British Columbia Bill 51 (Government) — 36th Parliament, 3rd Session — Previous Version 1

36-3 Gov Bill 51-1

British Columbia — Bills

c) Queen's Printer,

Victoria, British Columbia, Canada

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1998 Legislative Session: 3rd Session, 36th Parliament

FIRST READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

BILL 51: NIS G A'A FINAL AGREEMENT ACT – APPENDICES

APPENDIX C - 2

Appendix C - 2

APPLICABLE FORMS OF DOCUMENT FOR EXISTING

INTERESTS LISTED IN

PART 1 OF APPENDIX C - 1

Document 1

Licence of Occupation for Communication Site

Document 2

Licence of Occupation for Provincial Communication Site

Document 3

Licence of Occupation for Communication Site with Utility Access

Document 4

Licence of Occupation for Communication Site with Road Access

Document 5

Licence of Occupation for Communication Site with Road Access and

Utility Access

Document 6

Licence of Occupation for Hydro Communication Site

Document 7

Licence of Occupation for Forestry Experimental Plots

Document 8

Licence of Occupation for a Hydrometric Station

Document 9

Licence of Occupation for a Navigational Light

Document 10

Licence of Occupation for Telephone Exchange

Document 11

Permit of Occupation for Waterworks

Document 12

Special Use Permit for Forestry Operations

Document 13

Leases (not published)

Appendix C - 2

Document 1

License of Occupation for Communication Site

THIS AGREEMENT made this __________ day of ____________________ , 199

BETWEEN:

NIS G A'A NATION , of

____________________

(the "Owner")

AND:

of ____________________

(the "Licensee")

Whereas the Owner has agreed to grant to the Licensee a license to enter on and use

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:

Article 1 - Grant of License

1.1 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 and

maintaining for communication purposes any building, tower, road, antennae, powerline or

other physical infrastructure shown in the site plan and site elevation drawing forming

part of the Legal Description

Schedule (the "Civil Infrastructure").

Article 2 - Duration

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

Article 6.

2.2 Notwithstanding anything to the contrary in this license,

so long as:

(

a) the Licensee is not in default of any of the material terms or

conditions of this license; and

(

b) the Licensee has given the Owner, not more than · days prior to

the expiration of the term herein granted, notice in writing of the Licensee's wish to

re-apply for a new license to enter on and use the Land

the Owner may agree to offer a new license to the Licensee by

and contained in the notice. The Licensee shall have a period of 60 days from the date of

receipt of the notice from the Owner to accept a new license to enter on and use the Land

by executing the new license contained in the notice and delivering it to the Owner.

Article 3 - License Fee

3.1 The Licensee shall pay to the Owner an annual license fee

during the term of this license, in advance, as follows:

(

a) during the first five years of the term of this license (the

"Initial Fee Period"), the Licensee shall pay to the Owner:

(

i) on the Commencement Date, the sum of · ; and

(ii) on each annual anniversary of the Commencement Date during

the Initial Fee Period, a sum equal to the greater of:

(1) the annual license fee for the immediately preceding year; and

(2) the amount which would be payable on that date under the then-

existing policies of the Province of British Columbia with respect to the payment of rent

for communication sites located on similar Crown Land (the "Provincial

Policies"); and

(

b) during each subsequent five year period over the term of this

license (a "Subsequent Fee Period"), the Licensee shall pay to the Owner on each

annual anniversary of the Commencement Date a sum equal to the greatest of:

(

i) the annual license fee for the immediately preceding year,

(ii) the amount which would be payable on that date under the

then-existing Provincial Policies, or

(iii) the annual fair market rent for the Subsequent Fee Period,

if that annual fair market rent has been determined:

(1) by written agreement between the Owner and the Licensee prior to the

Subsequent Fee Period; or

(2) pursuant to the dispute resolution process set out in

Article 10,

invoked by the Owner or the Licensee prior to the Subsequent Fee Period.

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:

(

a) belonging to the Licensee; or

(

b) not available for use by the Licensee.

Article 4 - Covenants of the Licensee

4.1 The Licensee covenants with the Owner:

(

a) to pay the license fee due at the address of the Owner set out

above or at such other place as the Owner may specify from time to time by the giving of

notice to the Licensee in accordance with

Article 8;

(

b) to pay and discharge when due all applicable taxes, levies,

charges and assessments now or hereafter assessed, levied or charged that relate to the

Land or any of the Licensee's improvements thereon (the "Realty Taxes") that the

Licensee 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 in

any way affecting the Land 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 Land or do or suffer to be done thereon by its employees, contractors,

agents, invitees or anyone for whom the Licensee is responsible at law anything that may

be or become a nuisance to the Owner or to the occupiers of adjoining land;

(

e) to deliver to the Owner from time to time, upon demand, proof of

insurance provided for in subsection (k), receipts or other evidence of payment of Realty

Taxes, insurance premiums and other monetary obligations of the Licensee required to be

observed by the Licensee pursuant to this license;

(

f) 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 agreement in this license by the Licensee, or

(ii) any personal injury, death or property damage arising out of

the Licensee's use and occupation of the Land

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;

(

g) to keep the Land in a safe, clean and sanitary condition

satisfactory to the Owner acting reasonably, and to make safe, clean and sanitary any

portion of the Land or any improvement thereon that the Owner, acting reasonably, may

direct by notice in writing to the Licensee;

(

h) to permit the Owner or its authorized representative to enter

upon the Land at any time to examine its condition;

(

i) to use and occupy the Land in accordance with the provisions of

this license including those set forth in the

schedule attached and entitled "Special

Provisos";

(

j) on the expiration or at the earlier cancellation of this license:

(

i) to quit peaceably and deliver possession of the Land to the

Owner,

(ii) to remove from the Land all above-ground buildings,

machinery, plant equipment and apparatus and all other improvements to or things on the

Land erected or placed on the Land by the Licensee, and

(iii) to restore the surface of the Land to the satisfaction of

the Owner acting reasonably,

and to the extent necessary, this covenant shall survive the

expiration or cancellation of this license;

(

k) to effect and keep in force during the term insurance protecting

the Owner and the Licensee (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 Land to an amount not less

than $1,000,000.00; except, however, that the Owner may, in its sole discretion, waive the

requirements of this subsection on the delivery to the Owner of evidence that the Licensee

is self insured;

(

l) notwithstanding subsection (k), the Owner may from time to time

notify the Licensee that the amount of insurance posted by the Licensee pursuant to that

subsection be changed and the Licensee shall, within 60 days of receiving such notice,

cause the amount of insurance posted, pursuant to subsection (

k) to be changed to the

amount specified by the Owner, acting reasonably, in the notice and deliver to the Owner

written confirmation of the change, except that when the Licensee is self-insuring this

section shall not apply;

(

m) not to interfere with the activities, works or other improvements

of any other person who enters on or uses or occupies the Land 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 Land, in accordance with

Section 9.3; and

(

n) on request of the Owner, to provide to the Owner an inventory of

communication uses sufficient to allow the calculation of fees under the Provincial

Policies.

Article 5 - Assignment

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 a part of the Land

to an affiliate (as defined in the Company Act, RSBC 1996) of the Licensee 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.

5.3 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 license.

Article 6 - Cancellation

6.1 If 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:

(a) 30 days; or

(b) 150 days, if the failure because of its nature would reasonably

require more than 30 days to cure, and provided that the Licensee is proceeding diligently

and continuously to cure the failure throughout

then the Owner may cancel this license and, notwithstanding

subsection 4.1 (j), any fixtures to the Land shall become, at the discretion of the Owner,

the property of the Owner.

6.2 If this license is taken in execution or attachment by

any person, or the Licensee commits

an act of bankruptcy, becomes insolvent, 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 If 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 If 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 that 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 that 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

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 4.1 (j), any building,

machinery, plant, equipment, apparatus or other improvements to the Land (collectively,

the "Improvements") that remains unremoved from the Land:

(

a) upon the cancellation of this license pursuant to

section 6.1,

section 6.4 or

section 6.6; or

(

b) thirty days after the expiration of this license or the

cancellation of this license pursuant to

section 6.2 or

section 6.3 (provided that if

further time is reasonably required because of the nature of the Improvements or because

of other constraints beyond the control of the Licensee, including weather, and provided

that the Licensee is proceeding diligently and continuously to remove such Improvements,

the 30 day time for removal will be extended to 150 days after the expiration or

cancellation of this license),

shall, at the discretion of the Owner, be forfeited to and

become the property of the Owner.

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.

6.9 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.

Article 7 - Security

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. The Owner may, in

its sole discretion, waive the requirements of this section.

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.

7.4 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 while Security is waived under

section 7.1 this

section shall not apply.

Article 8 - Notice

8.1 Whenever 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 or the Licensee, as the case may be, 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. 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.

8.2 Either party may, by notice in writing to the other,

specify another address for service of notices under this license and after another

address has been specified under this section, notices shall be mailed to that address in

accordance with this Article.

Article 9 - Miscellaneous

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, for any purpose, grant to others interests in

the Land or rights to enter on or use or occupy the Land, or may otherwise authorize other

persons to enter on or use or occupy the Land, so long as the grant or authorization 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. If the Owner, by written instrument, grants

a license, right or interest to others to use or occupy the Land, such grant will contain

a provision identical to subsection 4.1 (

g) of this license obligating the new

grantee to keep the Land in a safe, clean and sanitary condition satisfactory to the

Owner.

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.

9.5 Time is of the essence in this agreement.

Article 10 - Dispute Resolution

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, the

dispute shall be referred to and finally resolved by arbitration before a single

arbitrator under the arbitration rules of procedure of the BCICAC.

10.5 If the BCICAC is unavailable or unable to administer the

mediation or arbitration of a dispute under its rules of procedure, the parties will

select the rules of another institution.

Article 11 -

Interpretation

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 and sections of this license

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 signatory of

in the presence of:

____________________

Name

____________________

Authorized Signatory

____________________

Address

____________________

SIGNED by a duly authorized signatory of

in the presence of:

____________________

Name

____________________

Authorized Signatory

____________________

Address

____________________

LEGAL DESCRIPTION

SCHEDULE

1. Legal Description

2. Sketch Plan

SPECIAL PROVISOS

SCHEDULE

Special Provisos:

(1) The Licensee shall comply with the provisions of his Radio Station License issued

by Communications Canada and any subsequent amendments to that license.

(2) The Licensee shall inform the Owner of any amendments to his Radio Station License.

Appendix C - 2

Document 2

License of Occupation for Provincial Communication Site

THIS AGREEMENT made this __________ day of ____________________ , 199

BETWEEN:

NIS G A'A NATION , of

____________________

(the "Owner")

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA , as

represented by the Minister of Transportation and Highways of

of ____________________

(the "Licensee")

Whereas the Owner has agreed to grant to the Licensee a license to enter on and use

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:

Article 1 - Grant of License

1.1 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 and

maintaining for communication purposes any building, tower, road, antennae, powerline or

other physical infrastructure shown in the site plan and site elevation drawing forming

part of the Legal Description

Schedule (the "Civil Infrastructure").

Article 2 - Duration

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

Article 6.

2.2 Notwithstanding anything to the contrary in this license,

so long as:

(

a) the Licensee is not in default of any of the material terms or

conditions of this license; and

(

b) the Licensee has given the Owner, not more than · days prior to

the expiration of the term herein granted, notice in writing of the Licensee's wish to

re-apply for a new license to enter on and use the Land

the Owner may agree to offer a new license to the Licensee by

and contained in the notice. The Licensee shall have a period of 60 days from the date of

receipt of the notice from the Owner to accept a new license of the Land by executing the

new license contained in the notice and delivering it to the Owner.

Article 3 - License Fee

3.1 The Licensee shall pay to the Owner a license fee of

$1.00 for the entire term.

Article 4 - Covenants of the Licensee

4.1 The Licensee covenants with the Owner:

(

a) to pay and discharge when due all applicable taxes, levies,

charges and assessments now or hereafter assessed, levied or charged that relate to the

Land or any of the Licensee's improvements thereon (the "Realty Taxes") that the

Licensee is liable to pay;

(

b) to observe, abide by and comply with all applicable laws, bylaws,

orders, directions, ordinances and regulations of any competent government authority in

any way affecting the Land and improvements situate thereon, or their use and occupation;

(

c) not to commit or suffer any wilful or voluntary waste, spoil or

destruction on the Land or do or suffer to be done thereon by its employees, contractors,

agents, invitees or anyone for whom the Licensee is responsible at law anything that may

be or become a nuisance to the Owner or to the occupiers of adjoining land;

(

d) to deliver to the Owner from time to time, upon demand, proof of

insurance provided for in subsection (j), receipts or other evidence of payment of Realty

Taxes, insurance premiums and other monetary obligations of the Licensee required to be

observed by the Licensee pursuant to this license;

(

e) 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 agreement in this license by the Licensee, or

(ii) any personal injury, death or property damage arising out of

the Licensee's use and occupation of the Land

and the amount of such losses, damages, costs and liabilities

shall be payable to the Owner immediately;

(

f) to keep the Land in a safe, clean and sanitary condition

satisfactory to the Owner acting reasonably, and to make safe, clean and sanitary any

portion of the Land or any improvement thereon that the Owner, acting reasonably, may

direct by notice in writing to the Licensee;

(

g) to permit the Owner or its authorized representative to enter

upon the Land at any time to examine its condition;

(

h) to use and occupy the Land in accordance with the provisions of

this license including those set forth in the

schedule attached and entitled "Special

Provisos";

(

i) on the expiration or at the earlier cancellation of this license:

(

i) to quit peaceably and deliver possession of the Land to the

Owner,

(ii) to remove from the Land all above-ground buildings,

machinery, plant equipment and apparatus and all other improvements to or things on the

Land erected or placed on the Land by the Licensee, and

(iii) to restore the surface of the Land to the satisfaction of

the Owner acting reasonably,

and to the extent necessary, this covenant shall survive the

expiration or cancellation of this license;

(

j) to effect, and keep in force during the term, insurance

protecting the Owner and the Licensee (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 Land to an

amount not less than $1,000,000.00; except that so long as the Licensee is Her Majesty the

Queen in Right of the Province of British Columbia or a British Columbia crown

corporation, the Owner will waive the requirements of this subsection on the delivery to

the Owner of confirmation that the Licensee is self insured;

(

k) notwithstanding subsection (j), the Owner may from time to time

notify the Licensee that the amount of insurance posted by the Licensee pursuant to that

subsection be changed and the Licensee shall, within 60 days of receiving such notice,

cause the amount of insurance posted, pursuant to subsection (

j) to be changed to the

amount specified by the Owner, acting reasonably, in the notice and deliver to the Owner

written confirmation of the change, except that when the Licensee is self-insuring this

section shall not apply; and

(

l) not to interfere with the activities, works or other improvements

of any other person who enters on or uses or occupies the Land 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 Land, in accordance with

Section 9.3.

Article 5 - Assignment

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 a part of the Land

to a British Columbia 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.

5.3 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 license.

Article 6 - Cancellation

6.1 If 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:

(a) 30 days; or

(b) 150 days, if the failure because of its nature would reasonably

require more than 30 days to cure, and provided that the Licensee is proceeding diligently

and continuously to cure the failure throughout

then, and in any such case, the Owner may cancel this license

and, notwithstanding subsection 4.1 (i), any fixtures to the Land shall become, at

the discretion of the Owner, the property of the Owner.