THIS AGREEMENT made this ________ day of _____________, 199
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
represented by the Minister of the Environment of
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:
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 Nothwithstanding anything to the contrary in this license, so long as:
3.1 The Licensee shall pay to the Owner a license fee during the term of this license, in advance, as follows:
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:
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 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.
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:
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:
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.
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.
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
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.
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.
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.
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
in the presence of:
) Authorized Signatory
|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:
) Authorized Signatory