assignees, the full, free and uninterrupted right, liberty and right of way, as follows:
(a) to construct, operate, maintain, repair, alter, upgrade, remove and replace Hydro Access Roads, and remove and trim trees, vegetation and obstructions, on the Hydro Access Road Areas;
(b) to install, maintain and use gates in all fences constructed by others which are now or hereafter shall be on the Hydro Access Road Areas;
(c) to pass and repass over the Hydro Access Road Areas with or without equipment, machinery and materials as reasonably required by Hydro; and
(d) to generally do all acts or things necessary in connection with the foregoing.
4. Non Exclusive Use
This Agreement will not entitle Hydro to exclusive possession of the Hydro Access Road Areas or other parts of the Nisg̱a'a Lands and the Nisg̱a'a Nation reserves the right to grant other dispositions of the Hydro Access Road Areas so long as the grant does not materially affect the exercise of Hydro's rights under this Agreement.
5. Duration
In respect of a Hydro Access Road Area, the rights, liberties and rights of way granted under this Agreement are for so long as required and will terminate, without compensation to Hydro, when:
(a) the Hydro right of way that the Hydro Access Road Area serves terminates; or
(b) Hydro no longer requires the Hydro Access Road Areas, and:
(i) Hydro gives 90 days written notice to the Nisg̱a'a Nation; or
(ii) the Nisg̱a'a Nation gives 90 days written notice to Hydro.
6. Work Plans For Hydro Access Roads
Except in an emergency, Hydro will provide to the Nisg̱a'a Nation a written work plan describing proposed work on or related to a Hydro Access Road Area prior to undertaking the construction or development of any Hydro Access Road. Hydro will provide the work plan in time to afford the Nisg̱a'a Nation the opportunity to comment, and Hydro will use reasonable efforts to accommodate any suggestions or requests presented by the Nisg̱a'a Nation provided they do not result in significant increased costs.
7. Protection of the Environment
Hydro will undertake activities permitted under this Agreement having regard for the impact on the environment, and will take prudent measures to minimize damage or disruption to the environment.
8. Entry on Nisg̱a'a Lands outside the Hydro Right of Way Areas
Hydro, and its employees, representatives, agents, contractors, licensees and assignees, may enter onto Nisg̱a'a Lands outside the Hydro Access Road Areas for the purpose of undertaking works to protect Hydro Access Roads, or to protect persons and property, as follows:
(a) Hydro will before commencing any work deliver a written work plan describing the effect and extent of the proposed work on Nisg̱a'a Lands to the Nisg̱a'a Nation for approval;
(b) the Nisg̱a'a Nation will not unreasonably withhold approval of the work plan, considering the effect of the proposed work, including the cost of the proposed works compared to the cost of alternate solutions, the extent of the risk of not undertaking the work, and the impact on the Nisg̱a'a Lands. If Hydro and the Nisg̱a'a Nation cannot agree on a work plan requested by Hydro within 30 days of receipt by the Nisg̱a'a Nation of the proposed work plan, then either party may refer the disagreement to dispute resolution under Paragraph 14 of this Agreement;
(c) Hydro will minimize the damage to and time spent on Nisg̱a'a Lands;
(d) Hydro will pay fair compensation, as defined in the Final Agreement, for any interference with or damage to adjacent Nisg̱a'a Lands.
Notwithstanding other provisions of this paragraph or this Agreement, in an emergency Hydro may undertake works and take steps on Nisg̱a'a Lands as are reasonably required to be taken immediately in order to protect Hydro Access Roads, and in that event Hydro will as soon as reasonably possible notify the Nisg̱a'a Nation in writing.
9. Relocation of Hydro Access Road Areas
If the Nisg̱a'a Nation requires a portion of a Hydro Access Road Area for another purpose, then upon request by the Nisg̱a'a Nation, Hydro will relocate any Hydro Access Road Area, including the related Hydro Access Road, to a new location as follows:
(a) the relocation will proceed only if the new location is reasonably suitable for use for a Hydro Access Road considering construction, maintenance and operation and costs; and
(b) the Nisg̱a'a Nation will give reasonable notice to permit design, planning and construction of the Hydro Access Road to be relocated; and
(c) the Nisg̱a'a Nation will pay all reasonable costs, including costs of design, supervision and construction.
The Nisg̱a'a Nation will extend a Hydro Access Road Area as reasonably required, so that the extended Hydro Access Road Area has similar priority over other charges and encumbrances as the original. When a portion of a Hydro Access Road Area is relocated, then the Hydro Access Road Area for the portion that is abandoned will be terminated.
10. Indemnity
Hydro will indemnify and save harmless the Nisg̱a'a Nation from and against all losses, damages, costs, liabilities, claims, expenses, and suits, including fees of solicitors and other professional advisors, arising out of:
(a) any breach, violation or non-performance by Hydro of any of Hydro's covenants, conditions or obligations under this Agreement; and
(b) any personal injury, death, or property damage, including environmental damage, occurring on or to Nisg̱a'a Lands arising from Hydro's use or occupation of Nisg̱a'a Lands under this Agreement,
but not for any claims based on nuisance or the rule in Rylands v Fletcher unless Hydro was negligent.
11. Covenants of Hydro
Hydro covenants with the Nisg̱a'a Nation:
(a) to pay compensation to the Nisg̱a'a Nation for any damage to buildings, crops (except for trees in the Hydro Access Road Areas), livestock, drains, ditches, culverts, fences, trails, bridges, roads and fruit, nut or ornamental trees caused by Hydro;
(b) despite subparagraph (a), to pay compensation to its owner, in accordance with generally accepted principles of timber valuation, for all merchantable timber cut or damaged by Hydro on Nisg̱a'a Lands on or adjacent to the Hydro Access Road Areas, and the parties agree that, on payment, title to any timber cut on the Nisg̱a'a Lands under this Agreement vests in Hydro;
(c) to pay and discharge when due all applicable taxes, levies, charges and assessments now or hereafter assessed, levied or charged to the account of Hydro which relate to the Hydro Access Road Areas and which Hydro is liable to pay;
(d) to keep the Hydro Access Road Areas in a safe, clean and sanitary condition to the extent the condition relates to Hydro's use or occupation, and on written notice from the Nisg̱a'a Nation to make safe, clean and sanitary any portion of the Hydro Access Road Areas that contravene the provisions of this covenant, provided that Hydro has no obligation to keep the Hydro Access Roads suitable for use by anyone except Hydro;
(e) not to disturb or interfere with any survey monuments, bars or iron pins located on the Nisg̱a'a Lands including the Hydro Access Road Areas;
(f) not to bury debris or rubbish of any kind on Nisg̱a'a Lands in excavations or backfill, and to remove shoring and similar temporary structures as backfilling proceeds;
(g) to bury and maintain all underground works as may be required so as not to unduly interfere with the drainage of Nisg̱a'a Lands;
(h) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Hydro Access Road Areas, or anything that may be or become a nuisance or annoyance to the owners of the Nisg̱a'a Lands, except to the extent necessary to carry out any of the matters under this Agreement;
(i) to observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any competent governmental authority which relate to the Hydro Access Road Areas;
(j) to permit the Nisg̱a'a Nation to enter upon the Hydro Access Road Areas at any time to examine its condition;
(k) if for any reason this Agreement terminates with respect to a portion of the Hydro Access Road Areas, to:
(i) quit peaceably that portion of the Hydro Access Road Areas; and
(ii) decommission any Hydro Access Roads on, and restore the surface of, that portion of the Hydro Access Road Areas to a condition to which similar lands are typically restored in British Columbia, unless otherwise agreed to in writing by the Nisg̱a'a Nation and Hydro at the time of restoration;
and to the extent necessary, this covenant will survive the termination of this Agreement; and
(l) if Hydro, or its employees, representatives, agents, contractors, licensees or assignees, discover any archaeological material on the Hydro Access Road Areas, to take all reasonable steps and precautions to minimize disturbance of that material, and to immediately notify the Nisg̱a'a Nation.
12. Covenants of the Nisg̱a'a Nation
The Nisg̱a'a Nation covenants with Hydro:
(a) not to use or authorize the use of the Hydro Access Road Areas for any purpose, including the construction of any improvements, that in the reasonable opinion of Hydro would be unsafe or would interfere with Hydro's use of the Hydro Access Road Areas; and
(b) not to intentionally do or authorize any act or thing that injures or endangers the Hydro Access Roads.
13. Licence
Hydro will not licence the use of the Hydro Access Road Areas, in whole or in part, without the prior written consent of the Nisg̱a'a Nation provided that:
(a) Hydro may grant a licence to BC Tel for the use of the Hydro Access Road Areas without the consent of the Nisg̱a'a Nation;
(b) the Nisg̱a'a Nation may attach conditions to its consent to any licence, including the provision of insurance and security, in a form and amount acceptable to the Nisg̱a'a Nation; and
(c) no licence will act as a release of any of Hydro's obligations as set out in this Agreement.
14. Disputes
Any dispute arising out of or in connection with this Agreement will be resolved as follows:
(a) the parties will attempt to resolve disputes by good faith negotiations, including timely disclosure of all relevant facts, information and documents;
(b) either party may, at any time, by written notice request that the dispute be referred to mediation, conducted by a mediator, knowledgeable about the matters in dispute;
(c) if the dispute is not resolved within 30 days of the notice to mediate under subparagraph (b) then, on the agreement of both parties, the dispute may be referred to a single arbitrator for final resolution. If the parties do not agree to arbitration then either party may refer the matter to a court of competent jurisdiction
except that it is not incompatible with this paragraph for a party to apply to a court of competent jurisdiction at any time for interim or conservatory relief and for the court to grant that relief.
15. Notice
If notice is required or permitted under this Agreement, the notice:
(a) must be in writing;
(b) must be delivered to the address set out above, or other address as specified in writing by a party;
(c) may be given in one or more of the following ways:
(i) delivered personally or by courier, and it will be deemed received on the next business day;
(ii) delivered by fax, and it will be deemed received on the next business day; or
(iii) mailed by pre-paid post in Canada, and it will be deemed received on the eighth business day following.
16. Runs With the Land
This Agreement runs with and binds Nisg̱a'a Lands, to the extent reasonably necessary to give full force and effect to this Agreement.
17. Waiver and Consent
A breach of any term, condition, covenant or other provision of this Agreement may only be waived in writing, and any waiver will not be construed as a waiver of any subsequent breach. Consent to or approval of any act, where consent or approval is required under this Agreement, will not be construed as consent to or approval of any subsequent act.
18. Remedies
No remedy set out in this Agreement is exclusive of any other remedy provided by law, but will be in addition to any other remedy existing at law, in equity, or by statute.
19. Successors and Assigns
The terms and provisions of this Agreement will extend to, be binding upon and enure to the benefit of the parties and their successors and assigns.
20. Interpretation
In this Agreement:
(a) all attached schedules form an integral part of this Agreement;
(b) unless the context otherwise requires, the singular includes the plural and the masculine include the feminine gender, body politic and a corporation;
(c) the headings are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of this Agreement;
(d) a reference to an enactment of British Columbia or of Canada will be deemed to include a reference to any subsequent amendments or replacements; and
(e) if any provision is determined by a court or arbitrator of competent jurisdiction to be illegal or unenforceable, that provision will be considered separate and severable, and the legality or enforceability of the remaining provisions will not be affected by that determination.
IN WITNESS THEREOF the parties have duly executed this Agreement, as of the date first referred to above.
NISG̱A'A NATION
Per:____________________
Per:____________________
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY
Per:____________________
Per:____________________
SCHEDULE A – DESCRIPTION OF HYDRO ACCESS ROAD AREAS
Appendix C-5
CERTIFICATES OF POSSESSION ISSUED BY
CANADA ON FORMER NISG̱A'A INDIAN RESERVES
ON NISG̱A'A LANDS
Interest Holder | Legal Description | Instrument | Registration No. |
Gingolx (former Kincolith I.R. # 14) | |||
Oliver Melvin Stewart #455 | Lot 1, Block 1, Plan 1161 | 34114 | 79812 |
Oliver Melvin Stewart #455 | Lot 2, Block 1, Plan 1161 | 34115 | 79813 |
James Henry Robinson #411 | Lot 3, Block 1, Plan 1161 | 34767 | 81699 |
Robert Lambert Stewart #111 | Lot 4, Block 1, Plan 1161 | 9006 | 24233 |
Sarah K. Barton #26 | Lot 5, Block 1, Plan 1161 | 103977 | 212875 |
Alice Rosabelle Benson #31 | Lot 6, Block 1, Plan 1161 | 119591 | 249559 |
Reuben Morgan #65 | Lot 7, Block 1, Plan 1161 | 16692 | 16103 |
Howard Charles Lincoln #57 | Lot 8, Block 1, Plan 1161 | 3024 | 24237 |
Esther Melissa Adams #202 | Lot 2, Block 2, Plan 1161 | 30217 | 63586 |
Kenny Fred Moore #982 | Lot 5, Block 2, Plan 1161 | 50599 | 128887 |
Mercy Evangeline Robinson #156 | Lot 1, Block 3, Plan 1161 | 32261 | 72354 |
Katherine A. Clayton #40 | Lot 2, Block 3, Plan 1161 | 49682 | 126697 |
Andrew William Morrison #257 Mitchell Sydney Morrison #70 | Lot 3, Block 3, Plan 1161 | 10516 | 24313 |
James Howard Stevens #88 | Lot 4, Block 3, Plan 1161 | 5338 | 24255 |
Charles Abraham Stewart #97 (Estate) | Lot 5, Block 3, Plan 1161 | 11510 | 24313 |
Abel Louis Stewart #92 Paul Alfred Stewart #189 (joint tenants) | Lot 6, Block 3, Plan 1161 | 4734 | 24257 |
Philip Rene Watts #471 | Lot 7, Block 3, Plan 1161 | 109176 | 225459 |
Stephen (Steven) Geofrey Doolan #258 | Lot 8, Block 3, Plan 1161 | 33791 | 78596 |
Lily Eleanor McIntyre #897 | Lot 9, Block 3, Plan 1161 | 46943 | 118177 |
Arthur Robert Robinson #417 Ambrose Edward Robinson #156 Marilyn Sarah Robinson #156 Anthony Curtis Robinson #156 (undivided 1/4 interest) | Lot 1, Block 4, Plan 1161 | 20811 20814 20812 20813 | 32594 |
Arnold Stewart #104 - Pauline Fern Stewart #104 (undivided 1/2 interest) | Lot 2, Block 4, Plan 1161 | 6634 | 24405 |
Hubert Stevens #149 | Lot 4, Block 4, Plan 1161 | 9273 | 24406 |
Benjamin Edward Stevens #227 Hubert Emerald Stevens #149 James Stevens #88 Robert Colin Stevens #169 Albert Henry Stevens #179 Peter George Stevens #205 Ray Stevens #447 Larry Allen Stevens #1142 (undivided 1/8th interest) | Lot 5, Block 4, Plan 1161 | 115061 115062 115063 115064 115065 115066 115067 115068 | 238738 |
Henry Yas. Steven (Stephens) #298 | Lot 7, Block 4, Plan 1161 | 50430 | 128567 |
Lily Eleanor McIntryre #897 | Lot 8, Block 4, Plan 1161 | 49385 | 125972 |
Perry Cecil George Barton #153 (Estate) | Lot A, Block 6, Plan 1161 | 35802 | 85165 |
Albert David Barton #591 | Lot B, Block 6, Plan 1161 | 51054 | 129952 |
Percival Desmond Barton #560 (36.92% interest) Debra Elaine Barton #579 (12.62% interest) Zelda Marie Barton #199 (12.62% interest) Leo Brian Barton #199 (12.62% interest) Claude Nathan Barton #199 (12.61% interest) Clinton Shannon Barton #199 (12.61% interest) | Lot 1, Block 6, Plan 1161 | 34971 | 82422 |
Marlon Bradford Watts #459 | Lot 1A, Block 6, Plan 1161 | 31116 | 68394 |
Arthur Mayard Angus #17 | Lot 2, Block 6, Plan 1161 | 30152 | 60260 |
Evelyn Fanny Nelson #76 (Estate) | Lot 3, Block 6, Plan 1161 | 30757 | 67194 |
David George Stewart #781 | Lot 4, Block 6, Plan 1161 | 124852 | 260621 |
Larry Melvin Angus #297 Margaret Nellie Massingale #820 | Lot 5, Block 6, Plan 1161 | 119630 | 249679 |
Marjorie Charlotte Stewart #162 | Lot 6, Block 6, Plan 1161 | 44455 | 112472 |
Charles Max Haines #164 | Lot 8, Block 6, Plan 1161 | 30347 | 64266 |
George William Barton #435 | Lot 10, Block 6, Plan 1161 | 37108 | 89782 |
Henry William Angus #229 | Lot 11, Block 6, Plan 1161 | 22318 | 40949 |
Esther Dorothy Doolan #241 | Lot 12, Block 6, Plan 1161 | 32586 | 73258 |
Benson Young #127 (Estate) | Lot 14, Block 6, Plan 1161 | 3010 | 24329 |
George Randolph Moore #387 Christine Arlene Moore #387 (joint tenants) | Lot 1, Block 7, Plan 1161 | 20088 | 29536 |
Eveyln Fanny Nelson #76 (Estate) James George Alexander #682 Sydney Joshua Alexander #464 Georgina Sarah Barton #24 (each with an undivided interest) | Lot 3, Block 7, Plan 1161 | 42648 | 107551 |
Marietta Joyce Alexander #464 | Lot 6, Block 7, Plan 1161 | 32675 | 73586 |
Harold Peter Watts #2 | Lot 8, Block 7, Plan 1161 | 50474 | 128662 |
Hubert Max Barton #343 Frederick Edward Barton #22 Godwin Herman Barton #22 (undivided 1/3 interest) | Lot 9, Block 7, Plan 1161 | 30357 | 64314 |
MacDonald Melvin Trimble #309 | Lot 1, Block 9, Plan 1161 | 22597 | 43561 |
Mercy Evangeline Thomas #1102 Emily Rose Stevens #88 Sarah Laura Moore #68 Edward George Nelson #75 (joint tenants) | Lot 3, Block 9, Plan 1161 | 32823 | 74077 |
Ramona Stanley (Smythe) #87 | Lot 4, Block 9, Plan 1161 | 3031 | 24849 |
Rose Carol Smythe #220 Lavern Joyce Smythe #220 | Lot 1, Block 10, Plan 1161 | 49650 | 126658 |
Alfred Lazarus Smythe #222 | Lot 2, Block 10, Plan 1161 | 11979 | 24333 |
Laura Myrtle Doolan #48 | Lot 1, Block 11, Plan 1161 | 40830 | 102919 |
Laura Myrtle Doolan #48 | Lot 2, Block 11, Plan 1161 | 30831 | 102920 |
Rose Carol Smythe #220 Lavern Joyce Smythe #220 | Lot 4, Block 11, Plan 1161 | 49649 | 126657 |
Harold Peter Watts #2 | Lot 5, Block 11, Plan 1161 | 4745 | 24337 |
Katherine A. Clayton #40 | Lot 2, Block 12, Plan 1161 | 107944 | 221110 |
Reuben Morgan #65 | Lot 3, Block 12, Plan 1161 | 6677 | 24419 |
Adelia Grace Nelson #75 | Lot 1, Block 13, Plan 1161 | 107997 | 221380 |
Thelma Lena Stevens #169 | Lot 2, Block 13, Plan 1161 | 11572 | 24421 |
Thelma Lena Stevens #169 | Lot 5, Block 13, Plan 1161 | 105357 | 215528 |
Donald S. Doolan #525 | Lot 8, Block 13, Plan 1161 | 40905 | 103126 |
Steven Mark Watts #430 | Lot 9-1, Block 13, Plan 60904 | 29215 | 57974 |
Steven Mark Watts #430 | Lot 9-2, Block 13, Plan 60904 | 29214 | 57974 |
John Edward Stevens #673 | Lot 1, Block 14, Plan 1161 | 123979 | 259175 |
Louis John Stewart #105 | Lot 2, Block 14, Plan 1161 | 8491 | 24442 |
Emily Venn #118 | Lot 4, Block 14, Plan 1161 | 5588 | 24438 |
Raymond Alan Stewart #266 | Lot 5, Block 14, Plan 1161 | 21774 | 37517 |
Laura Edith Lincoln #58 Frederick Philip Harris Lincoln #176 (joint tenants) | Lot 6, Block 14, Plan 1161 | 53541 53542 | 135092 |
William Charles Stewart #256 | Lot 8, Block 14, Plan 1161 | 22331 | 41127 |
Isaac Benjamin Watts #393 | Lot 10, Block 14, Plan 1161 | 30745 | 67115 |
Harold Philip Barton #150 | Lot 1, Block 15, Plan 1161 | 6110 | 24428 |
Jessie Josephine Gurney #49 | Lot 4, Block 15, Plan 1161 | 53445 | 134933 |
Eugene David Stewart #330 | Lot 1, Block 16, Plan 1161 | 19709 | 27906 |
Gingolx (formerly Kincolith I.R. #14A) | |||
Mercy Evangeline Thomas #1102 | Lot 1. Plan 1918 RSBC | 46716 | 117570 |
Mercy Evangeline Thomas #1102 | Lot 2, Plan RSBC 2501R | 108688 | 223247 |
Mercy Evangeline Thomas #1102 | Lot 4, Plan RSBC 2501R | 108689 | 223247 |
Formerly Gitlakdamix I.R. #1 | |||
Elsie H. Clayton #23 (Estate) | Lot 1, Block 1, Plan 1163 | 4400 | 20978 |
Marjorie Bright #14 (1/3 interest) Ben R. Bright #575 (2/18 th interest) Melvin M. Bright #608 (2/18 th interest) Wanda V. Bright #421 (2/18 th interest) Bessie Blackwater #551 (2/18 th interest) Elinor N. Bright #517 (2/18 th interest) Charlotte J. Scott #1242 (2/18 th interest) | Lot 3, Block 1, Plan 1163 | 124177 124178 124179 124180 124181 124182 124183 | 20977 |
Martha Munroe #62 (Estate) | Lot 4, Block 5, Plan 1163 | 4860 | 20976 |
Andrew Roger Mercer #290 | Parcel 1, Lot 5, Block 5, Plan 1163 | 17535 | 20562 |
Rachel Haizimsque #42 | Lot 11, Block 8, Plan 1163 | 4862 | 20975 |
Oscar Harold Mercer #102 | Lot 2, Block 9, Plan 1163 | 4863 | 20974 |
Ellen Davis #26 (Estate) | Lot 1, Block 10, Plan 1163 | 4871 | 20949 |
Norma Grace Varley #1023 Judith Pamela Gonu #195 Karen Sopia Johnson #303 Sharon Alexandria Johnson #309 Lilly Eileen Johnson #1013 Marjery Esther Eli #284 Charlene Louise Johnson #433 Teresa Louanne Johnson #540 Diane Pauline Robinson #538 Albert Curtis Robinson #640 Brian Craig Robinson #670 Melanie Stella Robinson #676 | Lot 5, Block 10, Plan 1163 | 107811 107812 107813 107814 107815 107816 107817 107818 107819 107820 107821 107822 | 220887 |
New Aiyansh (formerly New Aiyansh I.R. No. 1) | |||
Edmond Isaac Wright #246 | Lot 19-6, Plan 68282 | 45695 | 115776 |
Gitwinksihlkw (formerly Canyon City I.R. No. 7) | |||
Frazer Harry Nice (Nyce) #48 | Lot 1, Plan 62995 | 29153 | 57633 |
Minnie Azak #30 | Lot 3, Plan 62995 | 38984 | 98478 |
Maurice Alfred Squires #159 | Lot 7, Plan 62995 | 124878 | 260681 |
W.C. Azak #75 (Transfer to Gitwinksihlkw band being processed) | Lot 9, Plan 62995 | 32524 | 73065 |
Lawrence Peter Adams #36 | Lot 11, Plan 62995 | 29161 | 57633 |
Martha Doris Burton #184 (1/11 th interest) Agnes Jean Squires #220 (1/11 th interest) Phyllis Marjorie Cheecham #227 (1/11 th interest) Jerry Edward Azak #41 (1/11 th interest) Perry Lloyd Azak #46 (2/11 th interest) Herbert Wayne Azak #71 (1/11 th interest) Arnold Ross Azak #79 (2/11 th interest) Josephine Karen Azak #87 (2/11 th interest) | Lot 12, Plan 62995 | 107669 107670 107671 107672 107673 107674 107675 107676 | 220274 |
Grace Azak #5 | Lot 18, Plan 62995 | 32990 | 74503 |
Virginia Stella Azak #35 Jacob Dennis Gary #56 (Estate) | Lot 20, Plan 62995 | 30348 | 64268 |
Chester Earle Nyce #66 | Lot 22, Plan 62995 | 29850 | 61642 |
Alice Azak #6 | Lot 24, Plan 62995 | 29170 | 57633 |
Alvin Jonathan Azak #52 | Lot 27, Plan 62995 | 29172 | 57633 |
(Note: Bracketed spellings are correct and have been agreed upon by the parties.) |
Appendix C-6
PERSONS WITH AN INTEREST AUTHORIZED BY BAND COUNCIL RESOLUTION ON FORMER NISG̱A'A INDIAN RESERVES
ON NISG̱A'A LANDS
Homeowner Member Name | Member Band No. | Home Location |
Gitwinksihlkw Village | ||
Steven C. Azak Sr. | 6790004501 | Lot 5, Plan 62995 |
Joshua W. Azak | 6790003301 | Lot 6, Plan 62995 |
Irene A. Griffin | 6790015501 | Lot 8, Plan 62995 |
Peter R. Squires Sr. | 6790014601 | Lot 15, Plan 62995 |
Bruce J. Haldane Sr. | 6790004901 | Lot 17, Plan 62995 |
Henry Azak | 6790003901 | Lot 19, Plan 62995 |
Bert C. Azak | 6790013201 | Lot 21, Plan 62995 |
Chester E. Nyce | 6790006601 | Lot 22, Plan 62995 |
Alice Azak | 6790000602 | Lot 24, Plan 62995 |
Arnold Azak | 6790007901 | Lot 25, Plan 62995 |
Fred A. Azak | 6790006101 | Lot 26, Plan 62995 |
Alvin J. Azak | 6790005201 | Lot 27, Plan 62995 |
Pheobe Azak | 6790002902 | Lot 1-new, Plan |
Rodney Moore | 6790008501 | Lot 2 new, Plan |
Lavinia Azak | 6790012202 | Lot 3 new, Plan |
Mark R. Azak | 6790006401 | Lot 4 new, Plan |
Jerry Azak | 6790004101 | Lot 5 new, Plan |
Arthur Nyce | 6790007301 | Lot 6 new, Plan |
Collier H. Azak | 6790004701 | Lot 7 new, Plan |
P. Norman Squires Jr. | 6790024401 | Lot 12 new, Plan |
Silas Azak | 6790009001 | Lot 13 new, Plan |
Dennis Nyce | 6790009601 | Lot 18 new, Plan |
R. Allan Azak | 6790011801 | Lot 20 new, Plan |
Alice Nyce | 6790016201 | Lot 21 new, Plan |
William J. Azak | 6790011001 | Lot 22 new, Plan |
Leonard F. Squires | 6790016001 | Lot 23 new, Plan |
T. Ron Nyce | 6790005701 | Lot 24 new, Plan |
J. Clifford Azak Sr. | 6790008901 | Lot 25 new, Plan |
Perry Azak | 6790004601 | Lot 26 new, Plan |
Bruce L. Azak | 6790011501 | Lot 27 new, Plan |
Arthur R. Azak | 6790004201 | Lot 28 new, Plan |
George Morgan | 6790003201 | Lot 29 new, Plan |
Steven Bolton Sr. | 6790008101 | Lot 30 new, Plan |
Dorothy Doolan | 6790011401 | Lot 31 new, Plan |
Harry Nyce Jr. | 6790014401 | Lot 34 new, Plan |
Village of Kincolith | ||
Albert A. Nelson | 6710046101 | Lot 9 Block 1, Plan 1161 |
G.V.G. Rental | Lot 1 Block 2, Plan 1161 | |
Esther Adams | 6710020202 | Lot 2 Block 2, Plan 1161 |
Band Owned | Lot 3 Block 2, Plan 1161 | |
Band Owned | Lot 4 Block 2, Plan 1161 | |
William Watts Sr. | 6710026801 | Lot 6 Block 2, Plan 1161 |
Larry Angus | 6710029701 | Lot 3 Block 4, Plan 1161 |
Maintenance Department | Lot 6 Block 4, Plan 1161 | |
S.E.P. Office | Lot 6 A Block 4, Plan 1161 | |
Henry Stephens | 6710029801 | Lot 7 Block 4, Plan 1161 |
Lily McIntyre/Doolan | 6710089701 | Lot 8 Block 4, Plan 1161 |
GVFB Fire Hall | Lot 9 Block 4, Plan 1161 | |
Mission House | Lot 1 Block 5, Plan 1161 | |
Christ Church | Lot 1 Block 5, Plan 1161 | |
G.V.G./TV Com. Cabin | Lot 0 Block 6, Plan 1161 | |
G.V.G./Band Owned | Lot 7 Block 6, Plan 1161 | |
G.V.G./Band Owned | Lot 9 Block 6, Plan 1161 | |
William Stanley | 6710153401 | Lot 13 Block 6, Plan 1161 |
Reuben Morgan | 6710006501 | Lot 2 Block 7, Plan 1161 |
School District #92 | Lot 4 Block 7, Plan 1161 | |
School District #92 | Lot 4 Block 7, Plan 1161 | |
School District #92 | Lot 5 Block 7, Plan 1161 | |
School District #92 | Lot 5 Block 7, Plan 1161 | |
Arnold Angus | 6710066101 | Lot 7 Block 7, Plan 1161 |
New Hall Complex | Lot 1 Block 8, Plan 1161 | |
New Hall Complex | Lot 2 Block 8, Plan 1161 | |
G.V.G. | Lot 3 Block 8, Plan 1161 | |
Rita Barton/Doolan | 6710069001 | Lot 2 Block 9, Plan 1161 |
Ramona Smythe Hotel | Lot 4 Block 9, Plan 1161 | |
Teddy Venn Sr. | 6710041501 | Lot 3 Block 10, Plan 1161 |
Gene Alexander | 6710049301 | Lot 3 Block 11, Plan 1161 |
Gerald Doolan | 6710038501 | Lot 6 Block 11, Plan 1161 |
G.V.G./Band Owned | Lot 7 Block 11, Plan 1161 | |
NVHB Health Centre | Lot 1 Block 12, Plan 1161 | |
Nurse's Residence | Lot 1 Block 12, Plan 1161 | |
G.V.G./Rental | Lot 3 Block 13, Plan 1161 | |
Education Department | Lot 3 Block 13, Plan 1161 | |
Gingolx Village Government | Lot 4 Block 13, Plan 1161 | |
Andrew Morrison | 6710025701 | Lot 6 Block 13, Plan 1161 |
SD 92/Teacherage | Lot 7 Block 13, Plan 1161 | |
School District #92 | Lot 10 Block 13, Plan 1161 | |
School District #92 | Lot 11 Block 13, Plan 1161 | |
School District #92 | Lot 12 Block 13, Plan 1161 | |
School District #92 | Lot 13 Block 13, Plan 1161 | |
Esther Aksidan | 6710000302 | Lot 14 Block 13, Plan 1161 |
Alvin Nelson | 6710036502 | Lot 15 Block 13, Plan 1161 |
Stuart Doolan | 6710031001 | Lot 3 Block 14, Plan 1161 |
Priscilla S/James Stevens | 6710089001/ 6710008802 | Lot 7 Block 14, Plan 1161 |
Steven Doolan Sr. | 6710025801 | Lot 9 Block 14, Plan 1161 |
G.V.G./Band Owned | Lot 2 Block 15, Plan 1161 | |
G.V.G./Band Owned | Lot 3 Block 15, Plan 1161 | |
Marietta Robinson | 6710024402 | Lot 5 Block 15, Plan 1161 |
G.V.G./Band Owned | Lot 2 Block 16, Plan 1161 | |
Roger Watts | 6710021301 | Lot 1 Block 17, Plan 1161 |
Alvin Smart | 6710062201 | Lot 2 Block 17, Plan 1161 |
G.V.G./Rental | Lot 3 Block 17, Plan 1161 | |
Chester Gurney | 6710027601 | Lot 4 Block 17, Plan 1161 |
New Church Army | Lot 5 Block 17, Plan 1161 | |
New Church Army | Lot 6 Block 17, Plan 1161 | |
Thomas Sheehan/CMHC | Lot 7 Block 17, Plan 1161 | |
R.C.M.P. Office | Lot 8 Block 17, Plan 1161 | |
Harry Moore Sr./CMHC | 6710027001 | Lot 9 Block 17, Plan 1161 |
Morrice Pond | 6710027001 | Lot 10 Block 17, Plan 1161 |
Mary Stanley | 6710069601 | Lot 11 Block 17, Plan 1161 |
Harold Barton Sr. | 6710015001 | Lot 12 Block 17, Plan 1161 |
Justina Barton/CMHC | 6710075001 | Lot 13 Block 17, Plan 1161 |
James Randy Stevens | 6710052201 | Lot 14 Block 17, Plan 1161 |
Kenny Moore | 6710098201 | Lot 15 Block 17, Plan 1161 |
Robin Stewart | 6710049701 | Lot 16 Block 17, Plan 1161 |
Vernon Stewart Sr. | 6710045801 | Lot 17 Block 17, Plan 1161 |
Peggy Venn/CMHC | 6710042501 | Lot 18 Block 17, Plan 1161 |
Raymond Stewart Sr. | 6710026601 | Lot 19 Block 17, Plan 1161 |
R. Bennett Clayton | 6710004101 | Lot 20 Block 17, Plan 1161 |
David Stewart Sr. | 6710078101 | Lot 21 Block 17, Plan 1161 |
Linda J. Venn | 6710051902 | Lot 22 Block 17, Plan 1161 |
G.V.G./Band Owned | Lot 23 Block 17, Plan 1161 | |
Albert Barton | 6710024001 | Lot 24 Block 17, Plan 1161 |
B.C. Tel Trailer | Lot 25 Block 17, Plan 1161 | |
Paul A. Stewart Sr. | 6710018901 | Lot 26 Block 17, Plan 1161 |
George Nelson Sr. | 6710022901 | Lot 27 Block 17, Plan 1161 |
Emily Louise Dangel | 6710078801 | Lot 28 Block 17, Plan 1161 |
Nora Doolan/CMHC | 6710078601 | Lot 29 Block 17, Plan 1161 |
Not Safe* | Lot 30 Block 17, Plan 1161 | |
Arthur J. Nelson | 6710023001 | Lot 31 Block 17, Plan 1161 |
Kazaan Smythe Sr. | 6710057401 | Lot 32 Block 17, Plan 1161 |
Reynold Venn | 6710064601 | Lot 33 Block 17, Plan 1161 |
G.V.G./Rental | Lot 34 Block 17, Plan 1161 | |
Yvonne Barton | 6710056101 | Lot 35 Block 17, Plan 1161 |
Troy Stewart | 6710101301 | Lot 36 Block 17, Plan 1161 |
Willard Lincoln Jr. | 6710091501 | Lot 37 Block 17, Plan 1161 |
G.V.G./Band Owned | Lot 38 Block 17, Plan 1161 | |
Lot 39 Block 17, Plan 1161 | ||
G.V.G./Rental | Lot 40 Block 17, Plan 1161 | |
Macdonald C. Stanley | 6710099001 | Lot 41 Block 17, Plan 1161 |
William Smythe | 6710072701 | Lot 42 Block 17, Plan 1161 |
MacDonald Trimble | 6710030901 | Lot 43 Block 17, Plan 1161 |
Steven Doolan Jr. | 6710082501 | Lot 44 Block 17, Plan 1161 |
Peter Stevens Jr. | 6710057801 | Lot 45 Block 17, Plan 1161 |
Barry Smythe | 6710061101 | Lot 46 Block 17, Plan 1161 |
Neil Okabe | 6810017501 | Band owned trailer unit |
Richard Lincoln/ D. Maitland | 6710035901 | Band owned trailer unit |
Raymond Stewart Jr. | 6710090501 | Band owned trailer unit |
Myra Barton/Terrance | 6710119201 | Band owned trailer unit |
Neal Barton/Shanna Nelson | 6710111301 | Band owned trailer unit |
Zelda Komurcu | 6710121001 | Band owned trailer unit |
Floyd/Michell Stevens | 6710109301 | Band owned trailer unit |
Priscilla Gurney/ Shawn Barton | 6710102601 | Band owned trailer unit |
Jason Stewart/ Charlene Derrict | 6710128401 | Band owned trailer unit |
Claude Barton Sr. | 6710073801 | Band owned trailer unit |
Darrel/Collette Angus | 6710098701 | Lot 1 Block 18, Plan 1161 |
Lot 2 Block 18, Plan 1161 | ||
Lot 3 Block 18, Plan 1161 | ||
Peter Stevens Sr. | 6710020501 | Lot 4 Block 18, Plan 1161 |
Randy/Julia Stevens | 6710052201 | Lot 5 Block 18, Plan 1161 |
Richard/Wilma Oshea | 6710029201 | Lot 6 Block 18, Plan 1161 |
Lot 7 Block 18, Plan 1161 | ||
Lot 8 Block 18, Plan 1161 | ||
Lot 9 Block 18, Plan 1161 | ||
Lot 10 Block 18, Plan 1161 | ||
Lot 11 Block 18, Plan 1161 | ||
Russell/Margo Calder | 6710135401 | Lot 12 Block 18, Plan 1161 |
Lot 13 Block 18, Plan 1161 | ||
Lisa/Perry Stevens | 6710071301 | Lots 14/15 Block 18(Unit1) |
April Nelson | 6710109101 | Lots 14/15 Block 18(Unit 2) |
Sally Stephens/Perry Terrel | 6710141301 | Lots 14/15 Block 18(Unit 3) |
Calvin/Cindy Barton | 6710047001 | Lots 14/15 Block 18(Unit 4) |
Marylee Stevens | 6710103301 | Lots 14/15 Block 18(Unit 5) |
Raymond Moore | 6710047201 | Lots 14/15 Block 18(Unit 6) |
Hope Grace Allen | 6710084901 | Lot 16 Block 18, Plan 1161 |
Susan Trimble | 6710030902 | Lot 17 Block 18, Plan 1161 |
Neal/Shanna Barton | 6710111301 | Lot 18 Block 18, Plan 1161 |
Alvin/Gwen Nelson | 6710036501 | Lot 19 Block 18, Plan 1161 |
Lot 20 Block 18, Plan 1161 | ||
Evan Henry/Alaura Doolan | 6710049001 | Lot 21 Block 18, Plan 1161 |
Neil/Emily Smythe | 6710065701 | Lot 22 Block 18, Plan 1161 |
Fraser/Melanie Doolan | 6710102901 | Lot 23 Block 18, Plan 1161 |
Lot 24 Block 18, Plan 1161 | ||
Claude/Tanya Barton | 6710073801 | Lot 25 Block 18, Plan 1161 |
Kirby/Colette Stephens | 6710102801 | Lot 26 Block 18, Plan 1161 |
Rudolph/Alberta Watts | 6710050501 | Lot 27 Block 18, Plan 1161 |
Village of Gitlakdamix | ||
Roderick Robinson Marjorie Robinson | 6770011701 6770011702 | 321, CLSR Plan 73712 |
Reginald Percival Mary Percival | 6770042601 6770042602 | 320, CLSR Plan 73712 |
Brian Tait Faith Tait | 6770039901 6770047301 | 319, CLSR Plan 73712 |
Laura Welde | 6770077601 | 318, CLSR Plan 73712 |
Eric Clayton Eva Clayton | 6770065301 6770044101 | 317, CLSR Plan 73712 |
Marjorie Bright | 677001402 | 316, CLSR Plan 73712 |
Frank Tait Gail Tait | 6770055301 6770071201 | 315, CLSR Plan 73712 |
Lorene Plante | 6770074901 | 314, CLSR Plan 73712 |
Veronica Eli | 6770056101 | 313, CLSR Plan 73712 |
Frank Gosnell Kate Gosnell | 6770068501 6770072301 | 312, CLSR Plan 73712 |
Bertram Gonu Leona Gonu | 6770045401 6770061801 | 279, CLSR Plan 70837 |
Sybil Nisyok | 6770053602 | 278, CLSR Plan 70837 |
Hubert Doolan Evangeline Doolan | 6770035401 6770035402 | 277, CLSR Plan 70837 |
Theodore Gosnell Lisa Gosnell | 6770058601 6770071301 | 276, CLSR Plan 70837 |
Bruce Adams Esther Adams | 6770042301 6770042302 | 275, CLSR Plan 70837 |
Donald Adams Patricia Adams | 6770014001 6770014002 | 274, CLSR Plan 70837 |
Georgina Harris | 6770080801 | 273, CLSR Plan 70837 |
Floyd Davis Anita Davis | 6770035901 6770035902 | 272, CLSR Plan 70837 |
Vernon Eli Sheila Eli | 6770036301 6770036302 | 271, CLSR Plan 70837 |
James Adams | 6770000701 | 270, CLSR Plan 70837 |
Russell Morven Monica Morven | 6770045501 6770059401 | 339, CLSR Plan 75000 |
William E. Tait | 6770010301 | 338, CLSR Plan 75000 |
Violet Guno | 6770004002 | 337, CLSR Plan 75000 |
Joseph Gosnell Adele Gosnell | 6770014801 6770014802 | 336, CLSR Plan 75000 |
Calvin Morven Charlene Morven | 6770037601 6770037602 | 335, CLSR Plan 75000 |
Allen Clayton Myrtle Clayton | 6770020501 6770020502 | 334, CLSR Plan 75000 |
Erma Gosnell | 6770110101 | 333, CLSR Plan 75000 |
Bertie T. Adams Elizabeth Adams | 6770015901 6770015902 | 332, CLSR Plan 75000 |
Ida Peal | 6770007502 | 330, CLSR Plan 75000 |
Dorothy Elliot | 6770062901 | 329, CLSR Plan 75000 |
Carl Johnson Greta Johnson | 6770034401 6770057801 | 328, CLSR Plan 75000 |
Alver Tait Lillian Tait | 6770071801 6770021902 | 327, CLSR Plan 75000 |
George Jr. McMillan Yvette McMillan | 6770052601 6770099701 | 326, CLSR Plan 75000 |
Thomas Clayton Donna Clayton | 6770022801 6770022802 | 325, CLSR Plan 75000 |
Earl Munroe Margo Munroe | 6770040201 6770040202 | 324, CLSR Plan 75000 |
Melvin Robinson Rosie Robinson | 6770019601 6770019602 | 280, CLSR Plan 70837 |
Richard Azak Angela Azak [Robinson] | 6770055401 6770076501 | 281, CLSR Plan 70837 |
Josephine Casey | 6770087101 | 282, CLSR Plan 70837 |
Louise Martian | 6770073001 | 283, CLSR Plan 70837 |
Patrick McMillan Phyllis McMillan | 6770006901 6770006902 | 284, CLSR Plan 70837 |
Edgar Guno Doreen Guno | 6770044601 6770044602 | 291, CLSR 70837 |
Reuben Gonu Charlotte Gonu | 6770054101 6770063201 | 264, CLSR Plan 70011 |
William Clayton Lynne Clayton | 6770047901 6770047902 | 265, CLSR Plan 70011 |
Christopher Clayton Sarah Clayton | 6770002001 6770002002 | 266, CLSR Plan 70011 |
Shirley Morven | 6770106901 | 267, CLSR Plan 70011 |
George Sr. McMillan Verna McMillan | 6770013301 | 259, CLSR Plan 70011 |
Leonard Moore Ferdillia Moore | 6770049201 6770029202 | 260, CLSR Plan 70011 |
Annie Morven | 6770005602 | 261, CLSR Plan 70011 |
Alvin Clayton | 6770053101 | 262, CLSR Plan 70011 |
Edward McMillan Teresa McMillan | 6770029201 6770029202 | 255, CLSR Plan 70011 |
Wayne Nisyok Gloria Nisyok | 6770038401 6770038402 | 254, CLSR Plan 70011 |
Cuthbert Munroe Edith Munroe | 6770026401 6770026402 | 253, CLSR Plan 70011 |
Keith Tait Marilyn Tait | 6770032501 6770032502 | 237, CLSR Plan 69298 |
Currie Gosnell Stacey Gosnell | 6770044701 6770075401 | 236, CLSR Plan 69298 |
Oscar Mercer | 6770010201 | 229, CLSR Plan 67309 |
Cecil Mercer | 6770021901 | 235, CLSR Plan 69298 |
Gerald Nisyok Teresa Louanne Johnson | 6770041001 6770054001 | 234, CLSR Plan 69298 |
Claude Morven Cora Morven | 6770024301 6770024302 | 233, CLSR Plan 69298 |
Dan Gonu Jr. | 6770093001 | 292, CLSR Plan 70837 |
Ruby Parenteau | 6770084601 | 293, CLSR Plan 70837 |
Frank Adams | 6770033401 | 294, CLSR Plan 70837 |
Elaine Barton | 6770056502 | 230, CLSR Plan 67309 |
Rebecca Adelaide Tait | 6770064501 | 221 |
Donald Haizimsque Jean Haizimsque | 6770023501 6770023502 | 298, CLSR Plan 70837 |
Gary Davis Colleen Davis | 6770029101 6770029102 | 299, CLSR Plan 70837 |
Isaac Guno Trudy Guno | 6770040601 6770040602 | 300, CLSR Plan 70837 |
Ben Sr. Gonu Barb Gonu | 6770023601 6770023602 | 301, CLSR Plan 70837 |
Ben Gosnell | 6770079101 | |
Felix Davis Elizabeth Davis | 6770002401 6770002402 | |
Keith Woods | 6770060901 | 32, CLSR Plan 55248 |
Lily Johnson | 6770101301 | 33, CLSR Plan 55248 |
Cecil Morven Josephine Morven | 6770006101 6770006102 | 34, CLSR Plan 55248 |
Alfred Jr. Johnson Donna Johnson | 6770061101 6770059801 | 35, CLSR Plan 55248 |
Floyd Percival Mildred Percival | 6770038501 6770038502 | 36, CLSR Plan 55248 |
Reynold Davis | 6770002801 | 37, CLSR Plan 55248 |
Valerie Davis | 6770084201 | 38, CLSR Plan 55248 |
Clifford Jr. Percival Christina Percival | 6770091901 6770082401 | 39, CLSR Plan 55248 |
Sharlene Lacroix | 6770097501 | 171, CLSR Plan 63206 |
Emily Mercer | 6770005002 | 1 - 1, CLSR Plan 70837 |
Dan Gonu Sr. | 6770019501 | 1 -2, CLSR Plan 70837 |
Peter Clayton Roberta Clayton | 6770011901 6770011902 | 311, CLSR Plan 70837 |
Howard Grandison Mary Grandison | 6770048101 6770048102 | 3, CLSR Plan 55248 |
Lonny Stewart Maryann Adams | 6770064701 6770089601 | 4, CLSR Plan 55248 |
Sarah Haizimsque | 6770004502 | 5, CLSR Plan 55248 |
Pauline Johnson | 6770028001 | 6, CLSR Plan 55248 |
Sidney Eli Rena Eli | 6770003201 6770003202 | 11, CLSR Plan 55248 |
Ron & Lorna Davis | 6770026701 & 6770026702 | 12, CLSR Plan 55248 |
Chester Haizimsque Elizabeth Haizimsque | 6770020201 6770020202 | 13, CLSR Plan 55248 |
Edith Guno | 6770003702 | 10, CLSR Plan 55248 |
Emily Guno | 6770004102 | 9, CLSR Plan 55248 |
Joseph Grandiosn Pauline Grandison | 6770003401 6770003402 | 8, CLSR Plan 55248 |
Freda Morven | 6770005802 | 7, CLSR Plan 55248 |
Roy Adams Selina Adams | 6770011001 6770011002 | 18, CLSR Plan 55248 |
Phillip Azak Cecilia Azak | 6770034601 6770034602 | 17, CLSR Plan 55248 |
Gustave Raymond Guno | 6770023301 | 15, CLSR Plan 55248 |
Hubert McMillan | 6770006801 | 23, CLSR Plan 55248 |
Samuel Nisyok Florence Nisyok | 6770021001 6770021002 | 20, CLSR Plan 55248 |
Samuel McMillan Sarah McMillan | 6770012101 6770012102 | 19 -7, CLSR Plan 68282 |
Mary McMillan | 6770007002 | 27, CLSR Plan 55248 |
B. Daniel Nisyok | 6770010501 | 26, CLSR Plan 55248 |
Oliver Woods | 6770009401 | 25, CLSR Plan 55248 |
Gordon McKay | 6770022201 | 204, CLSR Plan 63206 |
Leanne Wright | 6770088601 | 203, CLSR Plan 63206 |
Wilfred Adams Amelia Adams | 6770013701 6770013702 | 170, CLSR Plan 63206 |
Sidney Clayton | 6770055201 | 169, CLSR Plan 63206 |
Irvine Tait Vivian Tait | 6770038701 6770038702 | 310, CLSR Plan 70837 |
Ivan Gonu Wanda Gonu | 6770027501 6770027502 | 306, CLSR Plan 70837 |
Russell Gonu June Gonu | 6770030601 6770030602 | 225, CLSR Plan 67309 |
Ronald Peal | 6770025301 | 226, CLSR Plan 67309 |
Keith Clayton Jean Clayton | 6770040101 6770040102 | 228, CLSR Plan 67309 |
James Douglas Clayton Cecelia Edna Clayton | 6770015201 6770015202 | 172, CLSR Plan 63206 |
Stephen Derrick Mavis Derrick | 6770024501 6770024502 | 173, CLSR Plan 63206 |
Jacob Davis Phoebe Davis | 6770002702 6770002702 | 174, CLSR Plan 63206 |
Harold Wright | 6770044301 | 176, CLSR Plan 63206 |
Elizabeth Wright | 6770044302 | |
Perry Clayton Kathleen Clayton | 6770028801 6770028802 | 177, CLSR Plan 63206 |
Pauline Robinson | 6770007802 | 178, CLSR Plan 63206 |
James Wright | 6770086301 | 179, CLSR Plan 63206 |
Ivy Woods | 6770009002 | 180, CLSR Plan 63206 |
Moses Johnson Fran Johnson | 6770040701 6770040702 | 243, CLSR Plan 69298 |
Steven Eli Denise Eli | 6770051201 6770051202 | 242, CLSR Plan 69298 |
Gerald Clayton Roberta Clayton | 6770064301 6770064302 | 241, CLSR Plan 69298 |
Matthew Steven Clayton | 6770035301 | 240, CLSR Plan 69298 |
Arthur Johnson Hope Johnson | 6770025001 6770025002 | 239, CLSR Plan 69298 |
Robert Blackwater Bessie Blackwater | 6770055101 6770055102 | 238, CLSR Plan 69298 |
Gary Tait Marlene Tait | 6770029601 6770029602 | 251, CLSR Plan 69298 |
Daphne Robinson | 6770060101 | 250, CLSR Plan 69298 |
Victor Robinson Hilda Robinson | 6770038601 6770038602 | 249, CLSR Plan 69298 |
Trevor Stewart Yvonne Stewart | 6770061001 6770061002 | 248, CLSR Plan 69298 |
Annette Peal (George Peal Jr.) | 6770106301 | 245, CLSR Plan 69298 |
Edna Tait | 6770044901 | 244, CLSR Plan 69298 |
Herbert Morven Nita Morven | 6770021201 6770021202 | 142, CLSR Plan 63206 |
Samuel Munroe Kathy Munroe | 6770020901 6770020902 | 141, CLSR Plan 63206 |
Christine Gosnell | 6770013502 | 140, CLSR Plan 63206 |
Henry Wright | 6770020801 | 139, CLSR Plan 63206 |
Max Wright Elizabeth Wright | 6770015801 6770015802 | 138, CLSR Plan 63206 |
Myrna Wright | 6770108901 | 137, CLSR Plan 63206 |
Ethel Munroe | 6770006401 | 130, CLSR Plan 63206 |
George Gosnell | 6770076901 | 128, CLSR Plan 63206 |
Edmond Wright Millicent Wright | 6770024601 6770024602 | 129, CLSR Plan 63206 |
Jackie Adams | 6770073501 | 136, CLSR Plan 63206 |
Kelly McMillan Melinda McMillan | 6770018201 6770018202 | 131, CLSR Plan 63206 |
Margaret Woods | 6770061701 | 132, CLSR Plan 63206 |
Percy Tait Doris Tait | 6770008701 6770008702 | 133, CLSR Plan 63206 |
Clifford Sr. Percival Lilac Percival | 6770022401 6770022402 | 134, CLSR Plan 63206 |
Fred Grandison Sharlene Grandison | 6770051301 6770051302 | 135, CLSR Plan 63206 |
Phillip Azak Cecilia Azak | 6770034601 6770034602 | 342, (Item 1996 10 148) |
Glen Nisyok Andrea Nisyok | 6770051901 6770051902 | 343, (Item 1996 10 148) |
Band House | 344, (Item 1996 10 148) | |
Tania Percival | 6770099901 | 345, (Item 1996 10 148) |
Ralph Robinson | 677 | 346, (Item 1996 10 148) |
Kimberly Munroe [Thompson] | 6770087301 | 347, (Item 1996 10 148) |
Debra Stewart (Clayton) | 6770099801 | 348, (Item 1996 10 148) |
Gerald Robinson Dena Robinson | 6770041201 6770041202 | 350, (Item 1996 10 148) |
Terrance Morven Sharlene Morven | 6770032001 6770032002 | 349, (Item 1996 10 148) |
Lauren Peter Adams Sheila McKay | 6770072001 6770071901 | 351, (Item 1996 10 148) |
Fred Clayton Georgia Clayton | 6770063101 6770063102 | 352, (Item 1996 10 148) |
Samuel McMillan Sarah McMillan | 6770012101 6770012102 | 353, (Item 1996 10 148) |
Robert Eli Claudine Eli | 6770088301 6770107001 | 354, (Item 1996 10 148) |
Bernice Grandison | 6770064201 | 355, (Item 1996 10 148) |
Godfrey Adams Mildred Adams | 6770000501 6770000502 | 356, (Item 1996 10 148) |
Hugh Woods Geraldine Woods | 6770039501 6770039502 | 357, (Item 1996 10 148) |
James Nicholas Tait Linda Morven | 6770051401 6770058001 | 359, (Item 1996 10 148) |
Bert Mercer | 6770052401 | 363, (No CLSR plan) |
Simon Guno Patricia Guno | 6770069701 6770106601 | 364, (No CLSR plan) |
Lyle E. Adams | 6770081601 | 365, (No CLSR plan) |
Daniel Gonu Lisa Gonu | 6770093001 6770083201 | 366, (No CLSR plan) |
Patrick Clayton Sharlene Lacroix | 6770063701 6770097501 | 367, (No CLSR plan) |
Joyce Bright | 677 | 368, (No CLSR plan) |
Walter Nisyok Renee Nisyok | 6770082501 6770109001 | 375, (No CLSR plan) |
Marianne Mitchell | 6770080001 | 376, (No CLSR plan) |
Frank Clayton | 6770026501 | 377, (No CLSR plan) |
Brad Percival Angela Percival | 6770060301 677 | 378, (No CLSR plan) |
Charlene Ousey | 677 | 379, (No CLSR plan) |
Vincent Johnson Cheryl Johnson | 6770037201 6770037202 | 380, (No CLSR plan) |
Frances Morven | 6770017001 | 382, (No CLSR plan) |
Charles Morven | 6770026301 | 383, (No CLSR plan) |
Alfred Sr. Johnson Dorothy Johnson | 6770014701 6770014702 | 386, (No CLSR plan) |
Winnie Morven | 6770041401 | 391, (No CLSR plan) |
Dan Gonu | 6770019501 | 392, (No CLSR plan) |
Loretta Pelletier | 6770081001 | |
Village of Laxgalts'ap | ||
Kenny L. Robinson | 6780042701 | Lot 1 Block 1 |
John D. Robinson | 6780015701 | Lot 2 Block 1 |
Roy L. McKay | 6780028501 | Lot 3 Block 1 |
Stephen A. Moore | 6780032301 | Lot 4 Block 1 |
Mary A Moore | 6780018102 | Lot 5 Block 1 |
Leon P. Stephens | 6780090201 | Lot 6 Block 1 |
Matt Wright | 6780118701 | Lot 7 Block 1 |
Gus Sampare | 6780023101 | Lot 8 Block 1 |
Lorne Campbell | 6780023301 | Lot 9 Block 1 |
LVG Triplex | Lot 1 Block 2 | |
Fred Stephens | 6780023001 | Lot 2 Block 2 |
Charlie W. Stephens | 6780033301 | Lot 3 Block 2 |
Alvin A. McKay | 6780011901 | Lot 4 Block 2 |
Rhonda V. Leeson | 6780027502 | Lot 5 Block 2 |
Charles I. Leeson | 6780048901 | Lot 6 Block 2 |
Philip J. Stephens | 6780033401 | Lot 7 Block 2 |
Melvin C. Stevens | 6780036001 | Lot 8 Block 2 |
Bruce K. Stephens | 6780033201 | Lot 9 Block 2 |
Horace E. Stevens | 6780085601 | Lot 10 Block 2 |
Vacant | Lot 11 Block 2 | |
Sylvia J. Stephens | 6780108201 | Lot 1 Block 4 |
Vacant | Lot 2 Block 4 | |
Lorne T. McKay | 6780032501 | Lot 3 Block 4 |
Irene P. McKay | 6780014502 | Lot 4 Block 4 |
Alexander E. Stephens | 6780009001 | Lot 5 Block 4 |
Wallace Clark | 6780036801 | Lot 6 Block 4 |
Flora J. Bright | 6780031101 | Lot 7 Block 4 |
Milton E. Clark | 6780002201 | Lot 8 Block 4 |
Bradley W. Moore | 6780045001 | Lot 9 Block 4 |
Lorne A. Ryan | 6780089801 | Lot 10 Block 4 |
Mayne K. Stephens | 6780047201 | Lot 11 Block 4 |
Clarence B. Stephens | 6780015101 | Lot 12 Block 4 |
Henry M. Moore | 6780024601 | Lot 13 Block 4 |
Barry F. Stevens | 6780033601 | Lot 14 Block 4 |
John W. Tait | 6780045901 | Lot 15 Block 4 |
Lawrence R. Stephens | 6780044101 | Lot 16 Block 4 |
Earl D. Stephens | 6780040901 | Lot 17 Block 4 |
Rosalee J. Vickers | 6780049302 | Lot 18 Block 4 |
Fred V. Moore | 6780030401 | Lot 1 Block 5 |
LVG Duplex | Lot 2 Block 5 | |
Elsie G. Martin | 6780067701 | Lot 3 Block 5 |
Irene Robertson | 6780091501 | Lot 4 Block 5 |
Moses G. McKay | 6780021301 | Lot 5 Block 5 |
Jacob V. McKay | 6780016801 | Lot 6 Block 5 |
Joseph Tait | 6780015001 | Lot 7 Block 5 |
Dianna A. Rai | 6780094701 | Lot 8 Block 5 |
Ivan J. Moore | 6780014301 | Lot 9 Block 5 |
Raymond I. Calder | 6780009801 | Lot 1 Block 6 |
Gary B. Stephens | 6780023901 | Lot 2 Block 6 |
LVG Rental | Lot 3 Block 6 | |
Donald V. Leeson | 6780034501 | Lot 4 Block 6 |
Alan M. McKay | 6780032401 | Lot 5 Block 6 |
LVG Rental | Lot 6 Block 6 | |
Vacant | Lot 7 Block 6 | |
Easement | Lot 8 Block 6 | |
Delmer F. Clark | 6780054101 | Lot 9 Block 6 |
LVG Duplex | Lot 10 Block 6 | |
LVG Rental Unit | Lot 11 Block 6 | |
Percy M. Stephens | 6780030901 | Lot 12 Block 6 |
Vacant | Lot 13 Block 6 | |
Terry Stevens | 6780009901 | Lot 14 Block 6 |
Laxgalts'ap Elementary School | Lot 1 Block 7 | |
Vacant | Lot 2 Block 7 | |
Arnold J. Stewart | 6780055801 | Lot 3 Block 7 |
Rodney I. Davis | 6780051701 | Lot 4 Block 7 |
Lyle M. Stevens | 6780040601 | Lot 5 Block 7 |
Morris R. Watts | 6780033901 | Lot 6 Block 7 |
Vacant | Lot 7 Block 7 | |
BC Tel Trailer | Lot 8 Block 7 | |
Rennie M. Tait | 6780042501 | Lot 9 Block 7 |
Marcus N. Bright | 6780022901 | Lot 10 Block 7 |
Perry H. Robinson | 6780088401 | Lot 11 Block 7 |
Larry H. Martin | 6780024901 | Lot 12 Block 7 |
Erwin L. Alexander | 6780087501 | Lot 13 Block 7 |
Louis B. McKay | 6780038901 | Lot 14 Block 7 |
Colin A. Moore | 6780042401 | Lot 15 Block 7 |
Leonard F.J. Robinson | 6780014201 | Lot 16 Block 7 |
Nurse's Trailer | Lot 17 Block 7 | |
Thomas T. Tait | 6780056301 | Lot 18 Block 7 |
Vacant | Lot 19 Block 7 | |
Norman A. Stephens | 6780035901 | Lot 20 Block 7 |
Reginald E. Sampare | 6780094501 | Lot 21 Block 7 |
Alan F. Moore | 6780020301 | Lot 22 Block 7 |
Christine McKay | 6780006502 | Lot 23 Block 7 |
Clarence C. Robinson | 6780020201 | Lot 24 Block 7 |
Frederick W. Tait | 6780040301 | Lot 1 Block 8 |
Alfred A. Robinson | 6780007101 | Lot 2 Block 8 |
Duane S. McKay | 6780066701 | Lot 3 Block 8 |
Arthur G. Moore | 6780011601 | Lot 4/12 Block 8 |
Herbert Calder | 6780001801 | Lot 5/11 Block 8 |
James McNeil | 6780035101 | Lot 6/10 Block 8 |
Wilfred Tait | 6780011701 | Lot 7 Block 8 |
Alex A. Angus | 6780015601 | Lot 8 Block 8 |
Charlie J. Swanson | 6780012801 | Lot 9 Block 8 |
St. Andrew's Church | Lot 1 Block 9 | |
Charles J. Moore | 6780025501 | Lot 2 Block 9 |
Katherine Stephens | 6780008802 | Lot 3 Block 9 |
Marina J. McKay | 6780025802 | Lot 4 Block 9 |
Glen C. Robinson | 6780025001 | Lot 5 Block 9 |
Bertram McKay | 6780005301 | Lot 6 Block 9 |
Horace M. Stephens | 6780038201 | Lot 7 Block 9 |
William A. Moore | 6789925201 | Lot 8 Block 9 |
Charles E. Davis | 6780036301 | Lot 9 Block 9 |
Irma Innes | 6780048202 | Lot 10 Block 9 |
Kenneth R. Davis | 6780039701 | Lot 11 Block 9 |
Vacant | Lot 12 Block 9 | |
Charlie S. Watts | 6780033801 | Lot 13 Block 9 |
Village of Laxgalts'ap – North Road Cresent Subdivision | ||
Victoria B. Stevens | 6780060401 | Lot 1 |
Brenda A. Morrison | 6780079301 | Lot 2 |
Matthew H. Moore | 6780035401 | Lot 3 |
Reynard H. Moore | 6780022601 | Lot 4 |
Hector Gurney | 6780015801 | Lot 5 |
Kevin H. McKay | 6780039401 | Lot 6 |
Noreen K. Cross | 6780040201 | Lot 7 |
Abraham Davis | 6780002501 | Lot 8 |
Albert L. Stephens | 6780008401 | Lot 9 |
Nurse's Residence | Lot 10 | |
Roderick Maxwell | 6780011001 | Lot 11 |
Matthew C. Bright | 6780022601 | Lot 12 |
Craig G. McKay | 6780051601 | Lot 13 |
Mario O. Stevens | 6780054401 | Lot 14 |
Marvin C. Stephens | 6780039601 | Lot 15 |
Village of Laxgalts'ap – Cottonwood Court Subdivision | ||
Marie A. Watts | 6780094201 | Lot 16 |
Willard A. Martin | 6780017301 | Lot 17 |
Karon L. McKay | 6780031201 | Lot 18 |
Peter Leeson | 6780041901 | Lot 19 |
Harry M. Stephens | 6780050101 | Lot 20 |
Currie W. Gurney | 6780037901 | Lot 21 |
James W.R. Lincoln | 6780091301 | Lot 22 |
Oscar H. Clayton | 6780088601 | Lot 23 |
Village of Laxgalts'ap – Highway Drive Subdivision | ||
Lois G.D. McKay | 6780041501 | Lot 24 |
Cheryl J. Sampare | 6780062701 | Lot 25 |
Village of Laxgalts'ap – Spruce Drive Subdivision | ||
LVG Daycare | Lot 26 | |
Tony C. Stevens | 6780054701 | Lot 27 |
Ira A. McKay | 6780051101 | Lot 28 |
Barbara L. Davis | 6780034102 | Lot 29 |
Brenda E. Stevens | 6780037102 | Lot 30 |
Viola C. Robinson | 6780031301 | Lot 31 |
Martin J. Robinson | 6780066901 | Lot 32 |
Albert M. Stephens | 6780066901 | Lot 33 |
Sherry E. Small | 6780046201 | Lot 34 |
Vernon Gurney | 6780053101 | Lot 35 |
Vincent Robinson | 6780065501 | Lot 36 |
Andrew S. McKay | 6780057901 | Lot 37 |
Darren C. McNeil | 6780073101 | Lot 38 |
Delores M. McKay | 6780099201 | Lot 39 |
Charlotte P. Haizimsque | 6780094401 | Lot 40 |
Village of Laxgalts'ap – Willow Place Subdivision | ||
Magnus C. Stevens | 6780027301 | Lot 41 |
Hester R. McKay | 6780016102 | Lot 42 |
Barbara M. Edgar | 6780093701 | Lot 43 |
Annette B. Clayton | 6780096601 | Lot 44 |
Alfred S. Stewart | 6780059001 | Lot 45 |
Village of Laxgalts'ap – Spruce Drive Subdivision | ||
Christine E. Collison | 6780045601 | Lot 46 |
Valerie J. Evans | 6780051401 | Lot 47 |
Hubert W. Haldane | 6780023201 | Lot 48 |
Village of Laxgalts'ap – Multi-family rental units | ||
Perry T. Robinson | 6780118501 | 402 A |
Reynold R. Maxwell | 6780039301 | 402 B |
Keith J. Gurney | 6780098901 | 402 C |
Dawna L. Watts | 6780092701 | 403 A |
Rodney I. Davis | 6780051701 | 403 B |
Louisa A. Gray | 6780025701 | 403 C |
Mary A. Moore | 6780018102 | 404 A |
Ella P. Stevens | 6780088201 | 404 B |
Robert S. Tait | 6780047901 | 405 A |
Mark A. Davis | 6780031901 | 405 B |
Kirk A. Ritchie | 6780102801 | 405 C |
Timothy Derrick | 6780003201 | 406 A |
Charlotte Angus | 6780114101 | 406 B |
Cora E. Aksidan | 6780000102 | 406 C |
Tenants of LVG Rental and Multi-Family Units are subject to change as permanent housing is obtained. |
Appendix C-7
ANGLING GUIDE LICENCES, TRAPLINE LICENCES
AND GUIDE OUTFITTER LICENCE WHOLLY OR
PARTIALLY ON NISG̱A'A LANDS
Waters | Licence No. |
Dragon Lake | 203793 203794 202438 |
Ginlulak Creek | 203796 203815 |
Iknouk River | 203811 |
Ishkheenickh River | 206180 203811 203791 203793 203751 203800 202468 203772 203796 203753 202494 202438 |
Kincolith River | 206180 203811 203791 |
Nass River | 203758 206180 202471 203791 203783 203803 202426 202427 203800 203752 203756 202428 202446 203805 202494 |
Tchitin River | 203815 |
Tseax River | 202471 203791 203793 203783 203751 202426 202427 203752 203756 203796 202428 202461 203807 202438 203815 |
Zolzap Creek | 203815 |
Traplines | |||
614T 007 | 614T 062 | 614T 071 | 615T 024 |
614T 008 | 614T 063 | 614T 072 | 615T 025 |
614T 011 | 614T 064 | 614T 073 | 615T 027 |
614T012 | 614T 065 | 614T 074 | 615T 044 |
614T 013 | 614T 066 | 614T 075 | 616T 001 |
614T 014 | 614T 067 | 614T 076 | 616T 002 |
614T 015 | 614T 068 | 614T 077 | 616T 003 |
614T 060 | 614T 069 | 614T 104 | 616T004 |
614T 061 | 614T 070 | 615T 023 | 616T 005 |
616T 015 |
Guide Outfitter Licence |
610G 001 |
Contents | Sections 1-70 | Schedule - Table of Contents | Preamble | Chapter 1 | Chapter 2 | Chapter 3 | Chapter 4 | Chapter 5 | Chapter 6 | Chapter 7 | Chapter 8 | Chapter 9 | Chapter 10 | Chapter 11 | Chapter 12 | Chapter 13 | Chapter 14 | Chapter 15 | Chapter 16 | Chapter 17 | Chapter 18 | Chapter 19 | Chapter 20 | Chapter 21 | Chapter 22 | Schedule - Map of Nisg̱a'a Lands | Appendix - Contents | Appendix - Introduction | Appendix A | Appendix B | Appendix C | Appendix D | Appendix E | Appendix F | Appendix G | Appendix H | Appendix I | Appendix J | Appendix K | Appendix L | Appendix M
Copyright © King's Printer, Victoria, British Columbia, Canada