Appendix: Draft Hallowell Road Agreement

INTERPRETATION

1. In this Agreement,

   “B train” means a combination of vehicles composed of a truck tractor and a semi-trailer, followed by another semi-trailer attached to the first semi-trailer by means of a fifth wheel coupler mounted on the first semi-trailer, within the axle spread of the first semi-trailer or not located more than 0.3 m behind the centre of the last axle.

   “Commercial Operator” means a person or corporation to whom Esquimalt or the Minister of Indigenous and Northern Affairs has granted rights to use or occupy portions of the Reserve for commercial or industrial uses, which use or occupancy generates heavy truck traffic on Hallowell Road in excess of 4 trips per day, and includes any contractor performing work on the Reserve for either Esquimalt or the Minister;

   “Decibel Meter” means an electronic device that measures the amplitude of sound;

   “Director” means the Town’s Director of Engineering and Parks.

   “Hallowell Road” includes, in relation to any matter dealt with in this Agreement other than legislative jurisdiction, any portion of the Reserve on which the Hallowell Road improvements are located;

   “Heavy truck” means a truck with a gross vehicle weight exceeding 20,000 kilograms.

   “McElhanney Design Drawing” means [REFER TO MOST RECENT DRAWING], including any revisions to the drawing that are approved by Esquimalt and the Town after the reference date of this Agreement.

   “Occupancy” in relation to the Reserve includes any use of the Reserve for the transport of materials by heavy truck.

   “Thetis Cove Lands” means the privately-owned lands lying to the north of the Reserve and to the west of the Esquimalt and Nanaimo Railway right of way;

   “Traffic Counter” means an electronic device that monitors motor vehicle traffic types and volumes, placed on the Reserve pursuant to the terms of an agreement between the Town and a Commercial Operator;

   “Trip” means one-way trip of a heavy truck of a Commercial Operator on Hallowell Road.

HALLOWELL ROAD IMPROVEMENTS

2. The Town will enter into Section 42 Agreements with Commercial Operators with respect to the use of Hallowell Road by heavy truck traffic, as described in Section 37 of this Agreement, provided that Esquimalt is in compliance with this Agreement.
3. Esquimalt will, at Esquimalt’s cost, construct the Hallowell Road improvements in accordance with the McElhanney Design Drawing.
4. Esquimalt will cause its contractors to coordinate construction of the works described in Section 2 with the Capital Regional District’s improvements in this area, if required.
5. In the event that the Town or its approving officer requires the owner of the Thetis Cove Lands to dedicate land for the extension of Hallowell Road west of the Esquimalt & Nanaimo Railway right of way and construct such westerly extension of Hallowell Road, Esquimalt and the Town will take reasonable measures to ensure that the construction of the westerly extension and the decommissioning of the Hallowell Road improvements, if required, will not disrupt vehicular traffic between the Reserve and Hallowell Road.
6. Esquimalt shall be solely responsible for the cost of any modifications to the intersection of Hallowell Road and Kosapsum Road that are located on the Reserve and necessitated by the work described in Section 5.

FURTHER IMPROVEMENTS TO HALLOWELL ROAD AND OTHER TOWN HIGHWAYS

7. The Town may, in order to maintain an acceptable level of service for the intersection of Hallowell Road and Admirals Road during both AM and PM peak hours, provide: a. traffic signals at the intersection of Aldersmith Road and Admirals Road to relieve traffic at the intersection of Hallowell Road and Admirals Road; b. additional queuing capacity for left turning vehicles eastbound on Hallowell Road; and c. a second left turn bay for such left turning vehicle traffic on Hallowell Road,

   and Esquimalt agrees to pay the cost of such improvements, including the cost of acquiring land required for the improvements, in advance based on a professional engineer’s estimate of the cost, provided that the Town has, prior to undertaking the work, provided to Esquimalt a copy of traffic engineering reports indicating the need for the improvements and a professional engineer’s estimate of the cost of the work.

8. For the purposes of Section 7, “acceptable level of service” means Level of Service “D”, assessed according to the methodology used in the June 18, 2015 report of Adept Transportation Solutions prepared for the Capital Regional District entitled “Hallowell Road - E&N Rail / Trail Project, View Royal, B.C. Transportation Impact Assessment Final Report”, an extract from which is attached to this Agreement as Schedule A.

9. In the event that the actual cost of work described in the preceding paragraph is less than the amount that Esquimalt has paid in advance, Esquimalt shall be entitled to a refund of the excess amount, and in the event that the actual cost exceeds the amount that Esquimalt has paid in advance, Esquimalt shall pay the shortfall to the Town. In the latter case, Esquimalt may require that the Town provide a professional engineer’s certification of the cost of the work.

10. The Town will make reasonable efforts to obtain from the owner of the Thetis Cove Lands, as a condition of the approval of development of those lands, reimbursement of Esquimalt for a portion of the cost of works for which Esquimalt is responsible under Section 7(a), which portion shall be determined on the same basis as a latecomer charge imposed under Part 14 of the Local Government Act.

11. Esquimalt will, prior to authorizing occupancy of the Reserve by a Commercial Operator that is not in occupancy of the Reserve on the reference date of this Agreement have a qualified professional engineer approved by the Town prepare a traffic study evaluating the impact of 40,000 heavy truck trips annually between the Reserve and the intersection of Hallowell Road and Admirals Road, including without limitation: a. an assessment of the physical impact of the heavy truck traffic on Hallowell Road and Admirals Road; b. an assessment of the impact of the heavy truck traffic on the level of performance of any intersection, including without limitation the intersections of Admirals Road with Hallowell Road and Aldersmith Place; c. an assessment of the impact of the traffic on residential areas adjacent to Hallowell Road or Admirals Road; and d. the engineer’s recommendations as to measures that would be likely to mitigate or eliminate any detrimental or negative impacts that have been identified in the study, including an estimate of the cost of implementing those measures.

12. The terms of reference for the traffic impact study shall be submitted to the Town for the approval of the Director, acting reasonably, and the Director may in granting approval require that the terms of reference direct the professional engineer to make factual assumptions specified by the Director with respect to the following: a. the type of heavy truck traffic that uses Hallowell Road; b. the time of day at which heavy truck trips occur; c. the volume or type of other types of traffic that occur on Hallowell Road, Admirals Road, or highways intersecting with those highways; d. the time of day at which other types of traffic use Hallowell Road, Admirals Road, or highways intersecting with those highways; e. other factual matters that are relevant to the thorough evaluation of the impact of the heavy truck traffic.

13. Esquimalt will provide a copy of any traffic impact study prepared pursuant to Section 11 to the Director, and the Director may require that any or all of the measures recommended by the engineer be undertaken before recommending to the Council of the Town that the Town enter into a Section 42 Agreement with any Commercial Operator.

14. The Town shall be under no obligation to allow heavy truck traffic generated by a Commercial Operator to operate heavy trucks on Hallowell Road, unless Esquimalt or the Commercial Operator has paid to the Town the amount identified by the engineer as the cost of the measures recommended by the engineer and required by the Director.

15. The Town may, at its sole discretion, allow heavy truck traffic generated by a Commercial Operator on Hallowell Road before mitigation measures have been undertaken, as long as the costs of the measures have been paid in full to the Town.

16. In the event that the actual cost of measures required by the Director exceed the engineer’s estimate, Esquimalt shall be liable for the excess amount provided that the excess costs have been certified in writing by a professional engineer. Nothing in this Agreement affects Esquimalt’s ability to recover such excess amount from a Commercial Operator.

17. The Town may provide a written account for excess costs for which Esquimalt is liable under this Agreement, within 60 days of the completion of the work, and Esquimalt shall pay such account within 30 business days whether or not Esquimalt has recovered the costs from the relevant Commercial Operator. Accounts that remain unpaid after 30 days shall bear compound interest at the rate of 1.5% calculated monthly.

18. If the engineer recommends any mitigation measures that can be implemented wholly or in part by the enactment of bylaws under the Community Charter or the Indian Act, the Town and Esquimalt, respectively, will in good faith consider the enactment of such bylaws.

19. Esquimalt will, every 2 years following the completion of the traffic impact study required by Section 11, have a qualified professional engineer approved by the Town prepare an update of the traffic impact study, including a review of the factual assumptions on which the study was based against actual traffic data pertinent to the assumptions, a review of the recommendations provided pursuant to Section 11(d), and an evaluation of the effectiveness of any measures that have been undertaken in accordance with such recommendations. Sections 12 through 18 apply with respect to the update and any recommendations contained in the update.

20. The Town may, despite Esquimalt having provided updates in accordance with Section 19, require Esquimalt to provide, at its cost, an additional update of the traffic impact study if the Director, acting reasonably, considers that heavy truck traffic originating on the Reserve is having an unacceptable impact on Hallowell Road or on traffic flow on Hallowell Road or Admirals Road. Sections 12 through 18 apply with respect to the additional update and any recommendations contained in the additional update.

MAINTENANCE OF HALLOWELL ROAD

21. Esquimalt agrees to share with the Town the cost of maintaining Hallowell Road west of Admirals Road, in the manner set out in this Agreement.
22. Maintenance costs that are shareable under this Agreement include the following: a. application of lane marking; b. crack sealing; c. asphalt Patching; d. catch basin inspection and cleaning; e. sweeping; and f. sign replacement.
23. The parties shall share equally in the cost of lane marking.
24. In relation to crack sealing and asphalt patching, the Town shall contribute $500 per year and Esquimalt shall contribute $5500 per year towards a reserve fund managed by the Town, which the Town will apply to the cost of crack sealing and/or asphalt patching on Hallowell Road.
25. In relation to the inspection and cleaning of catch basins, the Town shall be responsible for the first inspection and cleaning performed each calendar and Esquimalt shall be responsible for the cost of up to four additional inspections and cleaning performed in any calendar year.
26. In relation to street sweeping, the Town shall be responsible for the cost of sweeping Hallowell Road west of Admirals Road four times per calendar year and Esquimalt shall be responsible for the cost of sweeping the road up to 22 additional times per year.
27. In relation to sign replacement, each of the parties shall contribute $500 per year towards a reserve fund managed by the Town, which the Town will apply to the cost of replacing street identification and traffic control signage on Hallowell Road.
28. On January 1 of each year of this Agreement the amounts specified in Sections 24 and 27 shall increase cumulatively by any percentage increase over 12 months in the December Consumer Price Index (All Items) for British Columbia published by Statistics Canada. For certainty, under no circumstance will the amounts decrease from the previous year.
29. The need for and timing of any of the maintenance work described in Sections 21 through 27 shall be for the Director to determine, acting reasonably in accordance with ordinary municipal road maintenance and risk management practices.
30. The Town may provide a written account for maintenance costs for which Esquimalt is liable under this Agreement, on a quarterly basis commencing at the end of the three-month period immediately following the completion of the Hallowell Road improvements described in Sections 2 and 3, and Esquimalt shall pay such account within 30 business days. The first account in each calendar year shall include the amounts described in Sections 20 and 23. Accounts that remain unpaid after 30 days shall bear compound interest at the rate of 1.5% calculated monthly.
31. Either party may, by notifying the other in accordance with Section 44, initiate a review of the cost sharing arrangements in Sections 21 to 30 on the basis of actual data on the maintenance burdens associated with heavy truck traffic originating on the Reserve and those associated with other types of traffic. If the parties cannot, within 6 months of the date of the notice, agree on amendments to those Sections or agree that no such amendments are warranted, the dispute shall be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre, pursuant to its Rules. The place of arbitration shall be Victoria, B.C. and the arbitrator shall be a resident of British Columbia and, if a person with such qualifications is then on the Centre’s roster of arbitrators, a member of the Association of Professional Engineers and Geoscientists of British Columbia.

CONDITIONS OF USE OF HALLOWELL ROAD BY HEAVY TRUCKS

32. The parties agree that the Town will permit Commercial Operators to operate Heavy Trucks on Hallowell Road only on the following conditions: a. subject to subsection b, heavy truck operations are not allowed outside the hours of 7 a.m. to 7 p.m. or on Sundays or statutory holidays; b. truck operations of Trio Ready-Mix at its Thomas Road site are allowed between the hours of 6:30 a.m. and 7:00 p.m. provided that not more than 4 truck trips occur during that period unless at least 24 hours’ prior notice has been provided to the Town, which notice shall specify the number of truck trips that are proposed; c. no more than 200 heavy truck trips are permitted in any 24-hour period; d. no more than 800 heavy truck trips are permitted in any 7-day period; e. no more than 3000 heavy truck trips are permitted in any 30-day period, of which not more than 40 may be B trains; f. no more than 36,000 heavy truck trips are permitted in any calendar year, of which not more than 350 may be B trains; and g. left turns of B trains from Hallowell Road to Admirals Road are prohibited between 1:30 p.m. and 4:00 p.m.
33. Esquimalt must take all reasonable steps to ensure that Commercial Operators and any person operating a heavy truck on Hallowell Road pursuant to a Section 42 Agreement are aware of the restrictions in the agreement.
34. Esquimalt may propose an increase in the number of truck trips specified in Section 32 including, without limitation, proposals related to opportunities available to business enterprises owned or controlled by Esquimalt, and the Town agrees to consider such proposals in good faith. The Director may, having considered Esquimalt’s proposal, the representations of affected Town residents and, should the Director seek such direction, the wishes of the Town Council, approve the proposal or approve a lesser increase in the number of truck trips, and may make the approval conditional on Esquimalt paying for improvements to Hallowell Road or any other related component of the Town’s highway network that are required to accommodate the increased heavy truck traffic. Esquimalt may not propose retroactive increases under this Section, and the Director may not under any circumstances approve in excess of 54,000 truck trips per calendar year.
35. If the Director approves increases in accordance with Section 34, the following shall apply: a. if a limit specified in Section 32 c., d. or e. is exceeded, the road user fee specified in the Commercial Operator’s Section 42 Agreement shall be 5 times the amount specified in Section 11 of Schedule B to this Agreement, for each truck trip in excess of the specified limit; and b. if the limit specified in Section 32 f. is exceeded, the road user fee specified in the Commercial Operator’s Section 42 Agreement shall be 5 times the amount specified in Section 11 of Schedule B to this Agreement for each truck trip in excess of 36,000 truck trips in a calendar year up to 45,000 truck trips, and 10 times the amount specified in Section 11 of Schedule B to this Agreement for each truck trip in excess of 45,000 truck trips in a calendar year.
36. If any Commercial Operator is in default of an obligation, under the Commercial Operator’s Section 42 Agreement, to pay an additional road use fee in respect of heavy truck trips exceeding limits set out in that agreement, Esquimalt shall be liable to pay the additional road use fee, and shall pay the fee to the Town within 5 business days of receiving the Town’s written demand for the fee, which shall be accompanied by a written summary of the records of truck trips that substantiate the imposition of the additional road use fee. Nothing in this Agreement precludes Esquimalt from seeking to recover from the Commercial Operator any additional road use fee Esquimalt has paid to the Town under this section.
37. Each of the parties acknowledges that the key terms on which the Town intends to permit the use of Hallowell Road by heavy trucks under Section 42 Agreements are, as of the reference date of this Agreement, the terms set out in Schedule B to this Agreement. Nothing in this Agreement limits the discretion of the Town, acting reasonably, to substitute such different or alternative terms as are within the scope of s. 42 of the Community Charter as it may from time to time negotiate with Commercial Operators.
38. Esquimalt will, to the extent of its authority, require Commercial Operators to be at all times in compliance with any applicable Section 42 Agreement, including any obligation to pay road user fees, as a condition of being in occupation of land on the Reserve.
39. The Town may, at Esquimalt’s cost, install Decibel Meters and Traffic Counters at such locations on Hallowell Road and on the Reserve as the Town may determine, for the purpose of monitoring sound and counting heavy truck traffic.
40. Esquimalt consents to entry on the Reserve by staff members and contractors of the Town for the purpose of installing, inspecting, monitoring, maintaining and replacing Decibel Meters, inspecting and monitoring Traffic Counters, and replacing Traffic Counters on the failure of any Commercial Operator to replace such device upon being required to do so by the Town.

REPRESENTATIONS AND WARRANTIES

41. Each of the parties represents and warrants to the other that: a. the party has the power, authority and capacity to enter into this Agreement and perform its obligations under it; and b. the execution and delivery of this Agreement does not conflict with any other agreement binding on the party and such execution and delivery, and the performance of the party’s obligations under it, have been duly authorized by all necessary corporate action on the part of the party.

ENTIRE AGREEMENT

42. This Agreement is the entire agreement between Esquimalt and the Town pertaining to the subject-matter of this Agreement and it supersedes all prior agreements and undertakings, negotiations and discussions, whether oral or written, of the Esquimalt and the Town and there are no warranties, representations, covenants or agreements between the Esquimalt and the Town except as set forth herein.

PUBLIC DISCLOSURE

43. Esquimalt agrees and acknowledges that the Town is subject to freedom of information and public information disclosure requirements under the Freedom of Information and Protection of Privacy Act, and other legislation.

NOTICE

44. Any notice, document or communication required or permitted to be given by this Agreement shall be in writing and delivered by hand or faxed or mailed to the party to which it is to be given as follows:

    To the Town: Town of View Royal 45 View Royal Avenue Victoria, British Columbia V9B 1A6 Attention: Director of Engineering and Parks Fax No. (250) 727-9551

    To Esquimalt: Attention: _______________________ Fax No. __________________________

    or to such other address as either party may in writing advise. Any notice, document or communication will be deemed to have been given if hand delivered, then on the business day when delivered, or if mailed, then three days after mailing at a post office, or send by fax, then when transmitted with confirmation of transmission by fax if done so during or before normal business hours in the city of the addressee and if after such normal business hours the business day next following.

TIME OF THE ESSENCE

45. Time is of the essence of this Agreement.

WAIVER

46. The failure of either party to insist upon strict performance of any covenant or condition in the Agreement or to exercise any right or option shall not be construed or operate as a waiver or relinquishment for the future of any such covenant, condition, or option and no waiver shall be inferred from or implied by anything done or omitted to be done by either party save only an express waiver in writing. No waiver of any breach of any provision of this Agreement shall be effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided, shall be limited to the specific breach waived.

DEFAULT AND TERMINATION

47. If Esquimalt fails to make any payment to the Town that is required by this Agreement, the Town may on not less than one year’s notice to Esquimalt terminate this Agreement, such termination to take effect on the date specified in the notice, but any amount owing to the Town under this Agreement shall, despite such termination, constitute a debt owed to the Town that may be enforced in any court of competent jurisdiction. Esquimalt acknowledges that the Town may include in agreements with Commercial Operators a provision by which such agreements may be terminated if this Agreement is terminated.
48. Esquimalt may terminate this Agreement by providing at least 6 months’ notice in writing to the Town, such termination to take effect on the date specified in the notice. The Director may notify Esquimalt in writing of any maintenance work on or alteration of Hallowell Road that is or will be outstanding on the termination date, and Esquimalt’s share of the cost of such work under this Agreement, and Esquimalt’s obligations under this Agreement shall not be at an end until such share of the cost of the work has been paid in full to the Town.
49. If Esquimalt terminates this Agreement under the preceding Section, it shall be responsible for the cost of any alterations to the intersection of Kosapsum Road and Hallowell Road that are required to prevent heavy truck traffic from the Reserve from entering Hallowell Road at that location.

ENUREMENT

50. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective corporate successors.

GOVERNING LAW

51. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable thereto.

HEADINGS

52. The headings in this Agreement are for reference only and are not to affect construction or interpretation.

AMENDMENT

53. No amendment to this Agreement is valid unless in writing and executed by the parties.

NO FETTER

54. Nothing in this Agreement shall be interpreted to fetter the legislative powers of the Council of the Town or the Band Council of Esquimalt, or the discretion of the Town’s subdivision approving officer.

INTERPRETATION

55. In this Agreement wherever the singular or masculine is used the same shall be construed as meaning the plural or the feminine or the body corporate or politic where the context or the parties hereto so require.

ESQUIMALT NATION By its authorized signatories:

TOWN OF VIEW ROYAL By its authorized signatories: