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OVERHEAD GRADE SEPARATION AGREEMENT HER

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OVERHEAD GRADE SEPARATION AGREEMENT HER Powered By Docstoc
					                                                                 Execution
SOUTH FRASER PERIMETER ROAD PROJECT
SCHEDULE 8: LANDS
Appendix D: Forms of Crossing Agreements




                  OVERHEAD (GRADE SEPARATION) AGREEMENT


                                     DATED

                         __________________________, 2010


                                    BETWEEN



              HER MAJESTY THE QUEEN IN RIGHT OF
              THE PROVINCE OF BRITISH COLUMBIA
                      AS REPRESENTED BY
     THE MINISTER OF TRANSPORTATION AND INFRASTRUCTURE


                                       AND



                           BNSF RAILWAY COMPANY
                (FORMERLY THE BURLINGTON NORTHERN AND SANTA FE
                               RAILWAY COMPANY)




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                                                   TABLE OF CONTENTS



Article 1 – Scope of Work .............................................................................................................2 

Article 2 – BNSF Obligations........................................................................................................2 

Article 3 – Province Obligations...................................................................................................4 

Article 4 - Environmental............................................................................................................11 

Article 5 – Additional Insured ....................................................................................................13 

Article 6 – Work Stoppage by BNSF..........................................................................................13 

Article 7 – Post Substantial Completion ....................................................................................14 

Article 8 – Dispute Resolution ....................................................................................................15 

Article 9 – Concession Agreement..............................................................................................15 

Article 10 – Site Representative..................................................................................................15 

Article 11 – Liens .........................................................................................................................16 

Article 12 - General......................................................................................................................16 



Schedule “A”               Figures 1 to 7 Drawings

Schedule “B”               Reference Concept Plans

Schedule 2.6               BNSF Railway Work and Estimated Cost of BNSF Railway Work

Schedule 2.7               Exhibit “C” Contractor Requirements

Schedule 3.3               BNSF Exhibit “F” Bridge Requirements

Schedule 3.4               BNSF Approval of Plans & Specifications Form

Schedule 3.13(c) Agreement regarding Claims

Schedule 3.19              Schedule 4, Part 2, Article 7, Drainage Design Criteria of Concession
                           Agreement

Schedule 4.1               Environmental Assessment Certificate



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Schedule 5.2             ISO form CG00-35-10-93

Schedule 8.1             Dispute Resolution Agreement Procedure

Schedule 10.1            Copy of Article 11 of Railway Master Agreement (Site Representative)




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                         OVERHEAD (GRADE SEPARATION) AGREEMENT

This Agreement dated the _________ day of _______________________, 2010



BETWEEN:

                   HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF
                   BRITISH COLUMBIA, AS REPRESENTED BY THE MINISTER
                   OF TRANSPORTATION AND INFRASTRUCTURE

                   (the “Province”)

AND:

                   BNSF RAILWAY COMPANY
                   (Formerly The Burlington Northern And Santa Fe Railway Company),
                   a Delaware Corporation

                   (“BNSF”)



WHEREAS:

A.      BNSF owns and operates approximately 48 km of railway track from the United
States/Canada border to New Westminster and Tilbury British Columbia (the “BNSF Railway
Corridor”);

B.      The Province proposes to construct the South Fraser Perimeter Road (“SFPR”), a new
four-lane 80 km/hr expressway adjacent to the BNSF Railway Corridor and proposes to replace
existing road/rail at-grade crossings with new road/rail separated grade crossings or construct
new road/rail separated grade crossings at the three locations set out in the Figures 1 to 7
Drawings annexed hereto as Schedule “A” (respectively the “Sunbury Overhead”, the “BNSF
Mainline Overhead” and the “Tannery Overhead” and as shown on the Reference Concept
Plans SFPR-S210, SFPR-S211, SFPR-S220, SFPR-S221, SFPR-S230 and SFPR-S240 (Sunbury
Overhead), SFPR-S240, SFPR-S241 and SFPR-S242 (BNSF Mainline Overhead) and SFPR-
S260, SFPR-S261 and SFPR-S262 (Tannery Overhead) attached hereto as Schedule “B” (as the
same may be modified by the final design), sometimes herein collectively called the “Overhead
Crossings” and individually an “Overhead Crossing”); and

C.     Pursuant to the Railway Master Agreement between the parties of even date, the parties
agreed to execute and deliver this Agreement for the construction of the Overhead Crossings.

NOW THEREFORE in consideration of the mutual covenants and agreements contained herein
the parties agree as follows:


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                                  ARTICLE 1 – SCOPE OF WORK

1.1            The Province will under a concession agreement (the “Concession Agreement”)
to be entered into among the Province, BC Transportation Financing Authority and a
concessionaire and/or under agreements (“Contractor Agreements” or “Contractor
Agreement”) with one or more contractors carry out, inter alia, all planning, logistics, design,
financing, construction, operation, maintenance and rehabilitation of the SFPR including the
Overhead Crossings and all work related thereto, which shall include changes to telephone,
telegraph, signal and electrical lines and appurtenances, temporary and permanent track work,
controls, fencing, grading and alterations to or new drainage facilities (collectively called the
“Overhead Project Work”) in accordance with the Railway Safety Act (Canada), the Transport
Canada Standard Respecting Railway Clearance and the standards, specifications and
requirements set out below in this Agreement.

1.2           In this Agreement where the context admits a reference to the Concession
Agreement shall be deemed to be a reference to a Contractor Agreement and a reference to a
concessionaire shall be deemed to be a reference to a contractor and vice versa.

1.3          BNSF will furnish all labour, materials, tools and equipment for the BNSF
Railway Work as defined and set out below in Article 2.

                                ARTICLE 2 – BNSF OBLIGATIONS

2.1            In consideration of (Cdn.) $____________ and other good and valuable
consideration BNSF hereby grants to the Province its successors and assign and its
concessionaire a temporary non-exclusive licence (the “Temporary Construction Licence”) to
permit the Province or its concessionaire (and the concessionaire’s employees, contractors,
subcontractors and agents) to construct in accordance with this Agreement the Overhead
Crossings and to do the Overhead Project Work at the locations crossing and within the portions
of the BNSF Railway Corridor set out in Schedule “A” and Schedule “B” (the “License Areas”)
excepting therefrom and reserving to BNSF the right to do the following:

         (a)       operate, maintain, renew and/or relocate any and all existing railway tracks, wires
                   and other facilities over or under the BNSF Railway Corridor (including, without
                   limitation, those under the Overhead Crossings) including, without limitation:

                   (i)     raising or lowering the grade or changing the alignment of its railway
                           tracks;

                   (ii)    laying additional railway tracks or removing or relocating railway tracks;
                           and

                   (iii)   constructing or installing other equipment, facilities or improvements in
                           connection with the operation of its railway business;

         (b)       construct, operate, maintain, renew and/or relocate upon the BNSF Railway
                   Corridor such facilities as BNSF may from time to time deem appropriate; and



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         (c)       otherwise use or operate the BNSF Railway Corridor for such railway and other
                   railway purposes (including, without limitation, the provision of services and
                   utilities) as BNSF may from time to time deem appropriate;

provided that in each of the cases set out in subsections 2.1(a), (b) and (c) such use does not
unreasonably impede, hinder, obstruct, interrupt, endanger or otherwise materially interfere with
or adversely affect the rights granted to the Province and its concessionaire under this
Agreement, except as required by BNSF to ensure the provision of adequate physical support for
the BNSF Railway Corridor or to ensure the safety, efficiency or lawful operation of its railway
operations within the BNSF Railway Corridor or as otherwise permitted by this Agreement.

2.2            The term of the Temporary Construction Licence commences on the date first
above written (the “Effective Date”) and terminates upon the total completion of the last of the
Overhead Crossings to be constructed. “Total completion” means the satisfactory full and final
completion in accordance with the design and certification procedures established for the SFPR.

2.3            The Temporary Construction Licence and related rights granted by BNSF to the
Province and its concessionaire are without warranty of title. The Temporary Construction
Licence is granted for the purposes set out in this Agreement and for no other purpose.

2.4            BNSF will also grant in perpetuity (subject to termination for discontinuance of
use) to the Province a non-exclusive easement or statutory right of way substantially in the form
annexed to the Railway Master Agreement as Schedule 3.1(b) (the “Overhead (Grade
Separation) Permanent Statutory Right of Way Agreement”) for the Overhead Crossings.

2.5          The term of the Overhead (Grade Separation) Permanent Statutory Right of Way
Agreement will commence on the date of total completion as defined in section 2.2.

2.6            BNSF will furnish at the cost of the Province (such costs to be in accordance with
the usual and customary industry practices for similar work) all labour, materials, tools,
equipment and personnel for the railway work required as a result of the construction of the
SFPR (the “BNSF Railway Work”) set out in Schedule 2.6 annexed hereto. As of the date of
this Agreement, the estimated cost of the BNSF Railway Work is as set out in Schedule 2.6
annexed hereto. If construction of the SFPR has not commenced within _____ months of the
Effective Date, BNSF may revise the cost estimate to take into account any increase in the actual
costs to be incurred by BNSF as a result of the delay. If there is any item incidental to or
necessary for the work set out in Schedule 2.6 not specifically set out therein, such item may be
included in Schedule 2.6 upon written approval of the Province, such approval not to be
unreasonably withheld or delayed.

2.7                The following work will be included in the work items set out in Schedule 2.6:

         (a)       procurement of materials, equipment and supplies;

         (b)       preliminary engineering, design and preparation of any relevant agreements in
                   respect thereof and the review and any required modification of plans,
                   specifications or other documents prepared or provided by the Province;



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         (c)       providing flagging services which BNSF determines are necessary or advisable
                   for the safety of BNSF personnel and property and the operation of its trains
                   during construction of the Overhead Crossings and doing the Overhead Project
                   Work in accordance with Exhibit “C” Contractor Requirements, a copy of which
                   is annexed as Schedule 2.7 hereto;

         (d)       providing engineering advice and inspections as may be necessary in connection
                   with the construction of the Overhead Crossings and doing the Overhead Project
                   Work;

         (e)       engaging the services of the Site Representative referred to in Article 10 at the
                   cost of the Province as provided in Article 10 to provide the services referred to in
                   Article 10 in respect of the construction of the Overhead Crossings and doing the
                   Overhead Project Work with the SFPR project work under the Concession
                   Agreement; and

         (f)       dismantling and removing the existing at-grade crossing at Tannery Road.

2.8           BNSF will coordinate with the Province and its concessionaire and use reasonable
efforts to do the BNSF Railway Work so as to fit in with the works schedule under the
Concession Agreement. The BNSF Railway Work must be performed in an efficient, effective,
safe and a good and workmanlike manner in accordance with proper plans and specifications
which BNSF must prepare for the BNSF Railway Work and in accordance with a construction
schedule agreed between the Province and/or its concessionaire subject to an Event of Force
Majeure (as defined in section 3.16).

2.9           BNSF will provide to the Province or its concessionaire detailed progressive
[monthly] invoices (segregated as to labour, materials and other costs) setting out the costs for
each item shown on Schedule 2.6, including applicable taxes, of the BNSF Railway Work
performed by BNSF. The monthly invoices will be payable within 60 days of receipt of each
invoice. BNSF will assess interest on unpaid invoices of 0.033% per day (12% per annum) on
sums unpaid after the due date. Interest will accrue daily until payment is received by BNSF.

2.10           BNSF may, by notice to the Province, terminate this Agreement and the rights
granted to the Province hereunder in respect of all or any portion of the Licence Areas if:

         (a)       the construction of the Sunbury Overhead, the BNSF Mainline Overhead and the
                   Tannery Overhead have not been substantially completed on or before December
                   31, 2019 or such later date as the Province and BNSF may agree; or

         (b)       the Province ceases to use same for the purposes contemplated by this Agreement
                   for a period of five (5) consecutive years.

                             ARTICLE 3 – PROVINCE OBLIGATIONS

3.1            The Province will give or will cause to be given to BNSF 30 days prior written
notice of the commencement of the Overhead Project Work. The notice will be given to the Site
Representative with a copy to BNSF’s Manager of Public Projects whose contact details are


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_______________ and refer to BNSF’s file number ________________ and any applicable
crossing number or reference number.

3.2             The Province will provide or cause to be provided to the Site Representative not
later than 30 days before commencement of the Overhead Project Work for approval by BNSF
(such approval not to be unreasonably withheld in accordance with section 12.1 and given not
later than 14 days after receipt thereof) the following:

         (a)       four sets of plans and drawings for the Overhead Crossings (reduced to size 11” x
                   17”), including details on construction methodology;

         (b)       two copies of calculations (English units); and

         (c)       two copies of specifications (English units);

(collectively the “Plans and Specifications”).

3.3           The Plans and Specifications shall incorporate the provisions of the BNSF Exhibit
“F” Bridge Requirements annexed hereto as Schedule 3.3 to the extent they are applicable and
with the appropriate changes in language to accommodate the provisions of this Agreement.

3.4            BNSF will provide approval (through the Site Representative) to the Plans and
Specifications. Approval by BNSF shall only mean that the Plans and Specifications meet the
standards of BNSF and such approval (and any approval of revised or modified Plans and
Specifications) shall not be deemed to mean the Plans and Specifications or the methodology of
construction is structurally sound and appropriate or that they meet all applicable regulations,
laws, codes or other requirements by any government or regulatory agency.

3.5            If there are any subsequent revisions or modifications to the Plans and
Specifications that affect safety or BNSF railway operations, the Province will provide or cause
such revisions and modifications to be provided to the Site Representative for BNSF’s approval,
such approval not to be unreasonably withheld. BNSF shall approve or provide its comments on
such revised or modified Plans and Specifications by way of the Site Representative within 14
days of receipt thereof.

3.6            The Province shall or shall cause its concessionaire to perform the Overhead
Project Work in accordance with the Plans and Specifications (as revised or modified), except
for the BNSF Railway Work, including providing all labour, materials, tools and equipment.
The principal components of the Overhead Project Work include the following:

         (a)       design of the Overhead Crossings;

         (b)       dismantling and removal of the existing at-grade crossing at Tannery Road;

         (c)       construction of the Overhead Crossings;




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         (d)       all necessary grading and paving, including backfilling of excavations and
                   restoration of any disturbed vegetation on the BNSF Railway Corridor caused by
                   the Overhead Project Work;

         (e)       installation, if necessary, of protective chain fences and temporary K-Rail (Jersey)
                   barriers and gates in order to allow BNSF access for maintenance to its railway
                   facilities; and

         (f)       job site cleanup including removal of all construction materials, concrete debris,
                   surplus soil, refuse, asphalt debris, litter and waste.

3.7            The Overhead Project Work must be carried out so as not to endanger or interfere
with the safe and timely operation of BNSF’s railway operations.

3.8             The Province will give or cause to be given to the Site Representative at least
thirty (30) calendar days prior written notice requesting a BNSF flagman in accordance with the
provisions of section 1.01.05 of Schedule 2.7 (Exhibit “C” Contractor Requirements) annexed
hereto.

3.9            The Province will or will cause its concessionaire with the assistance of the Site
Representative to make any required applications for approval or permits necessary for the
Overhead Project Work and will not permit any work to be done until any and all approvals or
permits required with respect thereto have been obtained.

3.10           The Province will or will cause its concessionaire during the Overhead Project
Work to make any and all arrangements for the installation or relocation of wire lines, pipelines,
Lines (as defined in section 3.12(a)) and other utilities, facilities or systems located on land other
than the BNSF Railway Corridor for transmitting or distributing electricity, data,
communications, gas, oil and petroleum products, water and sewage or other similar
commodities or substances owned privately (other than by BNSF), publicly or cooperatively
which may be necessary for the Overhead Project Work.

3.11           The Province will or will cause its concessionaire to submit (if not included in the
Plans and Specifications) four copies of plans (including two sets of calculations in English
units) for proposed shoring, falsework or cribbing to be used over, under or adjacent to BNSF’s
railway tracks to the Site Representative for approval, such approval not to be unreasonably
withheld. The Site Representative shall approve or provide his or her comments on such plans
within 14 days of receipt thereof, failing which such approval shall be deemed to have been
given. The shoring, falsework or cribbing must comply with BNSF Exhibit “F” Bridge
Requirements as set out in Schedule 3.3 annexed hereto.

3.12          The Province will provide in the Concession Agreement that the concessionaire in
performing Overhead Project Work must comply (and the Province will cause the concessionaire
to comply) with the provisions of this Agreement and specifically that:

         (a)       the concessionaire will be placed on notice that fibre optic communication and
                   other cable lines and systems (collectively the “Lines”) are buried on the BNSF
                   Railway Corridor. The locations of these Lines have been included on plans


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                   which BNSF has provided to the Province based on information from the
                   telecommunication companies owning or operating the Lines. The concessionaire
                   will be responsible and the Province will cause the concessionaire to confirm the
                   actual location of all Lines and mark them on plans that are utilized for the
                   Overhead Project Work;

         (b)       the concessionaire must give notice in writing to the Site Representative and the
                   owner or operator of the Line and coordinating any work on Lines, including any
                   relocation of the Lines, with the owner or operator thereof.

3.13            The Province in the Concession Agreement will also require the concessionaire to
comply with and/or agree (and the Province will cause the concessionaire to comply with and/or
agree) to the following:

         (a)       that all Overhead Project Work carried out within the BNSF Railway Corridor
                   must be performed in an efficient, effective, safe and a good and workmanlike
                   manner in accordance with the Plans and Specifications and any revisions or
                   modifications thereto, all as approved by BNSF in accordance with this
                   Agreement, and so as not to damage or interfere in any way with any Lines or
                   other installations within the BNSF Railway Corridor or impair in any way the
                   operation thereof;

         (b)       that subject to an event of Force Majeure (as defined in section 3.16) the
                   concessionaire will comply with the construction schedule for the Overhead
                   Project Work schedule as agreed between the Province and/or its concessionaire
                   and BNSF;

         (c)       that the concessionaire must execute and deliver to BNSF an agreement
                   substantially in the form annexed hereto as Schedule 3.13(c) under which the
                   concessionaire acknowledges that it will not make a claim against BNSF in
                   respect of any matter arising out of the Overhead Project Work (except to the
                   extent that it has a claim arising out of the intentional misconduct or gross or sole
                   negligence of BNSF);

         (d)       that if the concessionaire fails to prosecute the Overhead Project Work in
                   accordance with the provisions of the Concession Agreement that such failure
                   will be a concessionaire default under the Concession Agreement with all the
                   remedies available to the Province including remedying such default itself or
                   employing the services of a third party to do so;

         (e)       that the concessionaire will coordinate with the Site Representative mutually
                   agreeable work windows for the Overhead Project Work so as to avoid
                   interference with train schedules. BNSF may upon giving the Province and any
                   representative of the concessionaire that has been appointed not less than 30 days
                   notice except in the case of an emergency, in which case such notice as is possible
                   in the circumstances to revise or change the agreed work windows if that is
                   necessary to accommodate altered train schedules or altered service obligations to



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                   BNSF’s customers. BNSF will not be responsible for any liability or additional
                   costs and expenses resulting from such revisions or changes in work windows.
                   BNSF will use commercially reasonable efforts to avoid revisions or changes in
                   work windows, it being understood that such revisions or changes will result in
                   extra costs and expenses to the Province and its concessionaire. Notwithstanding
                   the foregoing or any other provision of this Agreement, BNSF shall retain the
                   discretion to modify or cancel any work window of which notice has been given
                   to the Province and any concessionaire representative or to reschedule any work
                   where, in the opinion of BNSF, acting in good faith, such modification,
                   cancellation or rescheduling is required to ensure the provision of adequate
                   physical support for, or the safety or efficiency of BNSF’s railway operations
                   within the BNSF Railway Corridor; and

         (f)       that the concessionaire will comply with the provisions of:

                   (i)    Schedule 2.7 (Exhibit “C” Contractor Requirements), and

                   (ii)   Schedule 3.3 (Exhibit “F” – BNSF Bridge Requirements).

                   References to “contractor” in Schedule 2.7 (Exhibit “C” Contractor
                   Requirements) shall be deemed to be, where appropriate, references to
                   “concessionaire”.

3.14           The Province will pay or cause to be paid BNSF’s reasonable actual out of pocket
and internal costs and expenses (including standard additives applicable from time to time)
provided all such costs or additives shall be in accordance with usual and customary industry
practices for such costs and additives, as verified by invoices with appropriate back-up
information provided by BNSF, of the restorative work under section 2.10(a).

3.15          The Province will reimburse BNSF or cause BNSF to be reimbursed for the
reasonable costs in accordance with usual and customary industry practices for such costs
incurred by BNSF in performing the BNSF Railway Work.

3.16             The prosecution of the Overhead Project Work (and the BNSF Railway Work) is
subject to any event of Force majeure. For the purpose of this section, “Force Majeure” means
acts of God; acts of the public enemy; wars; sabotage; terrorism; riots; strikes; lockouts;
vandalism; blockages; labour disputes; operating or other railway emergencies; fires; explosions;
natural disasters; floods; perils of the sea; lightning; wind; actions of a governmental authority
(including the denial, revocation or non-renewal of a necessary governmental authorization
provided that such authorization has been duly applied for); accidents or failure of equipment or
machinery; allocation or failure of normal sources of supply of materials, transportation, energy
or utilities or other causes of a similar nature, provided in each case that such event:

         (a)       could not reasonably have been prevented by and is beyond the reasonable control
                   of the party claiming such Force Majeure; and

         (b)       directly causes that party to be unable to comply with all or a material part of its
                   obligations under this Agreement.


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3.17            The Province shall, in exercising its rights under this Agreement and at its cost,
comply at all times and cause its concessionaires or contractors to comply at all time with such
reasonable requirements as BNSF may impose from time to time with respect to the safety or
efficiency of its railway operations including, without limitation, requirements with respect to the
provision of flagging services.

3.18            The Province shall, on demand by BNSF, reimburse BNSF (without duplication)
for any and all reasonable out of pocket costs incurred by BNSF by reason of:

(a)      the construction of the SFPR, or

(b)      the carrying out by the Province or BNSF of any other work provided for in this
         Agreement,

or which BNSF would not otherwise have incurred but for the performance of the work referred
to in subsections 3.18(a) or (b) including, without limitation, reasonable consultants’ costs,
except in each case to the extent that such costs are expressly stated in this Agreement to be the
responsibility of BNSF.

3.19           The Province shall, in exercising its rights under this Agreement and at its cost,
comply at all times and cause its concessionaires or contractors to comply at all times with the
provisions of Schedule 4, Part 2, Article 7, Drainage Design Criteria of the Concession
Agreement, a copy of which is annexed hereto as Schedule 3.19.

3.20           The Province shall, at its cost and at the direction of BNSF, carry out such
upgrades, modifications and other work in respect of any construction undertaken by the
Province under this Agreement as BNSF, acting reasonably, may determine from time to time
are required to ensure the provision of adequate physical support for, or the safety or efficiency
of BNSF’s railway operations within, the BNSF Railway Corridor.

3.21            The Province acknowledges that it has been allowed to make an inspection of the
License Areas and the BNSF Railway Corridor. The Province accepts the License Areas on an
"as-is with all faults" basis with any and all patent and latent defects, including those relating to
the environmental condition of the License Areas, and, except as may expressly be provided in
this Agreement, is not relying on any representation or warranty, express or implied, of any kind
whatsoever by BNSF as to any matters concerning the License Areas or the BNSF Railway
Corridor, including, but not limited to the physical condition thereof; zoning status; tax
consequences of the transaction provided for in this Agreement; utilities; operating history or
projections or valuation; compliance of the License Areas or the BNSF Railway Corridor with
environmental or other laws, statutes, ordinances, decrees, regulations and other requirements
applicable to the License Areas or the BNSF Railway Corridor; the presence of any hazardous,
toxic or regulated substances or materials, wetlands, asbestos, lead, lead-based paint or other lead
containing structures, urea formaldehyde, or other environmentally sensitive building materials
in, on, under, or in proximity to the License Areas or the BNSF Railway Corridor; the condition
or existence of any of the above ground or underground structures or improvements, including
tanks and transformers in, on or under the License Areas or the BNSF Railway Corridor; the
condition of title to the License Areas or the BNSF Railway Corridor, and any leases, easements,



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permits, orders, licenses or other agreements affecting the License Areas or the BNSF Railway
Corridor. The Province represents and warrants to BNSF that the Province has not relied and will
not rely on, and BNSF is not liable for or bound by, any warranties, guaranties, statements,
representations or information pertaining to the License Areas or the BNSF Railway Corridor
made or furnished by BNSF or any third party representing or purporting to represent BNSF, to
whomever made or given, directly or indirectly, orally or in writing, except in each case as
expressly provided in this Agreement.

3.22           If any Overhead Project Work performed by the Province or its concessionaire
causes a disruption to BNSF’s railway operations or causes an immediate or imminent risk of
harm to BNSF property or personnel, BNSF may do such reasonable work as may be necessary
to restore service or prevent disruption to BNSF’s railway operations or to protect BNSF
property or personnel. BNSF will give the Province and its concessionaire as much written
notice (or verbal notice if immediate action is necessary) as is possible in the circumstances and
will, where circumstances permit, afford the Province and/or its concessionaire the opportunity
to remedy the cause of the disruption or to restore service or prevent disruption or to protect
BNSF property or personnel, before performing such restorative work.

3.23           The Province (either itself or through its concessionaire and/or contractors) and
BNSF (where necessary) will provide for and maintain in respect of the work contemplated to be
done by them respectively under this Agreement, all minimum vertical and horizontal clearances
set out in Exhibit “C” Contractor Requirements set out in Schedule 2.7 above and the respective
plans and specifications in respect thereof or which may be required under any applicable law,
statute, enactment, regulation or other requirements of any applicable federal, provincial, local
government, governmental ministry, agency, authority, commission or other instrumentality.

3.24           The Province (either itself or through its concessionaire and/or contractors and
BNSF will do all work contemplated to be done by them respectively under this Agreement in
accordance with all applicable laws, statutes, enactments, regulations and requirements of any
applicable federal, provincial and local government, governmental ministry, agency, authority,
commission or other instrumentality.

3.25           The Province shall make (or cause to be made by its concessionaire and/or
contractors) any and all cuts and fills, excavations or embankments necessary in exercising its
rights hereunder in such manner, form and extent as will provide adequate drainage of and from
the License Areas and any lands forming part of the SFPR and wherever any such fill or
embankment may obstruct the natural drainage, the Province shall, in accordance with BNSF’s
reasonable requirements and the provisions of this Agreement above, construct and maintain (or
cause to be constructed and maintained) such culverts and drains as may be necessary to properly
provide drainage, provided that BNSF may, at its option, elect to carry out any such construction
and maintenance at the cost of the Province. BNSF shall grant such statutory rights of way,
easements or other tenures as may be necessary for such culverts and drains in forms acceptable
to BNSF, acting reasonably.

3.26          The Province and BNSF will each provide to the representatives appointed by the
Province and BNSF under section 3.28 below 30 days’ notice of the proposed dates and times of




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         (a)       any applicable work windows;

         (b)       except with respect to emergency repairs or other work for which 30 days’ notice
                   is impractical, any work by one party that may affect any work by the other party
                   under this Agreement or the railway operations of BNSF or the flow of vehicular
                   traffic on, to or from SFPR or the maintenance of SFPR and in particular any
                   construction schedule, project schedule or other milestones in respect of the
                   Province’s work or BNSF’s work under this Agreement or a Concession
                   Agreement; and

         (c)       minimum four hour work blocks during daylight hours on specified days;

it being understood and agreed that notwithstanding the foregoing or any other provision of this
Agreement, BNSF shall retain the discretion to modify or cancel work windows of which notice
has been given to the Province or to reschedule any work where, in the opinion of BNSF, acting
in good faith, such modification, cancellation or rescheduling is required to ensure the provision
of adequate physical support for, or the safety or efficiency of BNSF’s railway operations within,
the BNSF Railway Corridor.

3.27            The parties will coordinate through the representatives appointed under section
3.28 below the work to be done respectively by the parties (including by agreeing on work
windows when work may be done) so that there is minimal disruption or delay in railway or
motor vehicle traffic, maintenance or to the respective construction or project schedules or other
milestones of the parties under this Agreement (or under a Concession Agreement), subject in
each case to the discretion of BNSF under section 3.25. The Province acknowledges that the
fourth quarter of each calendar year is a particularly busy period for BNSF railway traffic and
that careful coordination must be effected for any maintenance contemplated for this period.

3.28            Each of the Province and BNSF shall concurrently with the execution of this
Agreement appoint in writing a representative through whom all communication, notices,
reports, instructions and coordination under this Article 3 must be effected. In the case of BNSF,
the Representative shall be the Site Representative referred to in section 11.1 below. The
Province will arrange for a representative to be appointed by its concessionaire for the purposes
of this Agreement.

                                 ARTICLE 4 - ENVIRONMENTAL

4.1           The Province has been issued an Environmental Assessment Certificate (Number
T08-02) dated July 24, 2008 for SFPR (the “EAC”), a copy of which is annexed hereto as
Schedule 4.1. The terms and conditions of the EAC may be accessed at www.eao.gov.bc.ca
(EAC Schedule B – Table of Commitments). The Province will itself and will cause its
concessionaire and/or contractors to and BNSF (in respect of any work to be performed by
BNSF under this Agreement but not otherwise) will:

         (a)       comply with the EAC; and

         (b)       obtain all permits, approvals, consents and authorizations;



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necessary to perform the work respectively contemplated to be done by them under this
Agreement prior to the commencement of such work and will cooperate with each other where
obtaining any such permits, approvals, consents and authorizations may require the assistance of
the other party.

4.2             The Province will comply with all applicable federal, provincial and
environmental laws in its use of the License Areas including the Environmental Management Act
(British Columbia) and Canadian Environmental Protection Act (Canada) and all regulations
pursuant thereto and the applicable laws of nuisance and negligence and the principle in Rylands
v. Fletcher and other applicable principles of common law (collectively the “Environmental
Laws”). The Province shall not maintain on the License Areas a “treatment”, “storage”,
“transfer”, or “disposal” facility or “underground storage tank” as those terms are defined by the
Environmental Laws. The Province shall also not handle, release or allow the release on the
License Areas of “hazardous waste” or “hazardous substances” as defined by Environmental
Laws.

4.3            The Province shall give or cause to be given notice to BNSF’s Resource
Operations Centre at 800-832-5452 and to the Site Representative of any release of hazardous
substances on or from the License Areas, any material violation of Environmental Laws of which
it becomes aware or any inspection or inquiry of a material nature by any agency of the Province
or by any other governmental authority having jurisdiction and charged with enforcing
Environmental Laws relating to the use of the License Areas. The Province shall use or cause to
be used all reasonable efforts to respond to any release on or from the License Areas and will
provide notice to BNSF of all measures undertaken to investigate, remediate and otherwise
respond to and cure such release or violation.

4.4             The Province shall provide or cause to be provided to BNSF upon request in
writing from BNSF periodically (the periods of time between such periodic requests to be
reasonable) proof reasonably satisfactory to BNSF that the Province is in compliance with the
provisions of sections 4.1 and 4.2. BNSF may, but shall not be obligated to, perform any
obligations of the Province under sections 4.1 and 4.2 which have not been performed by the
Province after having given the Province or any concessionaires of the Province, a reasonable
period of time (not to be less than 30 days except in the case of an emergency) to cure such
default. If the Province has not cured (or caused to be cured) such default within the reasonable
period of time, and if BNSF has as a result itself remedied the default, BNSF shall be entitled to
be reimbursed its reasonable expenses (plus an administration fee of 5%) for such remediation.
Such expenses shall be in accordance with the usual and customary industry practices for such
expenses.

4.5          The Province has inspected and conducted a phase one environmental study (the
“Environmental Assessment”) on the Licence Areas and will rely on the Environmental
Assessment concerning the environmental condition of the Licence Areas.

4.6           The Province waives, to the extent permitted by law, any requirement for BNSF
to provide to the Province a “site profile” under the Environmental Management Act or any
regulation under that Act.




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                              ARTICLE 5 – ADDITIONAL INSURED

5.1            The Province will cause BNSF to be added as an additional insured on any
applicable wrap-up insurance which the Province may require its concessionaire or other
contractor to obtain in relation to the work contemplated by this Agreement.

                            ARTICLE 6 – WORK STOPPAGE BY BNSF

6.1                BNSF will have the right to require the Province or its concessionaire to stop
work if:

         (a)       the Overhead Project Work is being performed in a manner that is substantially
                   contrary to the Plans and Specifications or to any applicable federal or provincial
                   regulatory requirements;

         (b)       if the Overhead Project Work, in BNSF’s opinion, reasonably exercised, is being
                   performed in a manner which is substantially hazardous to BNSF property or the
                   safe and expeditious movement of railway traffic on the BNSF Railway Corridor;
                   or

         (c)       if the Overhead Project Work, in BNSF’s opinion, reasonably exercised, is being
                   performed in a manner which is substantially contrary to any of the provisions of
                   this Agreement.

The work stoppage will continue until all reasonable necessary action is taken by the Province or
its concessionaire to rectify the matters referred to in subparagraphs (a), (b) and (c) above.

6.2             The work stoppage by BNSF in accordance with section 6.1 will not give rise to
any liability on the part of BNSF. BNSF’s right to stop work under section 6.1 is in addition to
any other rights BNSF may have, including but not limited to an action for damages.

6.3            If BNSF proposes to stop work in accordance with section 6.1, it must (except in
the event of an emergency or perceived emergency) give the Province and its concessionaire
prior written notice not less than 30 days prior to stopping work and has given the Province a
period of time which is reasonable to cure the breach. The notice shall be given as follows:

                   to the Province’s Representative:

                   Liisa Hein, Assistant Project Director
                   Suite 2400, 4710 Kingsway
                   Burnaby, B.C.
                   V5H 4M2

                   (or to such other person as the Province may notify BNSF)

                   to the Concessionaire’s Representative:




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                   ______________________________
                   ______________________________

                         ARTICLE 7 – POST SUBSTANTIAL COMPLETION

7.1            After substantial completion of any of the Overhead Crossings no regular on-
going maintenance of the Overhead Crossings will be performed during the fourth quarter of
each calendar year, except for:

         (a)       emergency maintenance and repair of the Overhead Crossings;

         (b)       routine minor road surface repair and maintenance and snow removal and
                   de-icing; and

         (c)       such maintenance and repair to the Overhead Crossings as BNSF has agreed in
                   writing may be performed within work windows approved by BNSF, such
                   approval not to be unreasonably withheld.

7.2            If emergency maintenance and repairs to the Overhead Crossings are required, the
Province or its concessionaire must provide prior notification to BNSF’s Network Operations
Centre (telephone number 800-832-542 or such other number as BNSF may have advised in
writing).

7.3                Maintenance and repair under section 7.1 must not delay BNSF trains.

7.4                After substantial completion of the Overhead Project Work the Province will or
will cause:

         (a)       the Overhead Crossings to be maintained and repaired in accordance with the
                   operation, maintenance and rehabilitation requirements set out in Schedule 5 of
                   the Concession Agreement (a copy of which has been delivered to BNSF);

         (b)       the Overhead Crossings to be kept free of graffiti; and

         (c)       to be put in place and maintained vertical clearance signs which consistently and
                   accurately describe minimum actual vertical clearances from the bottom of the
                   Overhead Crossings to the top of the pavement.

7.5            The Province or its concessionaire must provide to BNSF one set of “as built”
plans (English units) and one set of computer diskettes containing as built CAD drawings of the
Overhead Crossings identifying the software used for the CAD drawings. The “as built” plans
must comply with the BNSF Bridge Requirements as set out in Schedule 3.3 (BNSF Bridge
Requirements).

7.6           If any changes or additions to the BNSF railway tracks or facilities require
changing or expanding one or more of the Overhead Crossings to accommodate the railway
changes or additions, the parties shall use reasonable commercial efforts to agree on the work




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required to effect such changes or additions. The cost of such work shall be for the account of
BNSF.

7.7             The Province, at its sole expense, may alter, reconstruct or replace one or more of
the Overhead Crossings if necessary or desirable to accommodate traffic or other highway
operational requirements. Such alterations, reconstruction or replacement must not encroach
further on the BNSF Railway Corridor than as set out in the Plans and Specifications without the
prior written approval of BNSF, which approval may be withheld by BNSF in its sole discretion.
The parties must execute and deliver in respect of and prior to the commencement of
construction of such alteration, reconstruction or replacement an amending agreement to this
Agreement or a new agreement. If the parties are unable to agree upon an amending agreement
or a new agreement, the matter must be resolved under the Dispute Resolution Procedure
referred to in section 8.1.

                           ARTICLE 8 – DISPUTE RESOLUTION

8.1           Pursuant to section 11.1 of the Railway Master Agreement any matter or dispute
under this Agreement shall be resolved under the Dispute Resolution Procedure set out in
Schedule 11.1 of the Railway Master Agreement. A copy of the Dispute Resolution Procedure is
for convenience annexed hereto as Schedule 8.1.

                         ARTICLE 9 – CONCESSION AGREEMENT

9.1           BNSF understands and acknowledges that the SFPR will be designed, built,
financed, operated, maintained, repaired, managed, rehabilitated and replaced under a
Concession Agreement with a concessionaire and that the rights and obligations under this
Agreement will be exercised and performed by a concessionaire. The concessionaire will be
obligated under a Concession Agreement to comply with the provisions of this Agreement, but a
Concession Agreement will not relieve the Province of its obligations under the terms of this
Agreement.

9.2             BNSF further understands and acknowledges that under a Concession Agreement
the Province (and/or BC Transportation Financing Authority) will be granting a non-exclusive
licence in common with the Province and others authorized by the Province in and over, inter
alia, the Licence Areas in order to design, construct, finance, operate, maintain, repair,
rehabilitate and replace the SFPR including the Overhead Crossings and BNSF hereby consents
to the granting of the licence.

                          ARTICLE 10 – SITE REPRESENTATIVE

10.1           Under Article 12 of the Railway Master Agreement (a copy of which Article 12 is
for convenience annexed hereto as Schedule 10.1) BNSF will engage the services of a dedicated
site representative (defined in the Railway Master Agreement and herein as the “Site
Representative”), at the Province’s cost as set out in Article 12 of the Railway Master
Agreement, to provide the services set out therein in respect of the Railway Master Agreement,
this Agreement and the Temporary Track Bed and Access Statutory Right of Way Agreement.
The Site Representative shall provide the services set out in Article 12 of the Railway Master



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Agreement as they apply to this Agreement and the provisions of Article 12 will apply mutatis
mutandis to this Agreement.

                                     ARTICLE 11 – LIENS

11.1            The Province will itself (or will cause its concessionaire) to cause all builder’s
liens and other liens and claims of liens for labour, services or materials furnished or alleged to
have been furnished with respect to the Overhead Crossings (in this section a “Lien” or “Liens”)
that are registered or affect the Overhead Crossings or any part thereof to be paid, satisfied,
released and vacated, and if registered, to be discharged from title within 30 days (or such longer
period as may be reasonably required in the circumstances provided the Province or its
concessionaire is proceeding with all due diligence) following the date on which the Province or
its concessionaire becomes aware of any Lien or Liens.

                                  ARTICLE 12 - GENERAL

12.1            The covenants and provisions of this Agreement are binding upon and inure to the
benefit of the successors and permitted assigns of the parties hereto. Notwithstanding the
preceding sentence, the parties may assign their rights and obligations under this Agreement
provided that the assignee executes and delivers an agreement in form and substance acceptable
to both the Province and BNSF that the assignee will be bound by and comply with all the
obligations of the assignor under this Agreement. Notwithstanding any assignment of this
Agreement the assignor will not be relieved of any of its obligations under this Agreement.
Despite the foregoing if the Province wishes to assign this Agreement to a non-governmental
entity it will first obtain BNSF’s consent, such consent not to be unreasonably withheld or
delayed.

12.2          Neither termination nor expiration of this Agreement will release either party
from any liability or obligation under this Agreement resulting from any acts, omissions or
events happening prior to the date of termination or expiration.

12.3            To the maximum extent possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law. If any provision
of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision
will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the
provision will be enforceable.

12.4           This Agreement is governed exclusively by and is to be enforced, construed and
interpreted exclusively in accordance with the laws of British Columbia and the laws of Canada
applicable in British Columbia and the laws of British Columbia and of Canada applicable in
British Columbia are the proper law of this Agreement.

12.5          This Agreement (including the Schedules annexed hereto) is the full and complete
agreement between BNSF and the Province with respect to the subject matter herein and
supersedes any and all other prior agreements between the parties hereto, except the Railway
Master Agreement and the Overhead (Grade Separation) Permanent Statutory Right of Way
Agreement.



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12.6            Except as otherwise specifically set out in this Agreement, any notice provided
for herein or concerning this Agreement must be in writing and will be deemed sufficiently given
when sent by prepaid registered mail, or delivered by hand, or sent by e-mail (if receipt is
acknowledged) or by facsimile transmission to the intended recipient as follows:

BNSF Railway Company                                BNSF’s Manager of Public Projects
                                                     __________________________________
                                                     __________________________________

The Province                                            Liisa Hein, Assistant Project Director
                                                        Suite 2400, 4710 Kingsway
                                                        Burnaby, B.C.
                                                        V5H 4M2

                                                        (or to such other person as the Province may
                                                        notify BNSF)

12.7            This Agreement may be executed in two or more counterparts, all of which
together shall constitute one and the same agreement. A counterpart signed by a party hereto and
transmitted by facsimile or by PDF file attachment shall have the same effect as a counterpart
originally signed and delivered by such party.

IN WITNESS WHEREOF the parties have executed this Agreement by the hands of their
respective proper officers duly authorized in that behalf as of the date first above written.


HER MAJESTY THE QUEEN IN RIGHT OF THE
PROVINCE OF BRITISH COLUMBIA
by a duly authorized representative of the Minister of
Transportation and Infrastructure:



For the Minister of Transportation and Infrastructure



BNSF RAILWAY COMPANY
by its authorized signatories:

Per:
         (name)
         (title)

Per:
         (name)
         (title)



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                                      SCHEDULE 2.7
                         EXHIBIT “C” CONTRACTOR REQUIREMENTS


1.01 General

   1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter
    referred to as "Railway" where work is over or under on or adjacent to Railway property
    and/or right-of-way, hereafter referred to as "Railway Property", during the construction of
    the Overhead Crossings.

   1.01.02 The Contractor must plan, schedule and conduct all work activities in accordance
    with the provisions of the Overhead (Grade Separation) Agreement to which this Schedule is
    annexed.

   1.01.03 The Contractor's right to enter Railway's Property is subject to the right of Railway to
    cause the Contractor's work on Railway's Property to stop in accordance with the provisions
    of the Overhead (Grade Separation) Agreement to which this Schedule is annexed.

   1.01.04 The Contractor is responsible for determining and complying with all federal,
    provincial and local governmental laws and regulations, including, but not limited to
    environmental laws and regulations ), and health and safety laws and regulations.

   1.01.05 The Contractor must notify the Railway's Manager Public Projects, telephone
    number ( )       at least thirty (30) calendar days before commencing any work on Railway
    Property. Contractors notification to Railway, must refer to Railroad's file ___________.

   1.01.06 For any falsework above any tracks or any excavations located, whichever is greater,
    within twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the
    top of railway on a 1 ½ horizontal to 1 vertical slope beginning at eleven (11) feet from
    centerline of the nearest track, both measured perpendicular to center line of track, the
    Contractor must furnish the Railway five (5) sets of working drawings showing details of
    construction affecting Railway Property and tracks. The working drawing must include the
    proposed method of installation and removal of falsework, shoring or cribbing, not included
    in the contract plans and two sets of structural calculations of any falsework, shoring or
    cribbing. All calculations must take into consideration railway surcharge loading and must be
    designed to meet American Railway Engineering and Maintenance-of-Way Association
    (previously known as American Railway Engineering Association) Coopers E-80 live
    loading standard. All drawings and calculations must be stamped by a registered professional
    engineer licensed to practice in British Columbia. The Contractor must not begin work until
    notified by the Railway that plans have been approved, which approval will not be
    unreasonably withheld or delayed. The Contractor will be required to use lifting devices
    such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In
    no case will the Contractor be relieved of responsibility for results obtained by the
    implementation of said approved plans.




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   1.01.07 Subject to the movement of Railway's trains, Railway will cooperate with the
    Contractor such that the work may be handled and performed in an efficient manner. The
    Contractor will have no claim whatsoever for any type of damages or for extra or additional
    compensation in the event his work is delayed by the Railway.

1.02 Concessionaire Safety Orientation

   1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter
    Railway Property without first having completed Railway’s Engineering Contractor Safety
    Orientation, found on the web site www.contractororientation.com. The Contractor must
    ensure that each of its employees, subcontractors, agents or invitees completes Railway’s
    Engineering Contractor Safety Orientation through internet sessions before any work is
    performed on the Project. Additionally, the Contractor must ensure that each and every one
    of its employees, subcontractors, agents or invitees possesses a card certifying completion of
    the Railway Contractor Safety Orientation before entering Railway Property. The Contractor
    is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor
    must renew the Railway Contractor Safety Orientation annually. Further clarification can be
    found on the web site or from the Railway’s Representative.

1.03 Railway Requirements

   1.03.01 The Contractor must take protective measures as are necessary to keep railway
    facilities, including track ballast, free of sand, debris, and other foreign objects and materials
    resulting from his operations. Any damage to railway facilities resulting from Contractor's
    operations will be repaired or replaced by Railway and the cost of such repairs or
    replacement must be paid for by the Contractor.

   1.03.02      The Contractor must notify the Railway's Division Superintendent
    ________________________ at (_____)_________________ and provide blasting plans to
    the Railway for review seven (7) calendar days prior to conducting any blasting operations
    adjacent to or on Railway's Property.

   1.03.03 The Contractor must abide by the following temporary clearances during
    construction:

             15’        Horizontally from centerline of nearest track
             21’-6”     Vertically above top of rail
             27'-0"     Vertically above top of rail for electric wires carrying less than 750 volts
             28'-0"     Vertically above top of rail for electric wires carrying 750 volts to 15,000
                         volts
             30'-0"     Vertically above top of rail for electric wires carrying 15,000 volts to
                         20,000 volts
             34'-0"     Vertically above top of rail for electric wires carrying more than 20,000
                         volts

   1.03.04 Upon completion of construction, the following clearances shall be maintained:


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             25’      Horizontally from centerline of nearest track
             23’-3 ½” Vertically above top of rail

   1.03.05 Any infringement within federal or provincial statutory clearances due to the
    Contractor's operations must be submitted to the Railway and to the Province and must not
    be undertaken until approved in writing by the Railway (such approval not to be
    unreasonably withheld), and until the Province has obtained or caused to be obtained any
    necessary authorization from the applicable federal or provincial regulatory authority for the
    infringement.

   1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the
    option of installing tell-tales or other protective devices Railway deems necessary for
    protection of Railway operations. The cost of tell-tales or protective devices will be borne by
    the Contractor.

   1.03.07 The details of construction affecting the Railway's Property and tracks not included
    in the contract plans must be submitted to the Railway by the Contractor for approval before
    work is undertaken and this work must not be undertaken until approved by the Railway,
    such approval not to be unreasonably withheld.

   1.03.08 At other than public road crossings, the Contractor must not move any equipment or
    materials across Railway's tracks until permission has been obtained from the Railway. The
    Contractor must obtain a "Temporary Private Crossing Agreement" from the Railway prior to
    moving his equipment or materials across the Railways tracks. The temporary crossing must
    be gated and locked at all times when not required for use by the Contractor. The temporary
    crossing for use of the Contractor will be at the expense of the Contractor.

   1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil,
    petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and
    Contractor must immediately notify the Railway's Resource Operations Center at 1(800)
    832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor
    must not allow Railway Property to become a treatment, storage or transfer facility as those
    or similar terms are defined in any federal or provincial analogue or other regulatory scheme.

   1.03.10 The Contractor upon completion of the work covered by this contract, must
    promptly remove from the Railway's Property all of Contractor's tools, equipment,
    implements and other materials, whether brought upon said property by said Contractor or
    any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause
    Railway's Property to be left in a condition acceptable to the Railway's representative.

1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan

   1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track
    must develop and implement a Roadway Worker Protection/On Track Safety Program and
    work with Railway Project Representative to develop an on track safety strategy as described


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                                                -4-


    in the guidelines listed in the on track safety portion of the Safety Orientation. This Program
    must provide Roadway Worker protection/on track training for all employees of the
    Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site
    through job safety briefings. Additionally, each Contractor must develop and implement the
    Safety Action Plan, as provided for on the web site www.contractororientation.com, which
    will be made available to Railway prior to commencement of any work on Railway Property.
    During the performance of work, the Contractor must audit its work activities. The
    Contractor must designate an on-site Project Supervisor who will serve as the contact person
    for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and
    Material Safety Datasheets (MSDS), at the job site.

1.05 Protection of Railway Facilities and Railway Flagger Services:

   1.05.01 The Contractor must give Railway’s Roadmaster (telephone _________) a minimum
    of thirty (30) calendar days advance notice when flagging services will be required so that
    the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger’s position). If
    flagging services are scheduled in advance by the Contractor and it is subsequently
    determined by the parties hereto that such services are no longer necessary, the Contractor
    must give the Roadmaster five (5) working days advance notice so that appropriate
    arrangements can be made to abolish the position pursuant to union requirements.

   1.05.02 Unless determined otherwise by Railway’s Project Representative (whose contact
    details are ________________), Railway flagger and protective services and devices will be
    required and furnished when Contractor’s work activities are located over, under and/or
    within twenty-five (25) feet measured horizontally from centerline of the nearest track and
    when cranes or similar equipment positioned beyond 25-feet from the track centerline could
    foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto
    for the following conditions:

   1.05.02a When in the opinion of the Railway's Project Representative it is necessary to
    safeguard Railway's Property, employees, trains, engines and facilities.

   1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the
    opinion of Railway's Project representative, track or other Railway facilities may be subject
    to movement or settlement.

   1.05.02c When work in any way interferes with the safe operation of trains at timetable
    speeds.

   1.05.02d When any hazard is presented to Railway track, communications, signal, electrical,
    or other facilities either due to persons, material, equipment or blasting in the vicinity.

   1.05.02e Special permission must be obtained from the Railway [NTD: BNSF to provide
    official to contact and that person’s contact details.] before moving heavy or cumbersome
    objects or equipment which might result in making the track impassable.



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                                               -5-


   1.05.03 Flagging services will be performed by qualified Railway flaggers.

   1.05.03a Flagging crew generally consists of one employee. However, additional personnel
    may be required to protect Railway Property and operations, if deemed necessary by the
    Railway’s Project Representative.

   1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8)
    hour basic day.
                        Section 21
   1.05.03c The cost of flagger services provided by the Railway, when deemed necessary by
    the Railway's Project Representative, will be borne by the Contractor. The estimated cost for
    one (1) flagger is         for an eight (8) hour basic day with time and one-half or double
    time for overtime, rest days and holidays. The estimated cost for each flagger includes
    vacation allowance, paid holidays, Railway and unemployment insurance, public liability and
    property damage insurance, health and welfare benefits, transportation, meals, lodging and
    supervision. Negotiations for Railway labour or collective bargaining agreements and rate
    changes authorized by appropriate federal authorities may increase actual or estimated
    flagging rates. The flagging rate in effect at the time of performance by the Contractor
    hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph.

   1.05.03d The average train traffic on this route is ______ freight trains per 24-hour period at
    a timetable speed ______ MPH and ______ passenger trains at a timetable speed of ______
    MPH.

1.06 Contractor General Safety Requirements

   1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement
    of trains and equipment can occur at any time and in any direction. All work performed by
    concessionaires within 25 feet of any track must be in compliance with applicable rules and
    regulations of Transport Canada.

   1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must
    be conducted with all personnel involved with the task and repeated when the personnel or
    task changes. If the task is within 25 feet of any track, the job briefing must include the
    Railway's flagger, as applicable, and include the procedures the Contractor will use to protect
    its employees, subcontractors, agents or invitees from moving any equipment adjacent to or
    across any Railway track(s).

   1.06.03 Workers must not work within 25 feet of the centerline of any track without an on
    track safety strategy approved by the Railway’s Project Representative. When authority is
    provided, every contractor employee must know: (1) who the Railway flagger is, and how to
    contact the flagger, (2) limits of the authority, (3) the method of communication to stop and
    resume work, and (4) location of the designated places of safety. Persons or equipment
    entering flag/work limits that were not previously job briefed, must notify the flagger
    immediately, and be given a job briefing when working within 25 feet of the center line of
    track.


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                                               -6-



   1.06.04 When Contractor employees are required to work on the Railway Property after
    normal working hours or on weekends, the Railway's Project Representative must be
    notified. A minimum of two employees must be present at all times.

   1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under
    suspicion of being under the influence of drugs or alcohol, or in the possession of same, will
    be removed from the Railway's Property and subsequently released to the custody of a
    representative of Contractor’s management. Future access to the Railway's Property by that
    employee will be denied.

   1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be
    reported immediately to the Railway's Project Representative. Any vehicle or machine
    which may come in contact with track, signal equipment, or structure (bridge) and could
    result in a train derailment must be reported immediately to the Railway’s Project
    Representative and to the Railway's Resource Operations Center at 1(800) 832-5452. Local
    emergency numbers are to be obtained from the Railway’s Project Representative prior to the
    start of any work and must be posted at the job site.

   1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or
    other deadly weapons in their possession while working on Railway's Property.

   1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet
    applicable federal and provincial specifications. Current Railway personnel protective
    equipment requirements are listed on the web site, www.contractororientation.com,
    however, a partial list of the requirements include: a) safety glasses with permanently
    affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes,
    above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work wear.
    The Railroad’s representative in charge of the project is to be contacted regarding local
    specifications for meeting requirements relating to hi-visibility work wear. Hearing
    protection, fall protection, gloves, and respirators must be worn as required by provincial and
    federal regulations. (NOTE –If there is a discrepancy between the information contained
    on the web site and the information in this paragraph, the web site will govern.)

   1.06.09 The Contractor must not pile or store any materials, machinery or equipment closer
    than 25 feet to the center line of the nearest Railway track. Materials, machinery or
    equipment must not be stored or left within 250 feet of any highway/rail at-grade crossings,
    where storage of the same will interfere with the sight distances of motorists approaching the
    crossing. Prior to beginning work, the Contractor must establish a storage area with
    concurrence of the Railway's Project Representative.

   1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked
    machines or equipment must be in gear with brakes set and if equipped with blade, pan or
    bucket, they must be lowered to the ground. All machinery and equipment left unattended on
    Railway's Property must be left inoperable and secured against movement. (See internet
    Engineering Contractor Safety Orientation program for more detailed specifications)


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                                               -7-



   1.06.11 Workers must not create and leave any conditions at the work site that would
    interfere with water drainage. Any work performed over water must meet all federal,
    provincial and local regulations.

   1.06.12 All power line wires must be considered dangerous and of high voltage unless
    informed to the contrary by proper authority. For all power lines the minimum clearance
    between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet;
    200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000
    KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be
    maintained. A person must be designated to observe clearance of the equipment and give a
    timely warning for all operations where it is difficult for an operator to maintain the desired
    clearance by visual means.

1.07 Excavation

   1.07.01 Before excavating, the Contractor must determine whether any underground pipe
    lines, electric wires, or cables, including fibre optic cable systems are present and located
    within the Project work area. The Contractor must determine whether excavation on
    Railway’s Property could cause damage to buried cables resulting in delay to Railway traffic
    and disruption of service to users. Delays and disruptions to service may cause business
    interruptions involving loss of revenue and profits. Before commencing excavation, the
    Contractor must contact BNSF’s Field Engineering Representative whose contact details are
    ( provide contact details ). All underground and overhead wires will be considered HIGH
    VOLTAGE and dangerous until verified with the company having ownership of the line. It
    is the Contractor's responsibility to notify any other companies that have underground
    utilities in the area and arrange for the location of all underground utilities before
    excavating.

   1.07.02 The Contractor must cease all work and notify BNSF’s Field Engineering
    Representative before continuing excavation in the area if obstructions are encountered
    which do not appear on drawings. If the obstruction is a utility and the owner of the utility
    can be identified, then the Contractor must also notify the owner immediately. If there is any
    doubt about the location of underground cables or lines of any kind, no work must be
    performed until the exact location has been determined. There will be no exceptions to these
    instructions.

   1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations
    and, regardless of depth, must be shored where there is any danger to tracks, structures or
    personnel.

   1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered,
    guarded and/or protected when not being worked on. When leaving work site areas at night
    and over weekends, the areas must be secured and left in a condition that will ensure that
    Railway employees and other personnel who may be working or passing through the area are
    protected from all hazards. All excavations must be back filled as soon as possible.


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                                                -8-



1.08 Hazardous Waste, Substances and Material Reporting

   1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or
    other deleterious material, including but not limited to any non-containerized commodity or
    material, on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands
    or waterways, while performing any work under this Agreement, Contractor must
    immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of
    such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents
    and/or third parties: and (c) exercise due care with respect to the release, including the taking
    of any appropriate measure to minimize the impact of such release.

1.09 Personal Injury Reporting

   1.09.01 The Railway is required to report certain injuries as a part of compliance with
    Canadian Transportation Accident Investigation and Safety Board Act reporting
    requirements. Any personal injury sustained by an employee of the Contractor, subcontractor
    or Contractor's invitees while on the Railway's Property must be reported immediately (by
    phone mail if unable to contact in person) to the Railway's Project Representative. The
    Non-Employee Personal Injury Data Collection Form attached hereto is to be completed and
    sent by Fax to the Railway at 1(817) 352-7595 and to the Railway’s Project Representative
    no later than the close of shift on the date of the injury.




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                                                -9-


NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION

INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL
REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL
REGULATIONS ONLY AND IS NOT INTENDED TO PRESUME ACCEPTANCE OF
RESPONSIBILITY OR LIABILITY.


1. Accident City/St                              2. Date:                        Time:
   County:                               3. Temperature:                      4. Weather
   (if non-Railway location)

5. Social Security #

6. Name (last, first, mi)

7. Address: Street:                             City:                 Prov.         Postal Code:

8. Date of Birth:                            and/or Age             Gender:
                                                     (if available)

9. (a) Injury:                                                         (b) Body Part:
   (i.e. (a) Laceration (b) Hand)

11. Description of Accident (To include location, action, result, etc.):




12. Treatment:
   ? First Aid Only
   ? Required Medical Treatment
   ? Other Medical Treatment

13. Dr. Name                                                                  30. Date:

14. Dr. Address:
    Street:                                     City:                         St:         Zip:

15. Hospital Name:

16. Hospital Address:
    Street:                                     City:                         St:         Zip:




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                            - 10 -


17. Diagnosis:



FAX TO
RAILWAY AT (817) 352-7595
AND COPY TO
RAILWAY ROADMASTER FAX




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                                      SCHEDULE 3.3
                         EXHIBIT “F” BNSF BRIDGE REQUIREMENTS



BRIDGE DESIGN, PLANS & SPECIFICATIONS:

Except for the design of temporary falsework and shoring, BNSF review of the Overhead
Crossings (the “Structure”) plans will be limited to the vertical and horizontal clearances, sight
distance for existing train signals, foundation dimensions and drainage characteristics as they
relate to existing and future tracks. BNSF will not review structural design calculations for the
permanent Structure unless a member or members are influenced by railroad live loads.

Temporary falsework and shoring plans and calculations must be reviewed and approved by
BNSF prior to beginning construction. The contractor shall perform an independent review of
the design calculations for temporary falsework and shoring prior to submitting them to BNSF
for approval. Temporary construction clearances must be no less than 15 feet measured
horizontally from the centerline of the nearest track and 21 feet-6inches measured vertically from
the top of rail of the most elevated track to the bottom of lowest temporary falsework member.
Provincial regulatory agencies may have more restrictive requirements for temporary railroad
clearances.

For the permanent Structure, the contractor will submit plans showing the least horizontal
distance from the centerline of existing and future tracks to the face of the nearest member of the
proposed Structure. The location of the least horizontal distance must be accurately described
such that BNSF can determine where it will occur in both the horizontal and vertical plane. If
the permanent member is within 25 feet of the nearest track (or future track), collision walls shall
be incorporated into the permanent Structure design according to American Railway Engineering
and Maintenance Association Manual of Recommended Practice - Chapter 8 - Article 2.1.5.

For the permanent Structure, the contractor will submit plans showing the least vertical clearance
from top of the most elevated rail of existing and future tracks to the lowest point of the proposed
Structure. A profile of the existing top of rail elevation shall be plotted on the bridge plans. The
profile shall extend for 500 feet in each direction of the proposed overpass and a separate profile
shall be plotted for each track. If the existing top of rail profile(s) is not uniform such that a sag
exists in the vicinity of the proposed Structure, the permanent Structure vertical clearance shall
be increased sufficiently to accommodate a raise in the track profile to remove the sag. Prior to
beginning construction of the permanent Structure, the top of rail elevations should be checked
and verified that they have not changed from the assumed elevations utilized for the design of the
bridge.

The contractor shall communicate with the Railway’s Project Representative regarding site
specific train speeds, train density, and general safety requirements for men and equipment
working near live tracks. Any invitation to bid and specifications for the Structure must be
submitted to BNSF for review and approval prior to letting of bids for the Project.




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BRIDGE CONSTRUCTION:

Prior to the contractor entering BNSF’s right-of –way or property, the contractor must conduct a
pre-construction meeting with the Railway’s Project Representative to reiterate the safety
requirements of construction activity adjacent to live tracks.

During construction, BNSF may require an independent engineering inspector to be present
during certain critical activities of the Project Work, including but not limited to: driving
foundation piles, erecting falsework, construction of shoring and retaining walls, placing
concrete, placing soil backfill and compaction processes. The contractor shall reimburse BNSF
for all reasonable costs of supplemental inspection services.

Within 90 days of the conclusion of the Project Work the contractor will provide BNSF with a
complete electronic set of the bridge plans labelled “As Built”. Those plans will reflect any and
all deviations from the original plans that occurred during construction. The “As Built” plans
will be submitted in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg
format. Electronic plans are to be submitted in the original format used for CAD plan preparation
and not converted to another format prior to submission. Actual measured “as constructed”
clearances shall be shown as well as depth, size and location of all foundation components. The
plans shall show dimensioned locations of existing and relocated utilities.


BRIDGE MAINTENANCE:

The contractor will be responsible for maintenance and repair of the Structure including the earth
retention components, embankment slopes, erosion control, surface drainage, fencing, deck
drains, landscaping, paint, walkways, handrails, lighting, and other improvements associated
with the Project Work.

Fencing and other pedestrian access controls within BNSF’s right-of-way and incorporated into
the Project Work shall be designed and maintained by the contractor. Trespasser control shall be
the responsibility of the contractor. Graffiti removal will be the responsibility of the contractor.


BRIDGE INSPECTION:

The contractor will conduct annual routine structural inspections. In the event of an earthquake,
fire, flood, damage from vehicular impacts or other emergent situations, the contractor will
provide an immediate inspection by qualified personnel and notify BNSF of damage that may
affect safe passage of trains. If necessary the contractor will embargo weights or provide lane
closures or other such measures to protect the structural integrity of the Structure such that there
can be continuous safe passage of trains until repairs are made.




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                                              -3-


BRIDGE ALTERATIONS:

Except as provided otherwise by this Agreement, there will be no alterations made to the
Structure that will alter the railroad vertical or horizontal clearances provided by the original
design. Pipelines will be not be added or attached to the Structure without first submitting plans
and calculations to BNSF for review and approval, such approval not to be unreasonably
withheld or delayed.




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                                          SCHEDULE 3.19
                                Article 7 - Drainage Design Criteria


7.1      Order of Precedence

Drainage Design and Construction shall be in accordance with the criteria contained in this
Article and the following codes and standards and, if there is any conflict between the criteria
contained in this Article and any of the Reference Documents, the following shall apply in
descending order of precedence:

(a)      the criteria contained in this Article;

(b)      BC Supplement to CAN/CSA-S6-06;

(c)      BC Supplement to TAC;

(d)      Best Management Practices for Highway Maintenance Activities;

(e)      Culvert and Fish Passage Fact Sheet;

(f)      applicable requirements of the relevant Municipality;

(g)      Stormwater Planning Guidebook;

(h)      GVRD Best Management Practices for Stormwater;

(i)      Stormwater Design Guidelines - GVRD; and

(j)      Urban Stormwater Guidelines.

7.2      Specific Design Requirements

In addition to the requirements of the Reference Documents listed above, the overall design of
the drainage system shall meet the following requirements:

(a)      The Concessionaire shall develop and implement a stormwater management plan, which
         shall be in accordance with the Reference Documents, including the SFPR Stormwater
         Management Plan Outline.

(b)      Design parameters:

                   (i)   The design storm shall be a 100-year return period, for a 1-day, 2-day or
                         5-day duration storm event whichever generates critical hydraulic
                         conditions in the impacted drainage system that is within the watershed
                         either upstream or downstream of the Concession Highway (an
                         “Impacted Drainage System”); and




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                   (ii)    The design boundary condition for each of the storm events referred to in
                           Section 7.2(b)(i) of this Part is a tidal surge event when the highest water
                           surface elevations at the outfalls coincide with the peak of the design
                           storm event.

(c)      Performance Criteria:

                   (i)     The existing maximum water surface elevations within the Impacted
                           Drainage System shall not increase.

                   (ii)    The total volume of discharge at the system outfalls through pumps shall
                           not increase from the existing during the design storm events and during
                           the drainage season.

                   (iii)   Project runoff shall not increase erosion potential in receiving systems.

(d)      The Concessionaire shall demonstrate the hydraulic performance of the Impacted
         Drainage System using appropriate hydrology and hydraulic models.

(e)      Description of the performance and performance criteria of the proposed drainage system
         shall be provided in a drainage design report.

(f)      It is the responsibility of the Concessionaire to obtain approval of the owner and/or
         operator of the conveyance systems to which the discharge of stormwater runoff from the
         Project Site is made. The design of the drainage systems shall comply with the criteria
         and requirements of the Municipality and other owners of the receiving systems.

(g)      The drainage Design shall be in accordance with the Contamination Management Plans
         and the Railway Agreements.

7.3      Stormwater Quality Criteria

(a)      The Concessionaire shall meet the performance objectives for the Surface Water Quality
         and Sediment Control Plan as outlined in the Environmental Management Plan
         Framework.

(b)      The Concessionaire shall determine existing water quality parameters at all significant
         connection points to the receiving systems.

(c)      The drainage system shall incorporate stormwater quality treatment that maintains or
         improves existing water quality in the receiving systems.

(d)      The drainage system shall incorporate spill containment features.

(e)      The Concessionaire shall manage water quality at or before discharge points into
         watercourses supporting existing fish or fish habitats (Class A or A(O) fish or fish
         habitat) through the use of stormwater management facilities and current water quality
         improvement Best Management Practices.



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                                                 -3-


(f)      Design of new or replacement culvert crossings and other stormwater management
         infrastructure shall take into account the Concessionaire’s Environmental Obligations in
         relation to length, material, bottom treatments, ability to pass fish or provide for wildlife
         passage, and other relevant features considered necessary by Environmental Authorities.

(g)      The Concessionaire shall design the stormwater management infrastructure so that there
         is no reduction in base flows to watercourses that currently support existing fish or fish
         habitats.




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                                  SCHEDULE 4.1
                         Environmental Assessment Certificate




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                             SCHEDULE 5.2
                         ISO Form CG00-35-10-93




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                         -2-




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                         -3-




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                         -4-




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                         -5-




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                         -7-




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                                       SCHEDULE 8.1
                              DISPUTE RESOLUTION PROCEDURE


1.       Unless expressly provided otherwise in the Agreement:

         (a)       any dispute between the Province and BNSF with respect to the subject matters of
                   this Agreement or any of the agreements or instruments annexed as Schedules to
                   this Agreement (all of which are for convenience hereafter collectively referred to
                   as “this Agreement”), whether or not the provisions of this Agreement
                   specifically refer the dispute to the Dispute Resolution Procedure;

         (b)       any matter or dispute between the parties to this Agreement that, by the express
                   terms of this Agreement is to be resolved or determined by the Dispute Resolution
                   Procedure; and

         (c)       any disagreement between the Province and BNSF with respect to any matter that,
                   by the express terms of any of this Agreement, is to be agreed upon by the parties;

shall be resolved in accordance with the Dispute Resolution Procedure set out in this Schedule
which will be followed in the order set out below unless the parties both agree otherwise in
writing or any of this Agreement expressly otherwise provide.

2.      For the purpose of this Dispute Resolution Procedure, “Business Day” means a day other
than a Saturday, Sunday or statutory holiday in British Columbia.

3.     The parties will each designate a person in a senior capacity to act as a representative
under this Dispute Resolution Procedure (each, the “Party Representative”).

4.     The Province and BNSF agree that, both during and after the performance of the work to
be performed under this Agreement, each of them will:

         (a)       identify and address all disputes in a prompt and timely manner so as to facilitate
                   the resolution of disputes as they arise;

         (b)       use all reasonable efforts to resolve any disputes arising between them by
                   amicable negotiations; and

         (c)       provide frank, candid and timely disclosure of all relevant facts, information and
                   documents to facilitate the resolution of any dispute.

5.     When a dispute occurs either party may give written notice of the dispute (a “Dispute
Notice”) to the other party, and the parties will use all reasonable efforts as set out in section 4 to
resolve the dispute.

6.     If the Party Representatives fail to resolve the dispute within five Business Days after
delivery of the Dispute Notice, the dispute will be referred for resolution to the  for the Province




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and the  for BNSF (“Senior Management”) or such other officers or managers as either party
may from time to time by notice to the other party specify for such purpose.

7.     If Senior Management fails to resolve the dispute within ten Business Days (or such other
period of time as the parties may agree) after the dispute has been referred to them, either party
may initiate the appointment of a referee (the “Referee”) who will render a non-binding decision
with respect to the dispute.

8.       The Referee will be selected as follows:

         (a)       a party will submit to the other party in writing the names of three acceptable
                   candidates for Referee who are immediately available to perform the role of
                   Referee in Vancouver, British Columbia. The Referee will be the person who the
                   parties agree upon as Referee; or

         (b)       if the parties have not agreed upon a Referee within three Business Days after a
                   submission of names by one party to the other as provided above, then the
                   Referee will be selected pursuant to the Rules of the British Columbia
                   International Commercial Arbitration Centre (Procedure for Cases under the
                   B.C.I.C.A.C. Rules).

9.     Upon selection of the Referee, the Province and BNSF will enter into an agreement for
services with the Referee and the Referee’s fees, disbursements and other costs, as agreed
between the parties and the Referee, will be shared equally by the Province and BNSF.

10.     Once a Referee has been appointed to review a dispute then, subject to the timely
availability of that Referee and the willingness of that Referee to do so, and unless the Province
and BNSF otherwise agree, that Referee will be the Referee to review all other disputes that may
arise between the Province and BNSF.

11.    Within seven Business Days after the selection of the Referee, the Province and BNSF
will each submit to the Referee and the other party a complete list of the issues in dispute, the
remedies sought, and a list of documents and any other information they believe relevant to the
dispute.

12.      The Referee may in the course of the investigation:

         (a)       require either party to supply or prepare for examination by the Referee and the
                   other party, any document or other information the Referee considers necessary;

         (b)       inspect the applicable work under this Agreement, giving reasonable notice to
                   each party of the time when, and the place where, the Referee intends to conduct
                   any inspection;

         (c)       convene meetings of the parties to discuss the issues in dispute in the presence of
                   the Referee; and




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                                                   -3-


         (d)       take evidence from such witnesses and experts, as the Referee may deem
                   appropriate, in the presence of the Province and BNSF.

13.     Neither the Province nor BNSF will unduly delay or impede the Referee in completing
the investigation.

14.    Not later than 14 Business Days after the dispute has been referred to the Referee, the
Referee will provide a written report setting out the Referee’s decision.

15.     If either party disputes the Referee’s decision, the disputing party shall give written
notice to the other party within ten Business Days after receipt of the Referee’s report setting out
fully the reasons for disagreeing with the Referee (a “Referee Dispute Notice”).

16.     After delivery of a Referee Dispute Notice, the dispute will be determined by arbitration
if the parties agree, or failing agreement, in a court of competent jurisdiction in Vancouver,
British Columbia and courts of appeal therefrom.

17.      In the event the parties agree to arbitration, the arbitration will:

         (a)       be determined by a single arbitrator;

         (b)       be governed by the Rules of the British Columbia International Commercial
                   Arbitration Centre, and the arbitrator shall be agreed upon by the parties, and
                   failing agreement between the parties, will be appointed by the International
                   Commercial Arbitration Centre under its Rules; and

         (c)       will take place in Vancouver, British Columbia and will otherwise be governed by
                   the laws of British Columbia including the Commercial Arbitration Act (British
                   Columbia).

18.    In the event that the dispute which is the subject matter of arbitration pursuant to
paragraph 17 arises in connection with the parties failing to reach agreement on any matter
which, pursuant to any provision of this Agreement, is to be agreed upon by the parties, each
party expressly authorizes and directs the arbitrator to establish the terms of the agreement
between the parties addressing the matter on which the parties were unable to reach agreement,
which determination will, if the parties so agree prior to the rendering of the arbitrator’s decision,
be binding on the parties.

19.    If neither party disputes the Referee’s decision within the time and in the manner
provided for in paragraph 15, the Referee’s decision will be binding on the parties.

20.    The Referee’s decision will be admissible in any arbitration or court proceedings in
connection with the dispute.

21.      Responsibility for any arbitration costs will be determined by the arbitrator.

22.   Any of the times specified in this Schedule may be varied, on a dispute by dispute basis,
by mutual agreement between the Province and BNSF.


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                                              -4-


23.     No party shall be precluded from initiating a proceeding in a court of competent
jurisdiction for the purpose of obtaining any emergency or provisional remedy to protect its
rights that may be necessary and that is not otherwise available under this Agreement, including
temporary and preliminary injunctive relief and restraining orders.

24.    At all times, notwithstanding the existence of any dispute, the Province and BNSF shall
continue to perform their respective obligations in accordance with the provisions of this
Agreement without prejudice to the right to contest, dispute and challenge the relevant matter in
accordance with the provisions of this Agreement.

25.   A Referee may, at any time, be discharged and replaced by another Referee by mutual
agreement of the Province and BNSF.




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                                  SCHEDULE 10.1
                COPY OF ARTICLE 12 OF RAILWAY MASTER AGREEMENT
                              SITE REPRESENTATIVE


12.1 Concurrently with the execution of this Agreement, BNSF shall engage a dedicated site
representative who shall be a British Columbia Professional Engineer (the “Site
Representative”) to provide the following services under this Agreement, the Temporary Track
Bed and Access Road Statutory Right of Way Agreement and the Overhead (Grade Separation)
Agreement (collectively the “SFPR Agreements”):

         (h)       engineering services including, without limitation, the formulation of engineering
                   plans and designs and any plans and specifications which may be necessary for
                   BNSF to prepare for any work which BNSF is obligated to perform under any of
                   the SFPR Agreements;

         (i)       the review of all plans and specifications, designs and geotechnical action plans
                   and any modifications thereof that the Province or its concessionaire or
                   contractors may be required to provide to BNSF for review under any of the
                   SFPR Agreements;

         (j)       the approval of all plans, specifications, designs and geotechnical action plans and
                   any modifications thereof that the Province or its concessionaire or contractors
                   may be required to provide to BNSF for approval under any of the SFPR
                   Agreements;

         (k)       attending at the work site at all times that work is being carried out to coordinate
                   between BNSF and the Province and/or its concessionaire or contractors all
                   construction work contemplated in the SFPR Agreements including coordination
                   of work windows and work blocks;

         (l)       assisting the Province’s concessionaire or contractors in obtaining permits,
                   consents, approvals, certificates, licences and authorizations from applicable
                   governmental authorities having jurisdiction including, without limitation,
                   municipal, regional or local government authority, boards, commissions or
                   tribunals and from utilities necessary to effect the work required to be done by the
                   concessionaire under any of the SFPR Agreements; and

         (m)       providing flagging when required under the SFPR Agreements.

12.2 Prior to engagement of the Site Representative, BNSF and the Province shall agree on the
rates and disbursement costs to be paid to the Site Representative for the Site Representative’s
services and on a cap on the total remuneration and disbursements payable. The Province shall
reimburse BNSF for the remuneration and disbursements paid to the Site Representative up to
the level of the agreed cap. BNSF shall provide the Province with detailed monthly invoices for
the remuneration and disbursements together with such evidence of the amounts paid and, where
applicable, receipts in accordance with the Province’s usual and customary practices. The



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Province will pay all invoices which have been rendered in accordance with the foregoing within
[60] days of receipt of the invoice.

12.3 The terms under which the Site Representative is engaged must provide that all reviews
and/or approvals which the Site Representative is called upon to make must be made and
communicated to the Province or its concessionaire or contractors within 14 days of receipt by
the Site Representative of the request for review and/or approval. Failure by the Site
Representative to respond within the 14 day period shall be deemed to be approval by the Site
Representative and by BNSF of the request for review and/or approval.

12.4 The Site Representative must be available on site during all normal construction hours for
the work under the SFPR Agreements and must be available by cell phone for emergencies 24
hours, 7 days a week.

12.5 The engagement of the Site Representative shall terminate upon total completion of the
work to be done under the SFPR Agreements. If there is disagreement on when the work has
been totally completed, the matter shall be resolved by the Dispute Resolution Procedure.




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