GRANT OF RIGHT OF WAY AND LICENCE FOR TELECOMMUNICATIONS TO BC TEL
This Agreement is dated _______________________________,
______________
BETWEEN:
NISGA'A NATION
[insert address]
(the "Nisga'a Nation")
AND:
BC TEL, a corporation under the laws
of Canada
[insert address]
("BC TEL")
WHEREAS:
- The Nisga'a Nation, Canada and British Columbia
have entered into the Nisga'a Final Agreement.
- The Nisga'a Nation wishes to grant to BC
TEL rights on Nisga'a Lands for BC TEL Works existing on Nisga'a
Lands on the effective date.
Therefore for good and valuable consideration
the Nisga'a Nation and BC TEL agree as follows:
Definitions
"Final Agreement" means the Nisga'a Final Agreement between
the Nisga'a Nation, Canada and British Columbia.
"BC TEL Purposes" means telecommunications.
"BC TEL Works" means poles, towers, antennae (except
for monopole free standing antennae), anchors, guy wires, brackets,
cross arms, insulators, transformers, overhead and underground
conductors, wires, lines and cables, underground conduits and
pipes, access nodes, all ancillary appliances and fittings,
reasonably required associated protective installations and
related works such as fencing for safety or security, devices
and identifying colours for aircraft warning, and utility services
for the operation of any of the foregoing.
"BC TEL Right of Way Area" means those portions of Nisga'a
Lands as described in Schedule A attached to this Agreement.
"Hydro" means British Columbia Hydro And Power Authority,
and its successors and assigns.
"Licensed BC TEL Works" means, collectively, any BC TEL
Works, and any access roads within the BC TEL Right of Way Area,
that, on the effective date, are located on Nisga'a Lands outside
of:
- a Crown road right of way area;
- a BC TEL Right of Way Area; or
- a right of way area granted to Hydro
on which BC TEL is Hydro's licensee;
- an area in respect of which, on the
effective date, the Nisga'a Nation grants BCTEL rights under
a separate instrument.
Relationship to Final Agreement
This Agreement is made under the Final Agreement, and defined
terms in the Final Agreement will have the same meaning in this
Agreement.
Rights on BC TEL Right of Way Area
The Nisga'a Nation grants to BC TEL, and its employees, representatives,
agents, contractors, licensees and assignees, the full, free
and uninterrupted right, liberty and right of way, for BC TEL
Purposes, as follows:
- to construct, excavate for, erect, string, or otherwise
install, operate, maintain, repair, alter, upgrade, remove
and replace BC TEL Works over, upon and under the BC TEL Right
of Way Area;
- to trim or remove all or any trees, growth
or vegetation now or hereafter on the BC TEL Right of Way
Area that may in the reasonable opinion of BC TEL create a
hazard or interfere with the BC TEL Works or the carrying
out of any of the BC TEL Purposes, except that BC TEL shall
take all reasonable steps, including where appropriate planting
of suitable replacement vegetation, to avoid erosion or other
damage;
- to conduct vegetation management
upon the BC TEL Right of Way Area, such as the planting of
vegetation compatible with use for BC TEL Purposes, and the
application of herbicides and pesticides provided that:
- BC TEL will not conduct any aerial
application of herbicides or pesticides on the BC TEL
Right of Way Area or other Nisga'a Lands; and
- BC TEL will obtain all permits and
approvals as required by authorities having jurisdiction,
including any such permits or approvals required by the
Nisga'a Nation, for the use of any herbicides or pesticides;
- to clear the BC TEL Right of Way Area
and keep it cleared of all or any part of any obstructions
that may in the reasonable opinion of BC TEL create a hazard
or interfere with the BC TEL Works or the carrying out of
any of the BC TEL Purposes;
- to install, maintain and use gates in
all fences constructed by others which are now or hereafter
shall be on the BC TEL Right of Way Area;
- to pass and repass over the BC TEL Right
of Way Area with or without equipment, machinery and materials
as reasonably required by BC TEL, and to construct, maintain,
repair, replace and use trails, roads and bridges on the BC
TEL Right of Way Area as reasonably required to obtain access
to the BC TEL Works; and to generally do all acts or things
necessary in connection with the foregoing.
Non Exclusive Use
This Agreement will not entitle BC TEL to exclusive possession
of the BC TEL Right of Way Area or other parts of the Nisga'a
Lands and the Nisga'a Nation reserves the right to grant other
dispositions of the BC TEL Right of Way Area so long as the
grant does not materially affect the exercise of BC TEL's rights
under this Agreement.
Hydro
BC TEL will cooperate and enter into agreements with Hydro in
the same manner as Hydro and BC TEL cooperate and enter into
agreements elsewhere in British Columbia, to share the use of
poles, ducts and other works.
Licence For BC TEL Works Located
Outside Rights of Way
The Nisga'a Nation grants to BC TEL, and its employees, representatives,
agents, contractors, licensees and assignees, as of the effective
date, a licence for all Licensed BC TEL Works to use and occupy
Nisga'a Lands on the following terms:
- the licence is irrevocable so long as
BC TEL requires the use of the Licensed BC TEL Works for
BC TEL Purposes, unless the Licensed BC TEL Works are included
within a Crown road right of way area or BC TEL Right of
Way Area under this paragraph;
- for the Licensed BC TEL Works, BC TEL
holds the same rights, privileges and obligations, including
all indemnity obligations, as apply to BC TEL for the use
of the BC TEL Right of Way Area under this Agreement, and
including the right of reasonable access onto the Nisga'a
Lands for the purpose of gaining access to the Licensed
BC TEL Works;
- if at any time in the course of maintenance
or operations BC TEL replaces or makes significant repairs
to Licensed BC TEL Works which are adjacent to a Crown road
right of way area or a BC TEL Right of Way Area then, upon
written notice from the Nisga'a Nation and provided the
relocation does not result in significant increased costs,
and for a Crown road right of way area if the relocation
is acceptable to British Columbia, BC TEL will relocate
the Licensed BC TEL Works on to the adjacent right of way
area, and the licence for those Licensed BC TEL Works will
be terminated;
- the Nisga'a Nation may at any time at
no cost to BC TEL require BC TEL to enter into an agreement
to extend the BC TEL Right of Way Area so as to incorporate
within the BC TEL Right of Way Area any Licensed BC TEL
Works designated by the Nisga'a Nation and upon the appropriate
extension of the BC TEL Right of Way Area the licence for
those Licensed BC TEL Works will be terminated;
- the Nisga'a Nation may at any
time require BC TEL to relocate Licensed BC TEL Works designated
by the Nisga'a Nation to another location on Nisga'a Lands
including on to an adjacent Crown road right of way area
if acceptable to British Columbia, or to a BC TEL Right
of Way Area and in that event:
- if the new location is reasonably
suitable for use for BC TEL Works considering construction,
maintenance and operation and costs BC TEL will proceed
with the relocation;
- the Nisga'a Nation will give reasonable
notice to permit design, planning and construction of
the BC TEL Works to be relocated;
- the Nisga'a Nation will pay all
reasonable costs, including costs of design, supervision
and construction; and
- upon relocation, this licence is
extended to the relocated BC TEL Works, except if the
relocated BC TEL Works are located on a Crown road right
of way area or a BC TEL Right of Way Area, then the
license for those BC TEL Works will be terminated.
Duration
The rights, liberties and rights of way granted under this Agreement
are for so long as required and will terminate, without compensation
to BC TEL, when BC TEL no longer requires the BC TEL Right of
Way Area, and:
- BC TEL gives 90 days written notice
to the Nisga'a Nation; or
- the Nisga'a Nation gives 90 days written
notice to BC TEL.
Work Plans For BC TEL Works
Except in an emergency BC TEL will provide to the Nisga'a Nation
a written work plan describing proposed work on or related to
a BC TEL Right of Way Area prior to undertaking any of the following
work:
- installation of any new telecommunication
lines;
- relocation of any telecommunication
lines;
- trimming or removal of any trees, growth
or vegetation on or adjacent to a BC TEL Right of Way Area;
- constructing any new trails, roads or
bridges on the BC TEL Right of Way Area.
BC TEL will provide the work plan in
time to afford the Nisga'a Nation the opportunity to comment,
and BC TEL 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.
Insurance and Security
If British Columbia requires BC TEL to carry insurance, to provide
security, or both, in relation to rights of way granted to BC
TEL by British Columbia, then on request of the Nisga'a Nation,
BC TEL will obtain insurance, security, or both, for the benefit
of the Nisga'a Nation on terms substantially the same as required
by British Columbia.
Access to BC TEL Rights of Way
If for any reason BC TEL is unable to obtain reasonable access
to any BC TEL Works from the BC TEL Right of Way Area, a Crown
road, a Nisga'a road or a BC TEL private access right of way,
then the Nisga'a Nation will, where land access is reasonably
practicable, on application from BC TEL, grant BC TEL the right
to cross Nisga'a Lands to provide BC TEL access on terms substantially
the same as contained in Document 3 of Appendix C-4 to the Final
Agreement.
Protection of the Environment
BC TEL 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.
Replacement Right of Way
If a material change occurs to lands which for any reason makes
the continued use of any portion of the BC TEL Right of Way
Area unsuitable for the BC TEL Purposes, then the Nisga'a Nation
will, without charge, grant a replacement right of way to BC
TEL for construction of the replacement BC TEL Works, as follows:
- BC TEL will, before undertaking any
work, deliver a work plan to the Nisga'a Nation indicating
the location of the contemplated replacement right of way
area, for approval by the Nisga'a Nation which approval
will not be unreasonably withheld;
- BC TEL will take into account the effect
of the replacement right of way area on adjacent Nisga'a
Lands, and any unique aspects of these lands, and the Nisga'a
Nation will take into account the cost efficiencies of the
location selected by BC TEL for a replacement right of way
area in relation to alternative locations;
- the replacement right of way agreement
will be on the same terms and conditions as this Agreement,
and the Nisga'a Nation will use its best efforts to ensure
that the replacement right of way has the same priority
over other charges and encumbrances as this Agreement;
- BC TEL will execute a release of this
Agreement in relation to the portions of the abandoned BC
TEL Right of Way Area.
Despite any provision of this paragraph,
in an emergency BC TEL may, without approval from the Nisga'a
Nation, enter on to Nisga'a Lands to undertake all work and
take all steps as are reasonably required to be taken immediately
in order to restore electrical and telecommunication services,
or to ensure safety of persons and property that may be at risk
from BC TEL Works. BC TEL will give notice as soon as reasonably
possible to the Nisga'a Nation of any emergency entry.
Entry on Nisga'a Lands outside
the BC TEL Right of Way Area
BC TEL, and its employees, representatives, agents, contractors,
licensees and assignees, may enter onto Nisga'a Lands outside
the BC TEL Right of Way Area for the purpose of undertaking
works to protect BC TEL Works, or to protect persons and property
that may be at risk from BC TEL Works, as follows:
- BC TEL 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;
- 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 BC TEL and the Nisga'a Nation cannot
agree on a work plan requested by BC TEL 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 21 of this Agreement;
- BC TEL will minimize the damage to and
time spent on Nisga'a Lands;
- BC TEL will pay fair compensation, as
defined in the Final Agreement, for any interference with
or damage to adjacent Nisga'a Lands.
Notwithstanding other provisions of
this paragraph or this Agreement, in an emergency BC TEL may
undertake works and take steps on Nisga'a Lands as are reasonably
required to be taken immediately in order to protect BC TEL
Works, or to protect persons and property that may be at risk
from BC TEL Works, and in that event BC TEL will as soon as
reasonably possible notify the Nisga'a Nation in writing.
Entry on Nisga'a Lands outside the Crown roads right of
way area
The parties' rights and obligations as set out in paragraph
13 apply with respect to BC TEL Works located on a Crown road
right of way area.
Relocation of BC TEL Works
If the Nisga'a Nation requires a portion of a BC TEL Right of
Way Area for other purposes, then upon request by the Nisga'a
Nation, BC TEL will relocate any BC TEL Right of Way Area including
the related BC TEL Works, to a new location as follows:
- the relocation will proceed only if
the new location is reasonably suitable for use for BC TEL
Works considering construction, maintenance and operation
and costs; and
- the Nisga'a Nation will give reasonable
notice to permit design, planning and construction of the
BC TEL Works to be relocated; and
- the Nisga'a Nation will pay all reasonable
costs, including costs of design, supervision and construction.
The Nisga'a Nation will extend the BC
TEL Right of Way Area as reasonably required, so that the extended
BC TEL Right of Way Area has similar priority over other charges
and encumbrances as the original. When a portion of a BC TEL
Right of Way Area is relocated then the BC TEL Right of Way
Area for the portion that is abandoned will be terminated.
Indemnity
BC TEL 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:
- any breach, violation or non-performance
by BC TEL of any of BC TEL's covenants, conditions or obligations
under this Agreement; and
- any personal injury, death, or property
damage, including environmental damage, occurring on or
to Nisga'a Lands arising from BC TEL's use or occupation
of Nisga'a Lands under this Agreement.
Covenants of BC TEL
BC TEL covenants with the Nisga'a Nation:
- to pay compensation to the Nisga'a Nation
for any damage to buildings, crops (except for trees in
the BC TEL Right of Way Area), livestock, drains, ditches,
culverts, fences, trails, bridges, roads and fruit, nut
or ornamental trees caused by BC TEL;
- 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 BC TEL on Nisga'a Lands on or adjacent to the
BC TEL Right of Way Area, and the parties agree that, on
payment, title to any timber cut on the Nisga'a Lands under
this Agreement vests in BC TEL;
- to pay and discharge when due all applicable
taxes, levies, charges and assessments now or hereafter
assessed, levied or charged to the account of BC TEL which
relate to the BC TEL Right of Way Area and which BC TEL
is liable to pay;
- to keep the BC TEL Right of Way Area,
and any BC TEL Works, in a safe, clean and sanitary condition
to the extent the condition relates to BC TEL's use or occupation
of the BC TEL Right of Way Area, and on written notice from
the Nisga'a Nation, to make safe, clean and sanitary any
portion of the BC TEL Right of Way Area, or the BC TEL Works
that contravene the provisions of this covenant;
- not to disturb or interfere with any
survey monuments, bars or iron pins located on the Nisga'a
Lands including the BC TEL Right of Way Area;
- 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;
- to bury and maintain all underground
works as may be required so as not to unduly interfere with
the drainage of the Nisga'a Lands;
- not to commit or suffer any wilful or
voluntary waste, spoil or destruction on the BC TEL Right
of Way Area, 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 BC TEL Purposes;
- 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 BC TEL Right of Way Area;
- to permit the Nisga'a Nation to enter
upon the BC TEL Right of Way Area at any time to examine
its condition;
- if for any reason this Agreement
terminates with respect to a portion of the BC TEL Right
of Way Area, to:
- quit peaceably that portion of the
BC TEL Right of Way Area;
- decommission any BC TEL roads and
restore the surface of that portion of the BC TEL Right
of Way Area to a condition to which similar lands are
typically restored in the Province of British Columbia,
unless otherwise agreed to in writing by the Nisga'a
Nation and BC TEL at the time of restoration;
- remove all above ground BC TEL Works
from that portion of the BC TEL Right of Way Area within
a reasonable period of time and in any event within
2 years, and any BC TEL Works remaining on that portion
of the BC TEL Right of Way Area will be absolutely forfeited
to and become the property of the Nisga'a Nation. If
the Nisga'a Nation removes any remaining above ground
BC TEL Works within 4 years, BC TEL will, on demand
by the Nisga'a Nation, reimburse the Nisga'a Nation
for all reasonable costs of removal; and
- remain liable for any environmental
damage to the Nisga'a Lands arising from any below ground
BC TEL Works that remain on or in that portion of the
BC TEL Right of Way Area after termination, except that
if the Nisga'a Nation uses or authorizes the use of
the remaining below ground BC TEL Works for any purpose
then BC TEL will not be liable for any environmental
damage caused by the Nisga'a Nation use, or authorized
use;
and to the extent necessary, this
covenant will survive the termination of this Agreement;
and
- if BC TEL, or its employees, representatives,
agents, contractors, licensees or assignees, discover any
archaeological material on the BC TEL Right of Way Area,
to take all reasonable steps and precautions to minimize
disturbance of that material, and to immediately notify
the Nisga'a Nation.
Covenants of the Nisga'a Nation
The Nisga'a Nation covenants with BC TEL:
- not to use or authorize the use of the
BC TEL Right of Way Area for any purpose, including the
construction of any improvements, that in the reasonable
opinion of BC TEL would be unsafe or would interfere with
BC TEL's use of the BC TEL Right of Way Area;
- not to carry out blasting or aerial
logging operations on or immediately adjacent to the BC
TEL Right of Way Area without the prior written permission
from BC TEL, which permission will not be unreasonably withheld
or delayed; and
- not to intentionally do or authorize
any act or thing that injures or endangers the BC TEL Works.
Licence
BC TEL will not licence the use of the BC TEL Right of Way Area,
in whole or in part, without the prior written consent of the
Nisga'a Nation provided that:
- BC TEL may, despite any limitations
in the grants and authorizations to BC TEL in this Agreement,
grant a licence to Hydro for the use of the BC TEL Right
of Way Area for the transmission and distribution of electric
energy and telecommunications, without the consent of the
Nisga'a Nation. Any licence to Hydro will be deemed to include
the right, exclusively for Hydro's benefit, to remove any
tree located on Nisga'a Lands which by falling or otherwise
may endanger any of Hydro's works, and, except in an emergency,
Hydro will be required to give the Nisga'a Nation prior
written notice of the exercise of this right outside the
BC TEL Right of Way Area;
- 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
- no licence will act as a release of
any of BC TEL's obligations as set out in this Agreement.
Assignment
Despite paragraph 19, BC TEL may, without the consent of the
Nisga'a Nation, assign its interest in this Agreement to an
affiliate (as defined in the Company Act ) of BC TEL provided
that BC TEL gives 120 days notice in writing of this change.
Disputes
Any dispute arising out of or in connection with this Agreement
will be resolved as follows:
- the parties will attempt to resolve
disputes by good faith negotiations, including timely disclosure
of all relevant facts, information and documents;
- 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;
- 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;
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.
Notice
If notice is required or permitted under this Agreement, the
notice:
- must be in writing;
- must be delivered to the address set
out above, or other address as specified in writing by a
party;
- may be given in one or more of
the following ways:
- delivered personally or by courier,
and it will be deemed received on the next business
day;
- delivered by fax, and it will be
deemed received on the next business day; or
- mailed by pre-paid post in Canada,
and it will be deemed received on the eighth business
day following.
Runs With the Land
This Agreement runs with and binds Nisga'a Lands, to the extent
reasonably necessary to give full force and effect to this Agreement.
Waiver and Consent
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.
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.
Successors and Assigns
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.
Interpretation
In this Agreement:
- all attached schedules form an integral
part of this Agreement;
- unless the context otherwise requires,
the singular includes the plural and the masculine include
the feminine gender, body politic and a corporation;
- 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;
- 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
- 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.
IN WITNESS THEREOF the parties have duly executed
this Agreement, as of the date first referred to above.
NISGA'A NATION
Per:
Per:
BC TEL
Per:
Per:
SCHEDULE A - DESCRIPTION
OF BC TEL RIGHT OF WAY AREA
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Nisga'a Final
