APPENDIX C-2
DOCUMENT 3


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:
 
 
 

ARTICLE 1 - GRANT OF LICENSE

1.1        The Owner, on the terms set forth herein, hereby grants to the Licensee:

    1. 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
     
    1. a license to enter on and use the Utility Area, with or without equipment, machinery and materials as reasonably required by the Licensee, to construct, instal, operate, maintain, repair, replace and use powerlines and all ancillary works on the Utility Area as reasonably required to provide power to the Land (the licenses in subsections 1.1 (a) and (b) are collectively "the License").
 
 
ARTICLE 2 - DURATION

2.1        The duration of the License and the rights herein granted shall be for a term of 20 years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with Article 6.

2.2        Notwithstanding anything to the contrary in this License, so long as:

    1. the Licensee is not in default of any of the material terms or conditions of this License; and
     
    1. the Licensee has given the Owner, not more than · days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new license to enter on and use the Land and the Utility Area
the Owner may agree to offer a new license to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of 60 days from the date of receipt of the notice from the Owner to accept a new License to enter on and use the Land and the Utility Area by executing the new License contained in the notice and delivering it to the Owner.
 
 
ARTICLE 3 - LICENSE FEE

3.1        The Licensee shall pay to the Owner an annual License fee during the term of this License, in advance, as follows:

    1.  during the first five years of the term of this License (the "Initial Fee Period"), the Licensee shall pay to the Owner:
      1. on the Commencement Date, the sum of · ; and
       
      1. 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
         
        1. 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
    1. 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:
      1. the annual License fee for the immediately preceding year,
       
      1. the amount which would be payable on that date under the then-existing Provincial Policies, or
       
      1. 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
         
        1. 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:
    1. belonging to the Licensee; or
     
    1. not available for use by the Licensee.
 
 
ARTICLE 4 - COVENANTS OF THE LICENSEE

4.1        The Licensee covenants with the Owner:

    1. 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;
     
    1. 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;
     
    1. 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;
     
    1. 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;
     
    1. 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;
     
    1. 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:
      1. any breach, violation or non-performance of any covenant, condition or agreement in this license by the Licensee, or
       
      1. 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;
       

    1. 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;
     
    1. to permit the Owner or its authorized representative to enter upon the Land or the Utility Area at any time to examine its condition;
     
    1. 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";
     
    1. on the expiration or at the earlier cancellation of this License:
     
      1. to quit peaceably and deliver possession of the Land and the Utility Area to the Owner,
       
      1. 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
       
      1. 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;
    1. 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;
     
    1. 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;
     
    1. 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
     
    1. on request of the Owner, to provide to the Owner an inventory of communication uses sufficient to allow the calculation of fees under the Provincial Policies.
 
ARTICLE 5 - ASSIGNMENT

5.1        The Licensee shall not assign this License or grant a sublicense of any part of the Land or the Utility Area without the prior written consent of the Owner, which consent shall not be unreasonably withheld.

5.2        Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner, assign its interest in all or a part of the Land and the Utility Area to an affiliate (as defined in the Company Act, RSBC 1996) of the Licensee provided that the Licensee gives written notice of any such change at least 120 days prior to the next anniversary date of the term of this License.

5.3        No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this License.
 
 

ARTICLE 6 - CANCELLATION

6.1        If the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:

    1. 30 days; or
     
    1. 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:

    1. upon the cancellation of this License pursuant to section 6.1, section 6.4 or section 6.6; or
     
    1. thirty days after the expiration of this License or the cancellation of this License pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this License),
shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.

6.8        If the Owner elects to assume ownership of any above-ground Improvements pursuant to section 6.7, the Owner may remove them from the Land or the Utility Area and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.

6.9        The rights of the Owner under section 6.7 and section 6.8 shall be deemed to survive the expiration or earlier cancellation of this License.
 
 

ARTICLE 7 - SECURITY

7.1        The security in the sum of $· and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this License shall be maintained in effect until such time as the Owner certifies in writing that such obligations have been fully performed. The Owner may, in its sole discretion, waive the requirements of this section.

7.2        In the event the Licensee defaults in the performance of any of its obligations hereunder, the Owner may, in its sole discretion, sell, call in and convert the Security, or any part of it, and such Security shall be deemed to have been absolutely forfeited to the Owner.

7.3        The rights of the Owner under this Article shall be deemed to continue in full force and effect notwithstanding the expiration or earlier cancellation of this License.

7.4        Notwithstanding any amount of Security stated to be required under section 7.1, the Owner may, acting reasonably, from time to time by notice to the Licensee, demand the amount to be changed to that specified in a notice and the Licensee shall, within 60 days of such notice, change the Security to that specified and provide the Owner with evidence of the change, except that while Security is waived under section 7.1, this section shall not apply.
 
 

ARTICLE 8 - NOTICE

8.1        Whenever service of a notice or a document is required under this License, the notice or documents shall be in writing and shall be deemed to have been served if delivered to, or if sent by prepaid registered mail addressed to, the Owner or the Licensee, as the case may be, at the addresses specified for each on the first page of this License, and where service is by registered mail the notice or document shall be conclusively deemed to have been served on the eighth day after its deposit in a Canada Post office at any place in Canada. If there is a disruption in mail service caused by labour dispute, civil unrest or other events beyond the control of the parties, between mailing and actual receipt of such notice, the party sending such notice will re-send by courier, fax or other electronic means and such notice will only be effective if actually received.

8.2        Either party may, by notice in writing to the other, specify another address for service of notices under this License and after another address has been specified under this section, notices shall be mailed to that address in accordance with this Article.
 
 

ARTICLE 9 - MISCELLANEOUS

9.1        No term, condition, covenant or other provision herein shall be considered to have been waived by the Owner unless such waiver is expressed in writing by the Owner. Any such waiver of any term, condition, covenant or other provision herein shall not be construed as or constitute a waiver of any further or other breach of the same or any other term, condition, covenant, or other provision and the consent or approval of the Owner to any act by the Licensee requiring the consent or approval of the Owner shall not be considered to waive or render unnecessary such consents or approvals to any subsequent similar act by the Licensee.

9.2        No remedy conferred upon or reserved to the Owner is exclusive of any other remedy herein or provided by law, but such remedy shall be cumulative and shall be in addition to any other remedy herein or hereafter existing at law, in equity, or by statute.

9.3        This License shall not entitle the Licensee to exclusive possession of the Land or the Utility Area and the Owner may, for any purpose, grant to others interests in the Land or the Utility Area, or rights to enter on or use or occupy the Land or the Utility Area, or may otherwise authorize other persons to enter on or use or occupy the Land or the Utility Area, so long as the grant or authorization does not materially affect the exercise of the Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a license, right or interest to others to use or occupy the Land or the Utility Area, such grant will contain a provision identical to subsection 4.1(g) of this License obligating the new grantee to keep the Land or the Utility Area in a safe, clean and sanitary condition satisfactory to the Owner.

9.4        The terms and provisions of this License shall extend to, be binding upon and enure to the benefit of the parties hereto and their successors and permitted assigns.

9.5        Time is of the essence in this agreement.
 
 

ARTICLE 10 - DISPUTE RESOLUTION

10.1        In this Article, "dispute" means any dispute arising out of or in connection with this License or in respect of any defined legal relationship associated with it or derived from it.

10.2        The parties agree to attempt to resolve all disputes by negotiations conducted in good faith and to provide timely disclosure of all relevant facts, information and documents to further those negotiations.

10.3        If a dispute is not settled through direct negotiations either party may request the British Columbia International Commercial Arbitration Centre (BCICAC) to appoint a mediator to conduct a mediation under its mediation rules of procedure.

10.4        If a dispute is not settled within 15 days of the appointment of the mediator or any further period of time agreed to by the parties, the dispute shall be referred to and finally resolved by arbitration before a single arbitrator under the arbitration rules of procedure of the BCICAC.

10.5        If the BCICAC is unavailable or unable to administer the mediation or arbitration of a dispute under its rules of procedure, the parties will select the rules of another institution.
 
 

ARTICLE 11 - INTERPRETATION

11.1        In this License, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and a corporation.

11.2        The captions and headings contained in this License are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of the provisions herein.

11.3        If any section of this License or any part of a section is found to be illegal or unenforceable, that part or section, as the case may be, shall be considered separate and severable and the remaining parts and sections of this License shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.

IN WITNESS WHEREOF, the parties have executed this License as of the day and year first above written.
 
 
SIGNED by a duly authorized signatory of 

in the presence of:



Name



Address



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SIGNED by a duly authorized signatory of 

in the presence of:



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Address



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LEGAL DESCRIPTION SCHEDULE
 
  1. Legal Description
  1. 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.
  1. The Licensee shall inform the Owner of any amendments to his Radio Station License.