Table of Contents

APPENDIX F —
TSAWWASSEN WATER LOTS

APPENDIX F-1   Map of Tsawwassen Water Lots
APPENDIX F-2 Form of Water Lot Lease

APPENDIX F-1
Map of Tsawwassen Water Lots

Appendix F-1: Tsawwassen Water Lots

APPENDIX F-2
Water Lot Lease

LEASE
Lease No.: File No.:      
Disposition No.:      

THIS AGREEMENT is dated for reference _______________ and is made under the Land Act, R.S.B.C. 1996 Chapter 245

BETWEEN:

     HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA,
     represented by the minister responsible for the Land Act Parliament Buildings, Victoria, British Columbia

     (the "Province")

AND:

     TSAWWASSEN FIRST NATION

     (the "Lessee")

WHEREAS:
Tsawwassen First Nation, Canada and British Columbia have entered into a treaty, referred to as the "Tsawwassen First Nation Final Agreement", which provides that, on its effective date, British Columbia will enter into this Tsawwassen Water Lot Lease,

The parties agree as follows:

ARTICLE 1

1.0 INTERPRETATION

1.1 In this Agreement, the following words and phrases have the following meanings:

"Commencement Date" means the effective date of the Tsawwassen First Nation Final Agreement;

"Contaminant" means any dangerous, hazardous, or toxic substance the storage, manufacture, handling, disposal, treatment, use or remediation of which is from time to time prohibited, regulated or controlled under any Federal or Provincial laws relating to the protection of the environment, health, occupational health and safety or the protection of any form of plant or animal life;

"Improvements" includes anything made, constructed, erected, built, altered, repaired or added to, in, on or under the Land, and attached to it or intended to become a part of it, and also includes any clearing, excavating, digging, drilling, tunnelling, filling, grading or ditching of, in, on or under the Land by the Lessee;

"Land" means those lands identified as [insert legal description] by a survey accepted and confirmed under section 72 of the Land Act and deposited in the Crown Land Registry under number ______, a copy of which is attached as Schedule A;

"Nominal Annual Rent" means the sum of $1.00 for each year of the Term;

"Realty Taxes" means all taxes, rates, levies, duties, charges and assessments levied or charged, at any time, by any government authority having jurisdiction which relate to the Land, the Improvements or both of them and which you are liable to pay under applicable laws;

"Term" means the term of the leasehold interest created by this Agreement and includes the initial term and all renewal terms as set out in section 2.2;

"Tsawwassen Public Institution" has the same meaning as Tsawwassen Public Institution in the Tsawwassen First Nation Final Agreement;

"we", "us" or "our" refers to the Province alone and never refers to the combination of the Province and the Lessee: that combination is referred to as "the parties"; and

"you" or "your" refers to the Lessee.

1.2 For the purposes of this Agreement, except as otherwise expressly provided:

(a) "this Agreement" means this agreement, including the Schedules, as they may from time to time be supplemented or amended and in effect;

(b) wherever the singular or masculine form is used in this Agreement it will be construed as the plural or feminine or neuter form, as the case may be, and vice versa where the context or parties require;

(c) the captions and headings contained in this Agreement are for convenience only and do not define or in any way limit the scope or intent of this Agreement;

(d) where there is a reference to an enactment of the Province of British Columbia or of Canada, that reference will include a reference to every amendment to it, every regulation made under it and any subsequent enactment of like effect and, unless otherwise indicated, all enactments referred to in this Agreement are enactments of the Province of British Columbia; and

(e) wherever this Agreement provides that an action may be taken, a consent or approval must be obtained or a determination must be made, then you or we, as the case may be, will act reasonably and without delay in taking such action, deciding whether to provide such consent or approval or making such determination.

1.3 The following schedules are annexed to and form a part of this Agreement: Schedule A (copy of survey describing Land).

ARTICLE 2

2.0 GRANT, TERM AND PERMITTED USE

2.1 On the terms and conditions set out in this Agreement, we grant you a lease of the Land for the permitted uses set out in subsection 2.5.

2.2 The term of this Agreement commences on the Commencement Date and terminates on the Ninety-ninth (99th) anniversary of that date (the "initial term").

2.3 You may at your option renew this Agreement for one or more additional 99-year periods (any one of which may be referred to as a "renewal term") in perpetuity.

2.4 You will be conclusively deemed to have exercised this right of renewal during the initial term and each successive renewal term unless you give us written notice to the contrary on or before the fifth (5th) year prior to the end of the initial term or any particular renewal term as the case may be. Any renewal includes the terms and conditions of this Agreement with the modifications that are necessary to reflect the commencement date of the extended term.

2.5 You may use and occupy the Land only for recreational and other community uses which are not carried out for a business or commercial purpose. For greater certainty and without limitation you may not use or occupy the Land to carry out an industrial, commercial or other activity for the purpose of generating revenues and profits.

ARTICLE 3

3.0 COVENANTS

3.1 You must:

(a) pay, to us at the address set out in Article 8, the Nominal Annual Rent, when due and other amounts that you are required to pay to us under this Agreement;

(b) pay, on or before the date due, the Realty Taxes and all charges for electricity, gas, water and other utilities supplied to the Land;

(c) deliver to us, immediately upon demand, receipts or other evidence of the payment of Realty Taxes and all other money required to be paid by you under this Agreement;

(d) observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any government authority having jurisdiction in any way affecting your use or occupation of the Land or Improvements;

(e) not commit any wilful or voluntary waste, spoil or destruction on the Land;

(f) on the expiry or earlier termination of this Agreement, or at any other time if requested by us, promptly at your own cost, remove from the Land any Contaminant, and remediate any contamination caused by a Contaminant, where the Contaminant has been brought onto, used at, or released from Land by you, any person to whom you have given permission to use the Land or any other person for whom you are in law responsible;

(g) not to do anything on the Land that may be or become a nuisance to an owner or occupier of land in the vicinity of the Land;

(h) pay all accounts and expenses as they become due for labour or services performed on, or materials supplied to, the Land except for money that you are required to hold back under the Builders Lien Act;

(i) if any claim of lien over the Land is made under the Builders Lien Act, immediately take all steps necessary to have the lien discharged, unless the claim of lien is being contested in good faith by you and you have taken the steps necessary to ensure that the claim of lien will not subject the Land or any interest of yours under this Agreement to sale or forfeiture;

(j) not without prior written consent from us deposit on the Land, or any part of it, any earth, fill or other material for the purpose of filling in or raising the level of the Land;

(k) not make, construct, erect, alter or remove (except as provided in subsection n)any Improvements unless you have first given us notice and obtained our written consent and without limitation we may, as a condition of consent, require you to provide us with plans and other reasonable details describing the Improvement alteration or removal;

(l) in accordance with applicable laws and after giving reasonable notice to you, permit us, or our authorized representatives, to enter on the Land at any time to inspect the Land and the Improvements, provided that in regard to our inspection of the Improvements we take reasonable steps to minimize any disruption to your operations;

(m) indemnify and save us and our servants, employees and agents harmless against all claims, actions, causes of action, losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:

(i) your breach, violation or non-performance of a provision of this Agreement, and

(ii) any personal injury, bodily injury (including death) or property damage occurring or happening on or off the Land by virtue of your entry upon, use or occupation of the Land,

and the amount of all such losses, damages, costs and liabilities will be payable to us immediately upon demand; and

(n) on the termination of this Agreement,

(i) peaceably quit and deliver to us possession of the Land and, subject to paragraphs (ii) and (iii), the Improvements in a safe, clean and sanitary condition,

(ii) within 120 days, remove from the Land any Improvement that was placed on or made to the Land by you, or anyone acting by or under your authority and is in the nature of a tenant's fixture,

(iii) remove from the Land any Improvement that we, in writing, direct or permit you to remove, and

(iv) restore the surface of the Land as nearly as may reasonably be possible to the same condition as it was on the Commencement Date, to our satisfaction, but if you are not directed or permitted to remove an Improvement under paragraph (iii), this paragraph will not apply to that part of the surface of the Land on which that Improvement is located,

and, except to the extent provided in any notice directing you to remove an Improvement, all of your right, interest and estate in any Improvement remaining on the Land will be absolutely forfeited to us.

3.2 You will not permit any person to do anything you are restricted from doing under this Article.

3.3 Subject to the limitations provided in this Agreement we will provide you with quiet enjoyment of the Land.

ARTICLE 4

4.0 LIMITATIONS

4.1 You agree with us that:

(a) we are under no obligation to provide access or services to the Land;

(b) this Agreement is subject to the exceptions and reservations of interests, rights, privileges and titles referred to in section 50 of the Land Act;

(c) without limitation to the preceding subsections, this Agreement and your use of the Lands are subject to and may be affected by:

(i) Exploratory Oil and Gas Permit 802 issued under the Petroleum Natural Gas Act,

(ii) Statutory Right of Way No. 0238 202 in favour of British Columbia Hydro and Power Authority, and

(iii) rights of navigation over the waters that lie above the Land;

(d) you will not commence or maintain proceedings under section 65 of the Land Act in respect of any lawful interference with your use of the Land under this Agreement that arises as a result of the exercise or operation of the interests, rights, privileges, titles and dispositions described in subsections (b) and (c);

(e) any interference with your use of the Land under this Agreement as a result of the exercise or operation of the interests, rights, privileges, titles and dispositions described in subsections (b) and (c) will not constitute a breach of our covenant of quiet enjoyment and you release and discharge us from all claims for loss or damage arising directly or indirectly out of any such interference;

(f) this Agreement creates a lease of the Land under the authority provided under the Land Act and does not constitute an approval, licence, authorization or permission under any other enactment and does not interfere with, influence, encroach upon or fetter the jurisdiction, processes or discretion of any minister, public official, agency or decision maker who may be entitled or required to make any other decision or take any other action in regard to your use of the Land;

(g) any interest you may have in the Improvements ceases to exist and becomes our property upon termination of this Agreement, except where an Improvement may be removed under paragraph 3.1 (n) (ii) or (iii) in which case any interest you may have in that Improvement ceases to exist and becomes our property if the Improvement is not removed from the Land within the time period set out in paragraph 3.1 (n) (ii) or the time period provided for in the direction or permission given under paragraph 3.1 (n) (iii) unless we have specified otherwise in the direction or permission given under paragraph 3.1 (n) (iii); and

(h) if, after the termination of this Agreement, we permit you to remain in possession of the Land and we accept money from you in respect of such possession, a tenancy from year to year will not be created by implication of law. In the absence of any written agreement to the contrary you will be deemed to be a monthly tenant only and to be subject to and bound by all of the provisions of this Agreement other than the Term.

ARTICLE 5

5.0 INSURANCE

5.1 You must

(a) without limiting your obligations or liabilities under this Agreement, at your expense, effect and keep in force during the Term:

(i) Comprehensive/Commercial General Liability insurance protecting us as an additional insured in an amount of not less than $___________ inclusive per occurrence insuring against liability for personal injury, bodily injury (including death) or property damage, and claims for liability assumed under contract, arising from all accidents or occurrences on the Land or the Improvements; and

(ii) Pollution Legal Liability insurance in an amount of not less than $____________ insuring against on-site clean up for new pollution conditions and third party claims for on-site or off-site property damage or bodily injury (including death);

(b) on the Commencement Date and immediately upon demand, deliver to us a completed "Province of British Columbia Certificate of Insurance" for all insurance required to be maintained by you under this Agreement;

(c) ensure that all insurance required to be maintained by you under this Agreement is

(i) placed with insurers licensed in British Columbia,

(ii) primary and does not require the sharing of any loss by any insurer that insures us, and

(iii) endorsed to provide us with 30 days' advance written notice of cancellation or material change; and

(d) deliver or cause to be delivered to us, upon demand, certified copies of all policies of insurance required to be maintained by you under this Agreement.

5.2 We may, from time to time, notify you to

(a) change the amount of insurance set out in subsection 5.1 (a); and

(b) provide and maintain another type or types of insurance in replacement of or in addition to the insurance previously required to be maintained by you under this Agreement;

and you will, within 60 days of receiving such notice, cause the amounts and types to be changed and deliver to us a completed "Province of British Columbia Certificate of Insurance" for all insurance then required to be maintained by you under this Agreement.

5.3 Despite subsections 5.1 (a) to (d) and section 5.2, your obligations under those sections are suspended for so long as we in our sole discretion accept your decision to self insure in respect of the matters covered by those sections. If we no longer accept your decision to self-insure we will provide notice to you of our decision and you must, within 30 days of such notice, obtain the insurance described in section 5.1 (a) or otherwise required by us under section 5.2.

ARTICLE 6

6.0 ASSIGNMENT AND SUBLEASES

6.1 The parties have entered into this Agreement to give effect to the agreement described in the Tsawwassen Final Agreement. It is the intent of the parties that this Agreement remain between the Province and the Lessee for the duration of the Term. Accordingly the parties agree that this Agreement and the leasehold interest in the Land created by this Agreement may only be assigned, mortgaged or otherwise transferred to a Tsawwassen Public Institution

6.2 We agree that you may grant subleases of the Land and you may permit others to use the land provided:

(a) the sublease or permission to use the Lands is reasonably required to allow the Land to be used in the manner provided in section 2.5;

(b) the sublease is in writing and subject to all of the terms and conditions of this Agreement;

(c) the sublease is to a corporation wholly owned and controlled by the Tsawwassen First Nation;

(d) you do not grant any sublease of the Lands unless you have first given us notice and obtained our prior written approval to any sublease and without limitation we may as a condition of approval require you to provide reasonable details with respect to the proposed sublease; and

(e) you provide us with a copy of any sublease promptly after it has been entered into and thereafter provide us with any additional documents or information relating to the sublease which we may request.

ARTICLE 7

7.0 TERMINATION AND DISPUTE RESOLUTION

7.1 If you fail to comply with any of your obligations under this Agreement (a "default"), and the default has not been cured within 60 days after we give written notice of the default to you, or within such longer period allowed by section 7.2, this Agreement will, at our option and with or without entry, terminate, and all your right interest or estate in the Land will be absolutely forfeited to us.

7.2 If a default (other than the payment of any money payable by you under this Agreement) reasonably requires more time to cure than 60 days, then the 60 day period referred to in section 7.1 will be extended for so long as is reasonably required to cure the default provided you commence curing the default within the 60 day period and you continue to diligently take steps to cure the default.

7.3 You will make no claim for compensation, in damages or otherwise, upon the lawful termination of this Agreement under section 7.1.

7.4 If any dispute arises under this Agreement, including the issuance of a notice of default as provided in section 7.1, the parties will make all reasonable efforts to resolve the dispute within 60 days of the dispute arising or the notice, as the case may be (or within such other time period agreed to by the parties) and, subject to applicable laws, provide candid and timely disclosure to each other of all relevant facts, information and documents to facilitate those efforts.

7.5 If a dispute under this Agreement cannot be resolved under section 7.4, the parties may agree to refer the dispute to arbitration conducted by a sole arbitrator appointed pursuant to the Commercial Arbitration Act but absent any such agreement either party may take any steps or commence any legal proceedings to which it may be entitled in respect of the dispute.

ARTICLE 8

8.0 NOTICE

8.1 Any notice required to be given by either party to the other will be deemed to be given if mailed by prepaid registered mail in Canada or delivered by hand to the address of the other as follows:

to us

Ministry of Agriculture and Lands
PO BOX 9120  STN PROV GOVT
VICTORIA BC  V8W 9B4

to you

Tsawwassen First Nation
131 North Tsawwassen Drive
Delta, BC V4M 4G2

or at such other address as a party may, from time to time, direct in writing, and any such notice will be deemed to have been received if delivered, on the day of delivery, and if mailed, 7 days after the time of mailing, except in the case of mail interruption in which case actual receipt is required.

8.2 In order to expedite the delivery of any notice required to be given by either party to the other, a concurrent facsimile copy of any notice will, where possible, be provided to the other party but nothing in this section, and specifically the lack of delivery of a facsimile copy of any notice, will affect the deemed delivery provided in section 8.1.

8.3 The delivery of all money payable to us under this Agreement will be effected by hand, courier or prepaid regular mail to the address specified above, or by any other payment procedure agreed to by the parties, such deliveries to be effective on actual receipt.

ARTICLE 9

9.0 GENERAL

9.1 If any section of this Agreement, or any part of a section, is found to be illegal or unenforceable, that section or part of a section, as the case may be, will be considered separate and severable and the remainder of this Agreement will not be affected and this Agreement will be enforceable to the fullest extent permitted by law. The Parties will make their best efforts to amend this Agreement to remedy or replace that section or part of that section as the case may be.

9.2 This Agreement constitutes the entire agreement between the parties with respect to the lease of the Land and no understanding or agreement, oral or otherwise, exists between the parties with respect to the subject matter of this Agreement except as expressly set out in this Agreement and this Agreement may not be modified except by subsequent agreement in writing between the parties.

9.3 Where this Agreement contains the forms of words contained in Column I of Schedule 4 of the Land Transfer Form Act, those words will have the same effect and be construed as if the appropriate forms of words contained in Column II of that Schedule were contained in this Agreement, unless the context requires another construction of those words.

9.4 No provision of this Agreement will be considered to have been waived unless the waiver is in writing, and a waiver of a breach of a provision of this Agreement will not be construed as or constitute a waiver of any further or other breach of the same or any other provision of this Agreement, and a consent or approval to any act requiring consent or approval will not waive or render unnecessary the requirement to obtain consent or approval to any subsequent same or similar act.

9.5 No remedy conferred upon or reserved to us under this Agreement is exclusive of any other remedy in this Agreement or provided by law, but that remedy will be in addition to all other remedies in this Agreement or then existing at law, in equity or by statute.

9.6 We are under no obligation, express or implied, to provide financial assistance or to contribute toward the cost of servicing, creating or developing the Land or the Improvements and you are solely responsible for all costs and expenses associated with your use of the Land and the Improvements for the purposes set out in this Agreement.

9.7 This Agreement does not override or affect any powers, privileges or immunities to which you are entitled under any applicable law.

The parties have executed this Agreement as of the date of reference of this Agreement.

SIGNED on behalf of HER MAJESTY
THE QUEEN IN RIGHT OF THE
PROVINCE OF BRITISH COLUMBIA
by
the authorized representative of the
minister responsible for the Land Act

____________________________________________

TSAWWASSEN FIRST NATION

____________________________________________

SCHEDULE "A"

COPY OF SURVEY PLAN OF WATER LOT