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:
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:
3.1 The Licensee shall pay to the Owner an annual License fee during the term of this License, in advance, as follows:
4.1 The Licensee covenants with the Owner:
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;
and to the extent necessary, this covenant shall survive the expiration or cancellation of this License;
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:
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:
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
Address
|
)
) ) ) ) ) ) ) ) ) ) ) ) Authorized Signatory ) ) ) ) ) ) |
SIGNED by a duly authorized
signatory of
in the presence of:
Name
Address
|
)
) ) ) ) ) ) ) ) ) ) ) ) Authorized Signatory ) ) ) ) ) ) |
Special Provisos: