THIS AGREEMENT is dated _______________________________, _____________
[NISGA'A NATION or NISGA'A VILLAGE]AND:
(TO BE DETERMINED ON EXECUTION)
"Grantee's Property" means the lands described in Schedule A attached to this Agreement.2. Rights and Privileges on Easement Area
"Easement Area" means that portion of the Servient Lands as described in Schedule B attached to this Agreement.
"Security" means the security for the performance of the Grantee's obligations as set out in paragraph 11 in the amount of $__________________.
"Servient Lands" means the lands described in Schedule B attached to this Agreement.
"Special Conditions" means the conditions, if any, set out in Schedule C attached to this Agreement.
By this Agreement the Owner grants to the Grantee, and its invitees, permittees, representatives, employees, and agents, their heirs, executors, administrators and assigns, the full, free and uninterrupted easement, right and liberty over the Easement Area to enter on and use the Easement Area for the purpose of constructing and maintaining (including trimming or removing trees and vegetation) a road and using the Easement Area as a road to give pedestrian and vehicular access to the Grantee's Property.3. Duration
This Easement is appurtenant to the Grantee's Property and passes with a conveyance or other disposition of the estate in fee simple of the Grantee's Property, and is binding on the Servient Lands.4. Annual Fee
The Grantee will pay the Owner an annual fee in advance in the amount of $________ to cover the Owner's costs of administering this Agreement.5. Covenant
The obligation of the Grantee in this Agreement constitutes both contractual obligations and covenants under Section 219 of the Land Title Act in respect of the Grantee's Property and runs with the Grantee's Property and binds successors in title.6. Non Exclusive Use
This Agreement will not entitle the Grantee to exclusive possession of the Easement Area and the Owner reserves the right to grant other dispositions of the Easement Area so long as the grant does not impair the Grantee's permitted use of the Easement Area.
7. Covenants of the Grantee
The Grantee covenants with the Owner:
(a) to pay the annual fee as described in paragraph 4 at the address of the Owner set out above or at such other place as the Owner may specify under paragraph 14;
(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 Easement Area or any of the Grantee's improvements on the Easement Area which the Grantee 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, including an Owner government, in any way affecting the Easement 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 Easement Area or do or suffer to be done thereon by its invitees, permittees, representatives, employees, or agents, or anyone for whom the Grantee is responsible at law, anything that may be or becomes a nuisance;
(e) not to bury debris or rubbish of any kind on the Easement Area;
(f) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Easement Area, or anything that may be or become a nuisance or annoyance to the Servient Lands;
(g) to deliver to the Owner from time to time, upon demand, proof of insurance required under this Agreement, receipts or other evidence of payment of any taxes or charges owning, and other monetary obligations of the Grantee required to be observed by the Grantee pursuant to this Agreement;
(h) 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 obligation under this Agreement by the Grantee; andand the Owner may add the amount of any losses, damages, costs and liabilities to the fees payable under paragraph 4, and the amount added will be payable to the Owner immediately.
(ii) any personal injury, death, or property damage, arising out of the Grantee's use or occupation of the Easement Area under this Agreement,
(i) to keep the Easement 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 Easement Area or any improvement thereon that the Owner, acting reasonably, may direct by notice in writing to the Grantee;
(j) to permit the Owner or its authorized representative to enter upon the Easement Area at any time to examine its condition;
(k) to use and occupy the Easement Area in accordance with the provisions of this Agreement including the Special Conditions, if any, set out in Schedule C;
(l) on the expiration or at the earlier cancellation of this Agreement:(i) to quit peaceably and deliver possession of the Easement Area to the Owner;and to the extent necessary, this covenant shall survive the expiration or cancellation of this Agreement;
(ii) to de-commission the road, including the removal of any structures or works on the Easement Area, and restore the surface of the Easement Area to the satisfaction of the Owner acting reasonably;
(m) to obtain and keep in force insurance covering the Owner and the Grantee (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 Easement Area to an amount not less than $1,000,000.00;8. Cancellation
(n) notwithstanding subparagraph (m), the Owner may from time to time, acting reasonably, considering the amount of insurance a prudent owner would carry, require the Grantee to increase the amount of insurance and the Grantee will, within 60 days of receiving the request, obtain the required additional insurance and deliver to the Owner written confirmation of the change;
(o) not to interfere with the activities, works or other improvements of any other person who enters on or uses or occupies the Easement 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 Easement Area, in accordance with paragraph 6; and
(p) if the Grantee, or its agents, contractors or representatives, discover any archaeological material on the Easement Area, to take all reasonable steps and precautions to minimize disturbance of that material, and to immediately notify the Owner.
Despite any other provision of this Agreement, this Agreement may be cancelled if the Grantee fails or refuses to observe or perform any term in this Agreement, and the failure continues after the Owner gives written notice of the failure to the Grantee for a period of:9. Relocation of Easement Area(a) 30 days; orthen the Owner may by further written notice to the Grantee cancel this Agreement and despite paragraph 7(l), any fixtures to the Easement Area will, at the discretion of the Owner, become the property of the Owner.
(b) 150 days, if the failure because of its nature reasonably requires more than 30 days to cure, and provided that the Grantee proceeds diligently and continuously to cure the failure
If the Owner requires the Easement Area for another purpose, the Owner may, on 180 days written notice to the Grantee and in consultation with the Grantee:10. Third Party Notice(a) at its cost locate and construct an alternate road providing access to the Grantee's Property to a standard at least equivalent to the original road;and on cancellation the Grantee will quit peaceably and deliver possession of the Easement Area, except that the Grantee may, at its election, within 60 days of the cancellation, or such longer time as reasonably required, remove any fixtures from the Easement Area, but the Grantee will not be required to comply with paragraph 7(l)(ii).
(b) grant a replacement Agreement for the alternate road on the same terms as this Agreement; and
(c) by further written notice to the Grantee cancel this Agreement;
The Owner will not dispose of, or agree to dispose of, the Servient Lands without first notifying any intended purchaser of the existence of this Agreement.11. Ownership of Commercially Valuable Timber
All timber of commercial value on the Easement Area will remain the property of the Owner.12. Security
The Grantee will deliver the Security to the Owner within 30 days of the commencement of this Agreement, and in any event prior to the Grantee's use of the Easement Area, as security for the performance of the Grantee's obligations under this Agreement, and the following will apply:
(a) the Grantee will maintain the Security in full until the later of:13. Disputes(i) the termination of this Agreement; or(b) if the Grantee defaults in the performance of any of its obligations under this Agreement, the Owner may, in its sole election, draw on and use the Security to reimburse the Owner for all reasonable costs and expenses, including legal and other professional services costs if any, caused by or arising out of the Grantee's breach, and in the event of a call on the Security the Grantee will, as a condition of the continuation of this Agreement, immediately pay to the Owner the amount of the draw so that the full amount of the Security is available.
(ii) the complete fulfillment of all of the Grantee's obligations under this Agreement;
Any dispute arising out of or in connection with this Agreement will be resolved as follows:14. Notice(a) the parties will attempt to resolve disputes by good faith negotiations, including timely disclosure of all relevant facts, information and documents;except that it is not incompatible with this paragraph for a party to apply to a court at any time for interim or conservatory relief, and for the court to grant that relief.
(b) either party may, at any time, by written notice request that the dispute be referred to mediation, conducted by a mediator, knowledgeable about the matters in dispute;
(c) if the dispute is not resolved within 30 days of the notice to mediate under subparagraph (b) then, on the agreement of both parties, the dispute may be referred to a single arbitrator for final resolution. If the parties do not agree to arbitration then either party may refer the matter to the courts;
If notice is required or permitted under this Agreement, the notice:15. Waiver and Consent
(a) must be in writing;
(b) must be delivered to the address set out above, or other address as specified in writing by a party; and
(c) may be given in one or more of the following ways:(i) delivered personally or by courier, and it will be deemed received on the next business day;
(ii) delivered by fax, and it will be deemed received on the next business day; or
(iii) mailed by pre-paid post in Canada, and it will be deemed received on the eighth business day following.
A breach of any term, condition, covenant or other provision of this Agreement may only be waived in writing, and any waiver will not be construed as a waiver of any subsequent breach. Consent to or approval of any act, where consent or approval is required under this Agreement, will not be construed as consent to or approval of any subsequent act.16. Remedies
No remedy set out in this Agreement is exclusive of any other remedy provided by law, but will be in addition to any other remedy existing at law, in equity, or by statute.17. Enurement
The terms and provisions of this Agreement shall extend to, be binding upon and enure to the benefit of the parties hereto and their successors and permitted assigns.18. Interpretation
In this Agreement:
IN WITNESS THEREOF the parties have duly executed this Agreement, as of the date first referred to above.(a) all attached schedules form an integral part of this Agreement;
(b) unless the context otherwise requires, the singular includes the plural and the masculine include the feminine gender, body politic and a corporation;
(c) the headings are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of the Agreement;
(d) a reference to an enactment of British Columbia or of Canada will be deemed to include a reference to any subsequent amendments or replacements; and
(e) if any provision is determined by a court or arbitrator of competent jurisdiction to be illegal or unenforceable, that provision will be considered separate and severable, and the legality or enforceability of the remaining provisions will not be affected by that determination.
(authorized signatory of Grantee)