GRANT OF PRIVATE ROAD
EASEMENT
THIS AGREEMENT is dated _______________________________,
_____________
BETWEEN:
[NISGA'A NATION or NISGA'A VILLAGE]
(TO BE DETERMINED ON EXECUTION)
[insert address]
(the "Owner")
AND:
[insert address]
(the "Grantee")
WHEREAS:
- The Grantee wishes an easement over the
Servient Lands to provide access to the Grantee's Property.
- The Owner is willing to grant to the Grantee
an easement over the Servient Lands to provide access to the
Grantee's Property.
Therefore in consideration of the payment
of the fee to be paid by the Grantee, and the Grantee's covenants
as set out in this Agreement, the Owner and Grantee agree as follows:
Definitions
"Grantee's Property" means the lands described in Schedule
A attached to this Agreement.
"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.
Rights and Privileges on Easement Area
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.
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.
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.
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.
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.
Covenants of the Grantee
The Grantee covenants with the Owner:
- 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;
- 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;
- 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;
- 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;
- not to bury debris or rubbish of any
kind on the Easement Area;
- 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;
- 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;
- 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:
- any breach, violation or non-performance
of any covenant, condition or obligation under this
Agreement by the Grantee; and
- any personal injury, death, or property
damage, arising out of the Grantee's use or occupation
of the Easement Area under this Agreement,
and 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.
- 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;
- to permit the Owner or its authorized
representative to enter upon the Easement Area at any time
to examine its condition;
- 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;
- on the expiration or at the earlier
cancellation of this Agreement:
- to quit peaceably and deliver possession
of the Easement Area to the Owner;
- 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;
and to the extent necessary, this
covenant shall survive the expiration or cancellation of
this Agreement;
- 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;
- 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;
- 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
- 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.
Cancellation
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:
- 30 days; or
- 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
then 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.
Relocation of Easement Area
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:
- 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;
- grant a replacement Agreement for the
alternate road on the same terms as this Agreement; and
- by further written notice to the Grantee
cancel this Agreement;
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).
Third Party Notice
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.
Ownership of Commercially Valuable Timber
All timber of commercial value on the Easement Area will remain
the property of the Owner.
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:
- the Grantee will maintain the
Security in full until the later of:
- the termination of this Agreement;
or
- the complete fulfillment of all
of the Grantee's obligations under this Agreement;
- 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.
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 the courts;
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.
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; and
- 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.
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.
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.
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 the 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:
GRANTEE
Per:
(authorized signatory of Grantee)
SCHEDULE A - DESCRIPTION
OF GRANTEE'S PROPERTY
SCHEDULE B - DESCRIPTION
OF BOTH SERVIENT LANDS AND EASEMENT AREA
SCHEDULE C - SPECIAL CONDITIONS
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Nisga'a Final
