The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 29th day of November, 2007
Ian D. Izard, Q.C., Law Clerk
APPENDIX L
APPLICABLE FORMS OF LICENCES OF
OCCUPATION RESPECTING ACCESS AND
RESEARCH ON FOREST RESEARCH PLOTS
LICENCE OF OCCUPATION FOR FOREST RESEARCH INSTALLATION:
CARNATION CREEK FISH-FORESTRY INTERACTION PROJECT-EP1231.01
THIS AGREEMENT is dated for reference _________________________
BETWEEN:
_____________________________ HUU‑AY‑AHT FIRST NATIONS
AND:
HER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF BRITISH COLUMBIA,
as represented by the Minister of Forests
(the "Licensee")
WHEREAS:
A. The Owner, Canada, and British Columbia have entered into a Final Agreement as hereinafter defined.
B. In accordance with the Final Agreement, the Owner wishes to provide the Licensee with a licence to occupy the Land for the purpose of continuing a watershed scale, multi-disciplinary study of the effects of forestry practices on a small coastal drainage system (the "Licensee's Study").
C. The Owner wishes to use and occupy the Land in accordance with the approved Management Plan (hereinafter defined) without materially interfering with the Licensee's Study.
NOWTHEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the premises, the covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which the Owner acknowledges, the parties agree as follows:
1.1 In this Agreement,
"Agreement" means this licence of occupation;
"Commencement Date" means ___________________ [Effective Date];
"Data Request" means a request made by the Owner to the Licensee pursuant to Section 4.2 requiring the Licensee to deliver to the Owner the experimental forestry data collected by the Licensee in respect of the Land, which request will include the following information:
(a) the Owners intended explicit use/purpose for the data;
(b) the identity of those individuals or organizations who will be granted access to the data; and
(c) the term or duration for which the data is required;
"Final Agreement" means the final treaty agreement among the Owner, British Columbia and Canada;
"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 roads, camp, boardwalks, fish fences, hydrology weirs, climate stations, clearing, excavating, digging, drilling, tunnelling, filling, grading or ditching of, in, on or under the Land;
"Land" means that part or those parts of the following described land shown outlined by bold line on the schedule attached to this Agreement entitled "Legal Description Schedule":
«DB_LEGAL_DESCRIPTION»,
"Management Plan" means the management plan prepared by the Owner in respect of its proposed use of the Land as approved by the Licensee in accordance with Section 3.7;
"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 the Licensee is liable to pay under applicable laws;
"Security" means the security referred to in Section 5.1, as replaced or supplemented in accordance with Section 5.4;
"Technical Working Group" means the Technical Working Group established by the Licensee pursuant to Section 4.1;
"Term" means the period of time set out in Section 2.2.
2.1 On the terms and conditions of this Agreement, the Owner hereby grants to the Licensee a licence to occupy the Land for the purpose of conducting a watershed scale, multi-disciplinary study of the effects of forestry practices on a small coastal drainage system, including, without limitation, the right to:
(a) use and maintain all Improvements;
(b) maintain the watershed on the Land as an "ecological reserve"; and
(c) conduct forestry or fish related studies, tests and experiments.
2.2 The term of this Agreement commences on the Commencement Date and terminates on the sixtieth (60th) anniversary of that date, or such earlier date provided for in this Agreement.
3.1 The Licensee covenants with the Owner:
(a) to pay, when due,
(i) the Realty Taxes, and
(ii) all charges for electricity, gas, water and other utilities supplied to the Land for use by the Licensee;
(b) to observe, abide by and comply with
(i) all applicable laws, bylaws, orders, directions, ordinances and regulations of any government authority having jurisdiction in any way affecting the Licensee's use or occupation of the Land or the Improvements, and
(ii) the provisions of this Agreement;
(c) to keep the Land and the Improvements in a safe, clean and sanitary condition satisfactory to the Owner, acting reasonably, and at the Owner's written request, acting reasonably, rectify any failure to comply with such a covenant by making the Land and the Improvements safe, clean and sanitary;
(d) not to commit any wilful or voluntary waste, spoil or destruction on the Land or do anything on the Land that may be or become a nuisance or annoyance to an owner or occupier of land in the vicinity of the Land;
(e) to use and occupy the Land only in accordance with and for the purposes set out in Section 2.1;
(f) not to interfere with the activities of any other person who enters on and uses 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 the Land;
(g) to permit the Owner, or its representatives, to enter on the Land at any time to inspect the Land and the Improvements;
(h) to indemnify and save the Owner 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) any breach, violation or nonperformance of a provision of this Agreement by the Licensee, and
(ii) any personal injury, bodily injury (including death) or property damage occurring or happening on or off the Land by virtue of the Licensee's occupation of the Land,
and the amount of all such losses, damages, costs and liabilities will be payable to the Owner immediately upon demand; and
(i) on the termination of this Agreement,
(i) peaceably quit and deliver to the Owner possession of the Land;
(ii) remove from the Land any above ground Improvement erected or placed on the Land by the Licensee that the Owner, in writing, directs or permits the Licensee to remove, and
(iii) restore the surface of the Land to the satisfaction of the Owner, acting reasonably;
and to the extent necessary, this covenant will survive the termination of this Agreement;
(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 ONE MILLION DOLLARS ($1,000,000) 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 sub-section on the delivery to the Owner of confirmation that the Licensee is self insured;
(k) notwithstanding sub-section (j), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that sub-section be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to sub-section (j) to be changed to the amount specified by the Owner, acting reasonably, in the notice and delivery to the Owner with a written confirmation of the change, except that when the Licensee is self ensuring this section shall not apply;
(l) not to materially interfere with the exercise of the Owner's rights pursuant to the approved Management Plan except to the minimum extent necessary to carry out the Licensee's Study.
3.2 The Owner will not do or permit anything to be done on the Land that will interfere materially with the Improvements or the exercise of the Licensee's rights hereunder.
3.3 The Owner may, at its discretion, engage in any low impact activity, such as camping and harvesting botanical forest products, which exposes a minimal amount of bare soil and is outside the stream channel network and fish habitat area as identified in "Schedule A: Map of Carnation Creek Fish-Forestry Interaction Project".
3.4 The Licensee will inform the Owner within 30 days of any restricted activities (as set out in Section 3.2) being carried out on the adjacent Crown land portion of the Carnation Creek Watershed outlined in black and shown in Schedule B (the "Adjacent Watershed Area").
3.5 If after 30 days of being informed pursuant to Section 3.4 hereof that the restricted activities are being carried out on the Adjacent Watershed Area then, notwithstanding Section 3.2, the Owner may also engage, within the Carnation Creek Fish-Forestry Interaction Project area, in those types of activities which have been permitted by the Licensee within the Adjacent Watershed Area.
3.6 Prior to the Owner engaging in any activity under Section 3.5, the Owner will:
(a) provide the Licensee with 30 days notice of their intent to proceed with such activity; and
(b) obtain the Licensee's consent to such activity, which consent will not be unreasonably withheld.
3.7 If the Owner wishes to use the Land in a manner other than as permitted in Section 3.3 or Section 3.5 it will, no more frequently than once each calendar year, prepare a Management Plan outlining, in sufficient detail as required by the Licensee acting reasonably, the proposed use and occupation of the Land by the Owner and or its invitees. Within 60 days of receipt of the Management Plan, the Licensee, acting reasonably, may either:
(a) approve the Management Plan with or without conditions; or
(b) refuse to approve the Management Plan on the basis that the uses proposed therein will interfere materially with the Licensee's rights hereunder, including, without limitation the Licensee's Study.
3.8 If the Licensee refuses to approve the Management Plan pursuant to Section 3.7(b) or attaches conditions to its approval pursuant to Section 3.7(a), then the Owner may submit the matter to one or more stages of dispute resolution as set out in Appendix Y to the Final Agreement.
3.9 If the Owner obtains an approved Management Plan it hereby covenants and agrees to only use and occupy and to permit the Land only to be used and occupied in accordance with the terms of the approved Management Plan.
4.1 In order to facilitate the carrying out of and to oversee the Licensee's Study the Licensee will establish a Technical Working Group comprised of research team members, a representative of the Licensee and a representative of the Owner. The Licensee will give reasonable notice of and will invite the Owner's representative to attend all meetings of the Technical Working Group. The Owner's representative on the Technical Working Group will be entitled to attend all meetings:
(a) by himself;
(b) with one other person invited by him; or
(c) by sending a delegate in his place.
4.2 At any time during the Term, the Owner may deliver a Data Request to the Licensee. Upon receipt of a Data Request, the Licensee will deliver the requested data to the Owner provided that the Owner first enters into the Licensee's then current Data Use and Sharing Agreement, which agreement will include, without limitation, provisions dealing with the following:
(a) that notwithstanding the provision of the data to the Owner, the Licensee retains all ownership rights (including copyright and all other intellectual property rights) to the data;
(b) the data will not be sold for commercial purposes;
(c) the data will only be used for the purpose set out in the Data Request; and
(d) covenants and agreements from the Owner:
(i) that no data, copies, or parts thereof, shall be retained after the project referenced in the Data Request is completed;
(ii) to not disclose, release, reveal, show, sell, rent, lease, loan, or otherwise grant access to the data covered by the Data Request unless agreed to by the Licensee;
(iii) to provide the Licensee with copies of all published analyses and research findings based on the data received under this Agreement;
(iv) to include the following statement in the publication, presentation, or dissemination of any analysis conducted with the data files received under the applicable Data
Request: "The plot data used in this analysis was provided by the Forest Sciences Program of the B.C. Ministry of Forests."
5.1 The sum of $1.00 and all rights, privileges, benefits and interests accruing thereto shall be delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this licence and 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 requirement of this section.
5.2 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.
5.3 The rights of the Owner under this Article shall be deemed to continue in full force and effect notwithstanding the expiry or earlier cancellation of this Licence.
5.4 Notwithstanding the amount of the Security stated to be required under Section 5.1 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 5.1, this section shall not apply.
6.1 The Licensee shall not assign this licence or sublicense any part of the Land, without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
6.2 Notwithstanding Section 6.1, the Licensee may, without the prior written consent of the Owner:
(a) assign its interest in all or a part of the Land to a British Columbia crown corporation; or
(b) sublicence its interest in all or a part of the Land to the federal Department of Fisheries and Oceans, other governmental agencies or departments and universities or colleges.
7.1 The Licensee further covenants and agrees with the Owner that:
(a) if the Licensee
(i) defaults in the payment of any money payable by the Licensee under this Agreement, or
(ii) fails to observe, abide by and comply with the provisions of this Agreement (other than the payment of any money payable by the Licensee under this Agreement),
and the Licensee's default or failure continues for 60 days after the Owner gives written notice of the default or failure to the Licensee,
(b) if, the Licensee fails to make diligent use of the Land for the purposes set out in this Agreement, and such failure continues for 180 days after the Owner gives written notice of the failure to the Licensee; or
(c) if the Licensee
(i) becomes insolvent or makes an assignment for the general benefit of its creditors,
(ii) commits an act which entitles a person to take action under the Bankruptcy and Insolvency Act (Canada) or a bankruptcy petition is filed or presented against the Licensee or/the Licensee consents to the filing of the petition or a decree is entered by a court of competent jurisdiction adjudging the Licensee bankrupt under any law relating to bankruptcy or insolvency, or
(iii) voluntarily enters into an arrangement with its creditors;
this Agreement will, at the Owner's option and with or without entry, terminate and the Licensee's right to use and occupy the Land will cease.
7.2 If the condition complained of (other than the payment of any money payable by the Licensee under this Agreement) reasonably requires more time to cure than 60 days, the Licensee will be deemed to have complied with the remedying of it if the Licensee commences remedying or curing the condition within 60 days and diligently completes the same.
7.3 The Licensee will make no claim for compensation, in damages or otherwise, upon the lawful termination of this Agreement under Section 7.1.
7.4 The Licensee may deliver a written notice to the Owner cancelling this Agreement and thereafter the licence and the rights herein granted will terminate 180 days after the date of receipt by the Owner of such written 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 to the address of the other at the addresses specified for each on the first page of this licence, 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 the Owner 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.
9.1 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.
9.2 No remedy conferred upon or reserved to the Owner 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.
9.3 This Agreement extends to, is binding upon and enures to the benefit of the parties, their heirs, executors, administrators, successors and permitted assigns.
9.4 Time is of the essence in this Agreement.
9.5 In this licence, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and the corporation.
9.6 The captions and headings contained in this licence 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.
9.7 If any section of this licence 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 the licence shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
The parties have executed this Agreement as of the date of reference of this Agreement.
SIGNED on behalf of _____________________________,
by a duly authorized representative
___________________________________
Authorized Signatory
SIGNED on behalf of HER MAJESTY THE QUEEN
IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA
by a duly authorized signatory
___________________________________
Authorized Signatory
LEGAL DESCRIPTION SCHEDULE
LICENCE OF OCCUPATION FOR FOREST RESEARCH PLOTS:
• RESEARCH INSTALLATIONS
• GROWTH AND YIELD SITES
THIS AGREEMENT is dated for reference________________________________
BETWEEN:
_________________________________ FIRST NATION of
_________________________________
(the "Owner")
AND:
HER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF BRITISH COLUMBIA,
as represented by the Minister of Forests
(the "Licensee")
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the premises, the covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which the Owner acknowledges, the parties agree as follows:
1.1 In this Agreement,
"Agreement" means this licence of occupation;
"Commencement Date" means _________________________ [Effective Date];
"Data Request" means a request made by the Owner to the Licensee pursuant to Article 4 requiring the Licensee to deliver to the Owner the experimental forestry data collected by the Licensee in respect of the Land, which request will include the following information:
(a) the Owners intended explicit use/purpose for the data;
(b) the identity of those individuals or organizations who will be granted access to the data; and
(c) the term or duration for which the data is required;
"Final Agreement" means the final treaty agreement among the Owner, British Columbia and Canada;
"Land" means that part or those parts of the following described land shown outlined by bold line on the schedule attached to this Agreement entitled "Legal Description Schedule":
Note: Legal Description to be included here.
"Management Plan" means the management plan prepared by the Owner in respect of its proposed use of the Land as approved by the Licensee in accordance with Section;
[Note to Draft: This definition only to be included in those Licence of Occupation where the "Land" exceeds 10 ha. in size]
"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, or any of the Licensee's improvements situate thereon that the Licensee is liable to pay under applicable laws;
"Security" means the security referred to in section 5.1, as replaced or supplemented in accordance with section 5.4;
"Term" means the period of time set out in section 2.2;
2.1 On the terms and conditions of this Agreement, the Owner hereby grants to the Licensee, its agents, contractors, subcontractors and employees a licence to enter on and use the Land for the purpose of conducting periodic timber measurements and inspections within Forestry experimental plots or permanent sample plots to assess changes to stand structure resulting from treatments, tree growth, mortality, ingrowth and succession.
2.2 The term of this Agreement commences on the Commencement Date and terminates on the ______________________ (____) anniversary of that date, or such earlier date provided for in this Agreement. [Note to Draft: Length of Term will depend on the requirements of each individual plot.]
2.3 Notwithstanding anything to the contrary in this Agreement, so long as:
(a) the Licensee is not in default of any of the material terms or conditions of this Agreement; and
(b) the Licensee has given the Owner, not more than 180 days prior to the expiration of the Term, notice in writing of the Licensee's wish to re-apply for a new licence to enter on and use 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 to enter on and use the Land by executing the new licence contained in the notice and delivering it to the Owner.
3.1 Licensee covenants with the Owner:
(a) to pay, when due,
(i) the Realty Taxes, and
(ii) all charges for electricity, gas, water and other utilities supplied to the Land for use by the Licensee;
(b) to observe, abide by and comply with
(i) all applicable laws, bylaws, orders, directions, ordinances and regulations of any government authority having jurisdiction in any way affecting the Licensee's use or occupation of the Land and the improvements situate thereon, and
(ii) the provisions of this Agreement;
(c) to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner, acting reasonably, and at the Owner's written request, acting reasonably, rectify any failure to comply with such a covenant by making the Land safe, clean and sanitary;
(d) not to commit any wilful or voluntary waste, spoil or destruction on the Land or do anything on the Land that may be or become a nuisance or annoyance to an owner or occupier of land in the vicinity of the Land;
(e) to use and occupy the Land only in accordance with and for the purposes set out in section 2.1;
(f) not to interfere with the activities of any other person who enters on and uses 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 the Land, in accordance with Section 9.3;
(g) to permit the Owner, or its representatives, to enter on the Land at any time to inspect the Land;
(h) to indemnify and save the Owner 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) any breach, violation or nonperformance of a provision of this Agreement by the Licensee, and
(ii) any personal injury, bodily injury (including death) or property damage occurring or happening on or off the Land by virtue of the Licensee's occupation of the Land,
and the amount of all such losses, damages, costs and liabilities will be payable to the Owner immediately upon demand; and
(i) on the termination of this Agreement,
(i) decommission the Land and peaceably quit and deliver to the Owner possession of the Land;
(ii) remove from the Land any 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 that the Owner, in writing, directs or permits the Licensee to remove, and
(iii) restore the surface of the Land to the satisfaction of the Owner, acting reasonably;
and to the extent necessary, this covenant will survive the termination of this Agreement;
(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 ONE MILLION DOLLARS ($1,000,000) 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 sub-section on the delivery to the Owner of confirmation that the Licensee is self insured;
(k) notwithstanding sub-section (j), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that sub-section be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to sub-section (j) to be changed to the amount specified by the Owner, acting reasonably, in the notice and delivery to the Owner with a written confirmation of the change, except that when the Licensee is self-insuring this section shall not apply.
(l) not to materially interfere with the exercise of the Owner's rights pursuant to the approved Management Plan except to the minimum extent necessary to carry out the purposes set out in Section 2.1.
[Note to Draft: To be included only if the area of the Land exceeds 10 ha.]
3.2 The Owner will not do or permit anything to be done on the Land that will interfere materially with the exercise of the Licensee's rights hereunder.
3.3 If the Owner wishes to use the Land or permit others to use the Land in a manner permitted in Section 9.3 it will, no more frequently than once each calendar year, prepare a Management Plan outlining, in sufficient detail as required by the Licensee acting reasonably, the proposed use and occupation of the Land by the Owner and or its invitees. Within 60 days of receipt of the Management Plan, the Licensee, acting reasonably, may either:
(a) approve the Management Plan with or without conditions; or
(b) refuse to approve the Management Plan on the basis that the uses proposed therein will interfere materially with the Licensee's rights hereunder.
3.4 If the Licensee refuses to approve the Management Plan pursuant to Section 3.3(b) or attaches conditions to its approval pursuant to Section 3.3(a), then the Owner may submit the matter to one or more stages of dispute resolution as set out in Appendix Y to the Final Agreement.
3.5 If the Owner obtains an approved Management Plan it hereby covenants and agrees to only use and occupy and to permit the Land only to be used and occupied in accordance with the terms of the approved Management Plan.
[Note to Draft: Sections 3.3 \x7f 3.5 will only be included if the Land exceeds 10 ha. in area]
4.1 At any time during the Term, the Owner may deliver a Data Request to the Licensee. Upon receipt of a Data Request, the Licensee will deliver the requested data to the Owner provided that the Owner first enters into the Licensee's then current Data Use and Sharing Agreement, which agreement will include, without limitation, provisions dealing with the following:
(a) that notwithstanding the provision of the data to the Owner, the Licensee retains all ownership rights (including copyright and all other intellectual property rights) to the data;
(b) the data will not be copied or used for commercial purposes;
(c) the data will only be used for the purpose set out in the Data Request; and
(d) covenants and agreements from the Owner:
(i) that no data, copies, or parts thereof, shall be retained after the project referenced in the Data Request is completed;
(ii) to not disclose, release, reveal, show, sell, rent, lease, loan, or otherwise grant access to the data covered by the Data Request unless agreed to by the Licensee;
(iii) to provide the Licensee with copies of all published analyses and research findings based on the data received under this Agreement;
(iv) to include the following statement in the publication, presentation, or dissemination of any analysis conducted with the data files received under the applicable Data.
Request: "The plot data used in this analysis was provided by the Forest Sciences Program of the B.C. Ministry of Forests."
5.1 The sum of $1.00 and all rights, privileges, benefits and interests accruing thereto shall be delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this licence and 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 requirement of this section.
5.2 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.
5.3 The rights of the Owner under this Article shall be deemed to continue in full force and effect notwithstanding the expiry or earlier cancellation of this Licence.
5.4 Notwithstanding the amount of the Security stated to be required under Section 5.1 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 5.1, this section shall not apply.
6.1 The Licensee shall not assign this licence or sublicense any part of the Land, without the prior written consent of the Owner, which consent shall not be unreasonably withheld.
6.2 Notwithstanding Section 6.1, the Licensee may, without the prior written consent of the Owner assign or sublicense its interest in all or a part of the Land to a British Columbia crown corporation, other governmental agencies or departments and universities or colleges.
7.1 The Licensee further covenants and agrees with the Owner that:
(a) if the Licensee
(i) defaults in the payment of any money payable by the Licensee under this Agreement, or
(ii) fails to observe, abide by and comply with the provisions of this Agreement (other than the payment of any money payable by the Licensee under this Agreement), and the Licensee's default or failure continues for 60 days after the Owner gives written notice of the default or failure to the Licensee, or
(b) if the Licensee
(i) becomes insolvent or makes an assignment for the general benefit of its creditors,
(ii) commits an act which entitles a person to take action under the Bankruptcy and Insolvency Act (Canada) or a bankruptcy petition is filed or presented against the Licensee or/the Licensee consents to the filing of the petition or a decree is entered by a court of competent jurisdiction adjudging the Licensee bankrupt under any law relating to bankruptcy or insolvency, or
(iii) voluntarily enters into an arrangement with its creditors;
this Agreement will, at the Owner's option and with or without entry, terminate and the Licensee's right to use and occupy the Land will cease.
7.2 If the condition complained of (other than the payment of any money payable by the Licensee under this Agreement) reasonably requires more time to cure than 60 days, the Licensee will be deemed to have complied with the remedying of it if the Licensee commences remedying or curing the condition within 60 days and diligently completes the same.
7.3 The Licensee will make no claim for compensation, in damages or otherwise, upon the lawful termination of this Agreement under Section 7.1.
7.4 The Licensee may deliver a written notice to the Owner cancelling this Agreement and thereafter the licence and the rights herein granted will terminate 180 days after the date of receipt by the Owner of such written 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 to the address of the other at the addresses specified for each on the first page of this licence, 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 the Owner 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.
9.1 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.
9.2 No remedy conferred upon or reserved to the Owner 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.
9.3 This Agreement 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 licence, right or interest to others to use or occupy the Land, such grant will contain a provision identical to Subsection 3.1 (c) of this Agreement obligating the new grantee to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner.
9.4 This Agreement extends to, is binding upon and enures to the benefit of the parties, their heirs, executors, administrators, successors and permitted assigns.
9.5 Time is of the essence in this Agreement.
9.6 In this licence, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and the corporation.
9.7 The captions and headings contained in this licence 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.
9.8 If any section of this licence 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 the licence shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
The parties have executed this Agreement as of the date of reference of this Agreement.
SIGNED on behalf of _______________________________ FIRST NATION,
by a duly authorized representative
_____________________________
Authorized Signatory
SIGNED on behalf of HER MAJESTY THE QUEEN
IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA
by a duly authorized signatory
_____________________________
Authorized Signatory
LEGAL DESCRIPTION SCHEDULE