This Agreement is dated _______________________________, __________
(the "Nisga'a Nation")
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY, continued under the Hydro and Power Authority Act, RSBC 1996, c. 212WHEREAS:
"BC TEL" means BC TEL, and its successors and assigns.
"Final Agreement" means the Nisga'a Final Agreement between the Nisga'a Nation, Canada and British Columbia.
"Hydro Access Roads" means trails or roads that provide access to a Hydro right of way or works, including surfacing, bridges, drainage and support works, and other works required to maintain the integrity of the travelled surface.
"Hydro Access Road Areas" means those portions of Nisga'a Lands as described in Schedule A attached to this Agreement.
"Hydro Purposes" means the transmission and distribution of electric energy and telecommunications.
This Agreement is made under the Final Agreement, and defined terms in the Final Agreement will have the same meaning in this Agreement.
The Nisga'a Nation grants to Hydro, and its employees, representatives, agents, contractors, licensees and assignees, the full, free and uninterrupted right, liberty and right of way, as follows:(a) to construct, operate, maintain, repair, alter, upgrade, remove and replace Hydro Access Roads, and remove and trim trees, vegetation and obstructions, on the Hydro Access Road Areas;
(b) to install, maintain and use gates in all fences constructed by others which are now or hereafter shall be on the Hydro Access Road Areas;
(c) to pass and repass over the Hydro Access Road Areas with or without equipment, machinery and materials as reasonably required by Hydro; and
(d) to generally do all acts or things necessary in connection with the foregoing.
This Agreement will not entitle Hydro to exclusive possession of the Hydro Access Road Areas or other parts of the Nisga'a Lands and the Nisga'a Nation reserves the right to grant other dispositions of the Hydro Access Road Areas so long as the grant does not materially affect the exercise of Hydro's rights under this Agreement.
In respect of a Hydro Access Road Area, the rights, liberties and rights of way granted under this Agreement are for so long as required and will terminate, without compensation to Hydro, when:(a) the Hydro right of way that the Hydro Access Road Area serves terminates; or
(b) Hydro no longer requires the Hydro Access Road Areas, and:(i) Hydro gives 90 days written notice to the Nisga'a Nation; or
(ii) the Nisga'a Nation gives 90 days written notice to Hydro.
Except in an emergency, Hydro will provide to the Nisga'a Nation a written work plan describing proposed work on or related to a Hydro Access Road Area prior to undertaking the construction or development of any Hydro Access Road. Hydro will provide the work plan in time to afford the Nisga'a Nation the opportunity to comment, and Hydro will use reasonable efforts to accommodate any suggestions or requests presented by the Nisga'a Nation provided they do not result in significant increased costs.
Hydro will undertake activities permitted under this Agreement having regard for the impact on the environment, and will take prudent measures to minimize damage or disruption to the environment.
Hydro, and its employees, representatives, agents, contractors, licensees and assignees, may enter onto Nisga'a Lands outside the Hydro Access Road Areas for the purpose of undertaking works to protect Hydro Access Roads, or to protect persons and property, as follows:
(a) Hydro will before commencing any work deliver a written work plan describing the effect and extent of the proposed work on Nisga'a Lands to the Nisga'a Nation for approval;Notwithstanding other provisions of this paragraph or this Agreement, in an emergency Hydro may undertake works and take steps on Nisga'a Lands as are reasonably required to be taken immediately in order to protect Hydro Access Roads, and in that event Hydro will as soon as reasonably possible notify the Nisga'a Nation in writing.
(b) the Nisga'a Nation will not unreasonably withhold approval of the work plan, considering the effect of the proposed work, including the cost of the proposed works compared to the cost of alternate solutions, the extent of the risk of not undertaking the work, and the impact on the Nisga'a Lands. If Hydro and the Nisga'a Nation cannot agree on a work plan requested by Hydro within 30 days of receipt by the Nisga'a Nation of the proposed work plan, then either party may refer the disagreement to dispute resolution under Paragraph 14 of this Agreement;
(c) Hydro will minimize the damage to and time spent on Nisga'a Lands;
(d) Hydro will pay fair compensation, as defined in the Final Agreement, for any interference with or damage to adjacent Nisga'a Lands.
If the Nisga'a Nation requires a portion of a Hydro Access Road Area for another purpose, then upon request by the Nisga'a Nation, Hydro will relocate any Hydro Access Road Area, including the related Hydro Access Road, to a new location as follows:(a) the relocation will proceed only if the new location is reasonably suitable for use for a Hydro Access Road considering construction, maintenance and operation and costs; andThe Nisga'a Nation will extend a Hydro Access Road Area as reasonably required, so that the extended Hydro Access Road Area has similar priority over other charges and encumbrances as the original. When a portion of a Hydro Access Road Area is relocated, then the Hydro Access Road Area for the portion that is abandoned will be terminated.
(b) the Nisga'a Nation will give reasonable notice to permit design, planning and construction of the Hydro Access Road to be relocated; and
(c) the Nisga'a Nation will pay all reasonable costs, including costs of design, supervision and construction.
Hydro will indemnify and save harmless the Nisga'a Nation from and against all losses, damages, costs, liabilities, claims, expenses, and suits, including fees of solicitors and other professional advisors, arising out of:
(a) any breach, violation or non-performance by Hydro of any of Hydro's covenants, conditions or obligations under this Agreement; andbut not for any claims based on nuisance or the rule in Rylands v Fletcher unless Hydro was negligent.
(b) any personal injury, death, or property damage, including environmental damage, occurring on or to Nisga'a Lands arising from Hydro's use or occupation of Nisga'a Lands under this Agreement,
Hydro covenants with the Nisga'a Nation:(a) to pay compensation to the Nisga'a Nation for any damage to buildings, crops (except for trees in the Hydro Access Road Areas), livestock, drains, ditches, culverts, fences, trails, bridges, roads and fruit, nut or ornamental trees caused by Hydro;
(b) despite subparagraph (a), to pay compensation to its owner, in accordance with generally accepted principles of timber valuation, for all merchantable timber cut or damaged by Hydro on Nisga'a Lands on or adjacent to the Hydro Access Road Areas, and the parties agree that, on payment, title to any timber cut on the Nisga'a Lands under this Agreement vests in Hydro;
(c) to pay and discharge when due all applicable taxes, levies, charges and assessments now or hereafter assessed, levied or charged to the account of Hydro which relate to the Hydro Access Road Areas and which Hydro is liable to pay;
(d) to keep the Hydro Access Road Areas in a safe, clean and sanitary condition to the extent the condition relates to Hydro's use or occupation, and on written notice from the Nisga'a Nation to make safe, clean and sanitary any portion of the Hydro Access Road Areas that contravene the provisions of this covenant, provided that Hydro has no obligation to keep the Hydro Access Roads suitable for use by anyone except Hydro;
(e) not to disturb or interfere with any survey monuments, bars or iron pins located on the Nisga'a Lands including the Hydro Access Road Areas;
(f) not to bury debris or rubbish of any kind on Nisga'a Lands in excavations or backfill, and to remove shoring and similar temporary structures as backfilling proceeds;
(g) to bury and maintain all underground works as may be required so as not to unduly interfere with the drainage of Nisga'a Lands;
(h) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Hydro Access Road Areas, or anything that may be or become a nuisance or annoyance to the owners of the Nisga'a Lands, except to the extent necessary to carry out any of the matters under this Agreement;
(i) to observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any competent governmental authority which relate to the Hydro Access Road Areas;
(j) to permit the Nisga'a Nation to enter upon the Hydro Access Road Areas at any time to examine its condition;
(k) if for any reason this Agreement terminates with respect to a portion of the Hydro Access Road Areas, to:(i) quit peaceably that portion of the Hydro Access Road Areas; andand to the extent necessary, this covenant will survive the termination of this Agreement; and
(ii) decommission any Hydro Access Roads on, and restore the surface of, that portion of the Hydro Access Road Areas to a condition to which similar lands are typically restored in British Columbia, unless otherwise agreed to in writing by the Nisga'a Nation and Hydro at the time of restoration;(l) if Hydro, or its employees, representatives, agents, contractors, licensees or assignees, discover any archaeological material on the Hydro Access Road Areas, to take all reasonable steps and precautions to minimize disturbance of that material, and to immediately notify the Nisga'a Nation.
The Nisga'a Nation covenants with Hydro:
(a) not to use or authorize the use of the Hydro Access Road Areas for any purpose, including the construction of any improvements, that in the reasonable opinion of Hydro would be unsafe or would interfere with Hydro's use of the Hydro Access Road Areas; and
(b) not to intentionally do or authorize any act or thing that injures or endangers the Hydro Access Roads.
Hydro will not licence the use of the Hydro Access Road Areas, in whole or in part, without the prior written consent of the Nisga'a Nation provided that:(a) Hydro may grant a licence to BC Tel for the use of the Hydro Access Road Areas without the consent of the Nisga'a Nation;
(b) the Nisga'a Nation may attach conditions to its consent to any licence, including the provision of insurance and security, in a form and amount acceptable to the Nisga'a Nation; and
(c) no licence will act as a release of any of Hydro's obligations as set out in this Agreement.
Any dispute arising out of or in connection with this Agreement will be resolved as follows:(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 of competent jurisdiction 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 a court of competent jurisdiction
If notice is required or permitted under this Agreement, the notice:
(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;
(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.
This Agreement runs with and binds Nisga'a Lands, to the extent reasonably necessary to give full force and effect to this Agreement.
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.
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.
The terms and provisions of this Agreement will extend to, be binding upon and enure to the benefit of the parties and their successors and assigns.
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 this 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.
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY
SCHEDULE A - DESCRIPTION OF HYDRO ACCESS ROAD AREAS