Appendix: Operator Terms and Conditions for Hallowell Road

OPERATOR TERMS AND CONDITIONS FOR USE OF HALLOWELL ROAD

CONDITIONS OF USE OF HALLOWELL ROAD BY HEAVY TRUCKS

1. The Operator may operate heavy trucks on Hallowell Road only if such operations are in compliance with the following standards: (a) Heavy truck operations are not allowed outside the hours of 7 a.m. to 7 p.m. or on Sundays or statutory holidays; (b) No more than __ heavy truck trips are permitted in any 24-hour period; (c) No more than __ heavy truck trips are permitted in any 7-day period; (d) No more than __ heavy truck trips are permitted in any 30-day period, of which not more than __ may be B trains; (e) No heavy truck shall be operated at a speed exceeding 15 kilometres per hour; (f) No heavy truck shall be operated in a manner which causes any loud and unnecessary noise in or from the engine, exhaust system or the braking system, and without limiting the generality of the foregoing no heavy truck operator shall use engine braking on Hallowell Road; (g) No heavy truck shall be operated on the Esquimalt Reserve or on Hallowell Road so as to exceed a decibel level of 90 dBA. (h) No heavy truck carrying a load from which dust or debris of any kind can escape shall be operated unless the load is covered and secured so as to minimize such escape; (i) No heavy truck shall be operated on Hallowell Road so as to deposit on the road any mud or other material originating on the Esquimalt Reserve; and (j) No B train shall make a left turn from Hallowell Road to Admirals Road between 1:30 p.m. and 4:30 p.m.

2. Without limiting any other remedy that the Town has under this Agreement for a breach of Section 1(i), the Town may, by notice in writing to the Operator in accordance with this Agreement, make the Operator’s further use of Hallowell Road conditional on the Operator establishing a truck tire wash facility on the Operator’s Site and using the facility so as to prevent the deposit of material on Hallowell Road.

3. If the heavy truck trip limits in Section 1 are exceeded such that a daily, weekly or monthly heavy truck trip limit specified in the Hallowell Road Agreement is exceeded, the Operator shall pay to the Town a single additional road use fee of $5.00 per trip in excess of those limits. For certainty, the Operator may exceed a limit specified in Section 1 without paying an additional road use fee if the total number of heavy truck trips originating on or destined for the Esquimalt Reserve in any such time period does not exceed the total number permitted for that time period under the Hallowell Road Agreement, and not more than one additional road use fee is required in respect of any particular heavy truck trip.

4. If the decibel level specified in Section 1 is exceeded, regardless of the duration of the exceedance, the Operator shall pay to the Town an additional road use fee of $200 in respect of the first such exceedance, and the fee shall be increased by $200 for each subsequent exceedance.

5. The Operator must take all reasonable steps to ensure that its employees and contractors are aware of the restrictions in this Agreement, and must post a legible copy of the restrictions in its business premises on the Operator’s Site.

6. The Director may temporarily suspend the Operator’s rights under this Agreement if the condition of Hallowell Road is, in the opinion of the Director acting reasonably, such that its continued use by heavy trucks would cause damage that would be unduly expensive or difficult to repair or would jeopardize the use of Hallowell Road by other types of traffic, but any such suspension shall be of no longer duration than is reasonably required to repair or otherwise remedy the condition of the road. A minimum of 24 hours’ notice of any suspension under this section shall be given in writing to the Operator, except in an emergency in which case the notice need only be such as is practical in the circumstances.

7. The Operator may apply to the Director for an exemption from the restrictions in Section 1 in respect of hours of operation or trip limits, and the Director may, having considered the Operator’s application, the representations of affected Town residents and, should the Director seek such direction, the wishes of the Town Council, authorize such exemption on such terms and conditions as the Director may prescribe, including the payment of supplementary fees in accordance with Schedule A to this Agreement. The Operator may not apply for a retroactive exemption under this Section.

8. The Operator must advise the Town’s Fire Chief, at least 24 hours in advance of any such trip, of the Operator’s intention to transport on Hallowell Road pursuant to this Agreement any dangerous goods as defined in the Transportation of Dangerous Goods Act (Canada).

9. The Operator acknowledges that the restrictions contained in this Agreement are in addition to any conditions that may be imposed on the Operator’s operations by the Esquimalt Nation or the Minister of Indigenous and Northern Affairs, whether by bylaw, lease or license terms or otherwise.

10. The Operator consents to the installation on the Operator’s Site on the Esquimalt Reserve, by the town at the Operator’s expense, of a Traffic Counter selected by the Town at its discretion to monitory traffic types and volumes entering and leaving the Operator’s Site, and to the inspection and monitoring of the Traffic Counter by the Town for the purposes of this Agreement.

ROAD USER FEES

11. The Operator must pay to the Town, monthly in accordance with this Agreement, a road user fee in the amount of $1 per one-way trip plus applicable taxes, which payment the Operator acknowledges is within the scope of Section 42 of the Community Charter.

12. On January 1 of each year of this Agreement the fee specified in Section 11 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 fee decrease from the previous year.

13. For the purpose of calculating and paying fees payable to the Town under this Agreement, the Operator shall: (a) cause all heavy trucks operating on Hallowell Road pursuant to this Agreement and under the direct control of the Operator to be clearly marked as such; (b) keep a record of all heavy truck trips on Hallowell Road that are operated with an origin or destination on the premises of the Operator on the Reserve, by time of the commencement and termination of heavy truck operations on each day, and a daily total of heavy truck trips; (c) make the record of heavy truck trips available for inspection by the Director or a Town employee authorized by the Director, during normal business hours, and provide a copy of the record to the Director or authorized employee on request; (d) provide to the Town a monthly written statement of the number of trips for which a fee is payable together with the Operator’s payment pursuant to Section 11 of this Agreement and any supplementary fees payable under Section 7, within 30 days of the end of the month to which the statement and payment pertain; and (e) in the event that any payment due to the Town is not made within the time specified in this Section, include a payment in respect of compound interest on the unpaid amount at the rate of 1.5% per month.

STATUTORY DECLARATION

14. The Operator must provide to the Town, annually within 10 business days of the end of the previous calendar year, a statutory declaration in the form of Schedule B to this Agreement in respect of the information recorded under Section 13(b) and the trip numbers reported to the Town under Section 13(d).

15. The Operator acknowledges that the Town may independently verify the information reported by the Operator under Sections 13(b) and 13(d).

BREACH OF AGREEMENT

16. If: (a) the Operator fails to make a payment required by this Agreement within 60 days of the end of the month to which the payment pertains and the Esquimalt Nation has not made the payment on the Operator’s behalf in accordance with the Hallowell Road Agreement; (b) the Operator commits any other breach or default of this Agreement and the default is not cured within 10 calendar days of receiving a notice of default from the Town; or (c) the Operator commits a fourth breach or default of this Agreement, even though the previous breaches or defaults have been cured; this Agreement terminates automatically, which termination does not relieve the Operator of any unfulfilled obligations, including obligations to pay money, which accrued prior to the termination.

TERM OF AGREEMENT

17. This Agreement commences on the date that it is fully executed by the parties and it continues in force until terminated in accordance with Section 16 or 18.

18. Either party may terminate this Agreement upon at least six months’ notice to the other party, in which case the Agreement terminates on the date specified in the notice, but the Town may not give notice of termination: a. unless the Town has given notice of termination to Esquimalt under Section 47 of the Hallowell Road Agreement; or b. unless at least three years have elapsed from the reference date of this Agreement and the Agreement is being terminated because heavy truck traffic originating on the Operator’s Site on Hallowell Road, Admirals Road or other highways in the Town is causing any of the following impacts and mitigation measures provided for in this Agreement have not, in the opinion of the Town’s Director of Engineering and Parks, effectively or sufficiently mitigated the impact: i. physical impact on Hallowell Road or Admirals road such as pavement degradation; ii. impact on traffic movement on the Town’s highway network; or iii. environmental impact including noise, vibration or dust generated by the operation of heavy trucks.

RELEASE

19. The Operator hereby waives any right of recourse and releases any actions, causes of action, suits, damages, losses, costs, claims and demands of any nature whatsoever that it now has or at any time may have or obtain against the Town, or its elected officials, officers, employees or agents (the “Town Representatives”), with regard to any matter related to this Agreement, including its operation of heavy trucks on Hallowell Road, death, bodily injury, property loss, property damage, or consequential loss or damage, whether or not there is any aspect of negligence on the part of the Town or the Town Representatives.

INDEMNIFICATION

20. The Operator shall indemnify and save harmless the Town and the Town Representatives from any and all manner of actions, causes of action, suits, damages, losses, costs (including actual legal and other consultant costs), claims, and demands of any nature whatsoever arising during the Term that may relate, directly or indirectly, to: (a) this Agreement; (b) its operation of heavy trucks on Hallowell Road; (c) death, bodily injury, property loss, property damage, or consequential loss or damage in relation to its operation of heavy trucks on Hallowell Road; (d) any default or breach of this Agreement by the Operator; (e) any wrongful act, omission or negligence of the Operator, its officers, employees, operators, contractors, agents or others for whom it is responsible; whether or not there is any aspect of negligence on the part of the Town or the Town Representatives.

SURVIVAL OF RELEASE AND INDEMNIFICATION

21. The release in section 19 and the indemnity in section 20 shall survive the expiry or earlier termination of this Agreement.

INSURANCE

22. The Operator covenants and agrees to obtain and keep in force at its own expense at all times throughout the term of this Agreement comprehensive general liability insurance on an occurrence basis, in an amount not less than Five Million Dollars ($5,000,000) inclusive per occurrence, against death, bodily injury and property loss and damage occurring by virtue of the Operator's use of Hallowell Road or by virtue of this Agreement. This insurance shall include legal liability coverage. This insurance shall be endorsed to add the Town as an additional insured and shall include a cross liability provision such that the Town and the Operator are each insured as if each had purchased the policy of insurance.

23. The Operator shall provide to the Town a certificate of the insurance required by Section 22 upon issuance of the insurance policy, and evidence of the renewal of the policy as of each policy renewal date.

COMPLIANCE WITH LAWS

24. In its use of Hallowell Road, the Operator shall comply with all applicable federal, provincial and municipal statutes, regulations, bylaws, rules, codes and standards and any other legally enforceable requirements of any kind whatsoever, including the Truck Route Bylaw except to the extent specifically made inapplicable to the Operator under this Agreement.