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| 1998 Legislative Session: 3rd Session, 36th Parliament FIRST READING |
| The following electronic version is for informational
purposes only. The printed version remains the official version. |
| BILL 51: NISGA'A FINAL AGREEMENT ACT -- APPENDICES | APPENDIX C - 2 |
License of Occupation for Communication Site
THIS AGREEMENT made this __________ day of ____________________ , 199
BETWEEN:
NISGA'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:
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").
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 |
) ) |
|
| ____________________ | ) | |
| ) |
1. Legal Description
2. Sketch Plan
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:
NISGA'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:
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").
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.
3.1 The Licensee shall pay to the Owner a license fee of $1.00 for the entire term.
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.
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.
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.
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.
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.
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.
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.
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 |
) ) |
|
| ____________________ | ) | |
| ) |
1. Legal Description
2. Sketch Plan
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:
NISGA'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:
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").
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
NISGA'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:
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").
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
NISGA'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:
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").
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 |
) ) |
|
| ____________________ | ) | |
| ) |
1. Legal Description
2. Sketch Plan
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:
NISGA'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:
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").
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 |
) ) |
|
| ____________________ | ) | |
| ) |
1. Legal Description
2. Sketch Plan
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:
NISGA'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:
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.
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.
3.1 The Licensee shall pay to the Owner a license fee of $1.00 for the entire term.
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.
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.
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.
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.
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.
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.
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.
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:
NISGA'A NATION, of
____________________
(the "Owner")
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the Minister of the Environmentof____________________
(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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
NISGA'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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
NISGA'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:
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").
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
Permit of Occupation for Waterworks
THIS AGREEMENT made this __________ day of ____________________, 199
BETWEEN:
NISGA'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 Nisga'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:
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").
2.1 The Land that is authorized to be occupied under this permit is described in the Schedule attached and entitled "Legal Description".
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.
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.
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.
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.
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.
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.
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.
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.
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 | ) | |
| ) | ||
| in the presence 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:
NISGA'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 Nisga'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:
NISGA'A NATION,
of ____________________
(the "Owner")
AND:
____________________ , of
____________________
("the Permittee")
Whereas the Owner has agreed to grant to the Permittee a permit to enter on and use that parcel of land (the "Land") located generally in the vicinity of ____________________ and described in the schedule attached and entitled "Legal Description";
Now therefore in consideration of the fee to be paid by, and the covenants of, the Permittee, the parties agree as follows:
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
.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 Nisga'a Tribal Council
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Copyright © 1998: Queen's Printer, Victoria, British Columbia, Canada