A249 STOCKBURY (M2) TO SHEERNESS
DBFO Contract
THE SECRETARY OF STATE FOR TRANSPORT
AND
SHEPPEY ROUTE LIMITED
INDEX
Part I - General
Page No
1.
Definitions and Interpretation
1
2.
Documentation
50
3.
The Project
55
4.
Guarantees
62
Part II - Operations
6.
Pre-Commencement Period
64
7.
Commencement
68
8.
Land
70
9.
Partnering
78
10.
Security of the Site
79
11.
Design and Construction
81
12.
Programme
87
13.
Inspection and Completion
92
14.
Operation and Maintenance
101
15.
Traffic Management
108
16.
Signing and Communications
112
17.
Defects in the Existing Road
114
18.
Fossils and Antiquities
116
19.
Handback
119
21.
Secretary of State's Obligations
151
Part III - Relationships and Monitoring
22.
Representatives
152
23.
Management Systems
154
24.
Reports and Information
160
25.
Records
165
26.
Monitoring of Performance
167
27.
Statutory Powers
173
28.
Statutory Undertakers
176
29.
Other Functions of the Secretary of State
183
30.
Other Third Parties
189
Part V - Change, Liabilities and Termination
34.
Change Procedure
212
35.
Change in Law
213
36.
Additional Works and Subsequent Schemes
215
37.
Force Majeure
217
38.
Warranties, Undertakings and Disclaimers
220
39.
Indemnities
223
40.
Default
230
41.
Termination by the DBFO Co
238
42.
Non-Default Termination
240
43.
Effect of Termination
242
44.
Compensation on Termination
247
Part VI - Miscellaneous
45.
Assignment, Sub-Contracting and Change in Control
261
46.
Notices
268
47.
Consents and Approvals
270
48.
Taxes
272
49.
Intellectual Property
277
50.
Confidentiality
280
51.
Agency
283
52.
Disputes Resolution Procedure
284
53.
Whole Agreement
285
54.
Waiver
286
55.
Amendments
287
56.
Conflicts of Interest
288
57.
Governing Law and Jurisdiction
289
58.
Contracts (Rights of Third Parties) Act
290
59.
Competition Act
291
60.
Counterparts
292
61.
Recycled Paper
293
INDEX OF SCHEDULES
Schedule 2
Programme
Part 1
DBFO Co's Programme
Part 2
Submission Requirements for DBFO Co's Programme and DBFO Co's
Works Programme
Schedule 3
Land
Part 1
Existing Road
Part 2
New Road
Part 3
Connecting Roads
Part 4
Shared Facilities
Part 5
Not used
Part 6
Scheme Orders
Part 7
Drawings
Schedule 4
Construction and Handback Requirements
Part 1
Scheme Specific Core Construction Requirements
Part 2
Construction Requirements
Annex 1
Standards and Advice Notes
Annex 2
Amendments to Standards and Advice Notes
Annex 3
List of Circular Roads and Other Documents
Annex 4
Amendments to Circular Roads and Other Documents
Annex 5
Amendments to the Specification for Highway Works
Annex 6
Roadworks and General Requirements
Annex 7
Structures Requirements for New Structures
Annex 8
Structures Requirements for Existing Structures
Annex 10
Environmental Requirements
Part 3
Design and Certification Procedure
Section A
General
Section B
Alternative Proposals
Annex 1
Index of Certificates
Annex 2(1)
Model Technical Appraisal Form
Annex 2(2)
Model Strengthened Earthwork Appraisal Form
Annex 3
Review Times for Technical Appraisal Forms
(No Alternative Proposals)
Annex 4
Review Times for Technical Appraisal Forms
(Alternative Proposals Included)
Annex 5
Review Times for Structures Certification
Annex 6
Review Times for Technical Appraisal Forms
(Temporary Works)
Part 4
Handback Requirements
Part 5
Drawings
Part 6
Noise Insulation Requirements
Part 7
Preparation of Orders and Statutory Notices Required for the opening
of the New Road
Part 3
Environmental Management System Documentation
Part 4
Health & Safety Management System Documentation
Schedule 6
Operation and Maintenance
Part 1
Scheme Specific Core O&M Requirements
Part 2
O&M Requirements
Section 1 Provisions of General Application
Annex 1/1
Included Off-Site Equipment
Annex 1/2
Excluded On-Site Equipment
Section 2 Roadworks
Section 3 Routine Maintenance
Annex 3/1
Undertakings in Respect of Highway
Drainage
Annex 3/2
Fences
Section 4 Surveys and Remedial Maintenance Works
Section 5 Winter Maintenance
Section 6 Maintenance of Highway Structures
Section 7 Environmental Requirements
Annex 7/1
Qualifications of Environmental Team
Appointments
Part 3
Drawings
Part 4
O&M Standards
Schedule 7
Representatives
Part 1
Department's Nominee
Part 2
Review Procedure
Schedule 8
Third Parties
Part 1
Relevant Authorities
Part 2
Other Interested Parties
Part 3
Requirements of Relevant Authorities
Part 5
Network Rail Agreement
Part 2
Safety Performance Adjustment
Annex 1
Safety Performance Boundary of the Project Road
Annex 2
Comparator Roads
Part 3
Construction Payments
Part 4
Indexation
Part 5
Drawings
Schedule 11 Force Majeure
Schedule 12 Change
Part 1
Eligible Changes
Annex 1
Department's Change
Annex 2
Additional Works
Annex 3
Compensation Events
Annex 4
User Paid Tolls
Annex 5
Classified Information
Part 2
General Change Procedure
Annex 1
Relevant Change Notice
Annex 2
Determination of Change Amounts
Annex 3
Determination of Eligible Capital Costs
Annex 4
Financing of Eligible Changes
Annex 5
Determination of Change Figure
Annex 6
Determination of Revised Value
Annex 7
Mitigation
Part 3
Change Definitions
Schedule 13 Additional Works and Subsequent Schemes
Part 1
Procedure for Additional Works
Annex 1
Form of Additional Works Completion Certificate
Part 2
Payment for Additional Works Services
Part 3
Subsequent Schemes
Annex 1
Pre-cleared Subsequent Schemes
Annex 2
Form of Subsequent Scheme Completion Certificate
Part 4
Improvements
Schedule 14 Records and Reports
Part 1
Records
Part 2
Reports
Part 3
DBFO Co's 5 Year Management Plan
Annex 1
Department's Objectives
Annex 2
Management Plan Checklist
Part 4
Initial DBFO Co's 5 Year Management Plan
Part 5
DBFO Co's 5 Year Environment Management Plan
Part 6
Initial DBFO Co's 5 Year Environmental Management Plan
Schedule 15 Disputes Resolution Procedure
Schedule 16 Liaison Procedures
Part 1
General Principles
Part 2
Operations, Emergencies and Traffic Management
Part 3
Publicity
Part 4
A249 Environmental Group
Part 5
Traffic Control Centre Company
Schedule 19 Statutory Undertakers
Part 1
Authorised Functions
Part 2
Services in Relation to the Secretary of State's Functions
Part 3
Other Services
Schedule 20 Contracted Out Functions of the Secretary of State
Schedule 21 Pre-Commencement Works
Part 1
Investigations and Surveys
Part 2
Other Preparatory Works
Part 3
Works by Relevant Authorities
Part 4
Pre-Commencement Activities
Schedule 22 Security of the Site
Schedule 23 The Network Board
Schedule 26 Appointments of TRACS Contractor and Traffic Signal
Maintenance Contractor
THIS DBFO CONTRACT (this ''Agreement'') is made the 19th February day of
2004
BETWEEN:
(1)
THE SECRETARY OF STATE FOR TRANSPORT of Great Minster House, 76
Marsham Street, London SW1P 4DR (the ''Secretary of State''); and
(2)
SHEPPEY ROUTE LIMITED, a company organised and existing under the laws of
England and Wales, registered under number 04918712 and having its registered office
at Birch Street, Wolverhampton, West Midlands WV1 4HY (the ''DBFO Co'').
WHEREAS:
(A)
The Government of the United Kingdom desires to have the private sector invest and
participate in the development of the nation's transport system.
(B)
In accordance with the foregoing policy, interested persons were invited to submit
proposals for investing in the Project.
(C)
The Project will comprise the design, financing, construction and thereafter operation
and maintenance of the A249 Iwade Bypass to Queenborough Improvement scheme,
comprising a new dual carriageway road 5km long between the northern end of the
existing Iwade Bypass and Brielle Way north of Queenborough Junction, including a
new high level crossing of The Swale and also the operation and maintenance of the
existing A249 between Junction 5 of the M2 and the docks entrance at the Port of
Sheerness (but excluding any De-Trunked Segments following their release from this
Agreement).
(D)
Proposals were submitted by the DBFO Co for the design and construction of the
Works, the financing, operation and maintenance of the Project Facilities and the
conduct of the other Operations during the Contract Period.
(E)
The agreements referred to in Clause 2.3.1 have been entered into on or prior to the
date hereof.
(F)
The Secretary of State and the DBFO Co have reached agreement as set out in this
Agreement.
(G)
The Secretary of State is satisfied that this Agreement would be of benefit to the
public.
(H)
This Agreement is being entered into by the Secretary of State under the Private
Finance Initiative and satisfies the conditions set out in Section 4(2) of the
Construction Contract (England and Wales) Exclusion Order 1998.
NOW IT IS HEREBY AGREED as follows
PART I
GENERAL
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement (including the recitals and Schedules), unless the context otherwise
requires, the following expressions have the following meanings:
"A249 Environmental Group" means the group of that name established in accordance
with Part 4 of Schedule 16 [A249 Environmental Group].
"Abnormal Load" means:
(a)
an abnormal indivisible load which does not comply with the restrictions as to
laden weight and dimensions set out in Part IV of the Road Vehicles
(Construction and Use) Regulations 1986 (S.I. 1986/1078); and
(b)
unusual vehicles, such as items of engineering plant or military vehicles, whose
design and function prevents compliance with the Road Vehicles (Construction
and Use) Regulations 1986 (S.I. 1986/1078).
"Acceptable Associated Company" means, in relation to any proposed change of
control pursuant to the bona fide enforcement of the Holdco Security Agreement
following an Event of Default, any Associated Company of the DBFO Co which:
(a)
was not responsible (whether by reason of any act or omission of, or any event
or circumstance occurring in relation to, such Associated Company) for any
Event of Default under the DBFO Contract which resulted in such enforcement
of the Holdco Security Agreement; and
(b)
was not an Associated Company of any person who was responsible (whether
by reason of any act or omission of, or any event or circumstance occurring in
relation to, such Associated Company) for any Event of Default under the
DBFO Contract which resulted in such enforcement of the Holdco Security
Agreement.
"Accounts Agreement" means the accounts agreement dated on or about the date hereof
between (1) the DBFO Co, (2) the Security Trustee, (3) the Senior Facility Agent and
(4) the Mezzanine Facility Agent (as each such party, where the same is not defined in
this Agreement, is defined therein).
"Accounts Mandate" means the accounts mandate dated on or about the date of this
Agreement between the DBFO Co, the Account Bank, the Facility Agents and the
Security Trustee (as each such party, where the same is not defined in this Agreement,
is defined in the Credit Agreement).
''Additional Works'' means any change, improvement or addition to the design, layout
or structure of the Project Facilities made or proposed to be made on or after the
following dates:
(a)
for the Existing Road (other than any Upgraded Section) at any time after
the date of this Agreement; and
(b)
for the New Road (including, without limitation, any Upgraded Section)
and Off-Site Facilities, at any time after the issue of the Completion
Certificate.
but in each case excluding any Subsequent Scheme and any Improvement.
"Additional Works Completion Certificate" has the meaning given in paragraph 6 of
Part 1 of Schedule 13 [Procedure for Additional Works].
''Additional Works Contract'' has the meaning given in paragraph 3.1.4 of Part 1 of
Schedule 13 [Procedure for Additional Works].
''Additional Works Contractor'' has the meaning given in paragraph 3.1.4 of Part 1 of
Schedule 13 [Procedure for Additional Works].
''Additional Works Notice'' has the meaning given in paragraph 1.1 of Part 1 of
Schedule 13 [Procedure for Additional Works].
''Additional Works Services'' has the meaning given in paragraph 3.1 of Part 1 of
Schedule 13 [Procedure for Additional Works].
''Adjacent Areas'' means, subject to Clause 8.8 [Boundaries of Site and Adjacent
Areas], areas, which do not form part of the Site but upon which part of the Operations
are to be carried out, as shown or identified as such on the date hereof on drawings
numbered A249/03/02-001 to 004 (inclusive) set out in Part 7 of Schedule 3
[Drawings], or as the Secretary of State may from time to time specify, provided that
each part of the Temporary Adjacent Areas shall cease to be part of the Adjacent
Areas from the date upon which a Taking Over Certificate is issued in respect of Local
Facilities located on such part.
''Affected Contract Year'' means each Contract Year in respect of which there is a
Change in Costs or a Change in Revenue as a consequence of an Eligible Change.
''Alternative Proposal'' has the meaning given in paragraph 1 of Section B of Part 3 of
Schedule 4 [Design and Certification Procedure].
''Annual Performance Report'' has the meaning given in paragraph 3.2 of Part 2 of
Schedule 14 [Reports].
''Annual Performance Targets'' has the meaning given in paragraph 2.5 of Part 3 of
Schedule 14 [DBFO Co's 5 Year Management Plan].
''Annual Report'' has the meaning given in paragraph 3.1 of Part 2 of Schedule 14
[Reports].
"Applicable Date" means:
(a)
with respect to any activity requiring a submission to be made in
accordance with the Review Procedure, the date of such submission; or
(b)
with respect to any activity not requiring a submission to be made in
accordance with the Review Procedure, the date of commencing such
activity.
"Approval" has the meaning given in Clause 47.2 [Reasonableness].
"Approved Rescheduling" means any rescheduling of amounts outstanding under the
Facilities (as defined in the Credit Agreement) which has been submitted to the Review
Procedure pursuant to Clause 2.3.2 and in respect of which:
(a)
there has been no objection under the Review Procedure; and
(b)
the DBFO Co has complied with its obligations under paragraphs 2.2, 2.5,
2.6 and 2.7 of Schedule 25 [Refinancing] to the extent applicable.
"Archaeological Remains" has the meaning given in paragraph 1 of Annex 10/E to Part
2 of Schedule 4 [Construction Requirements].
''Archaeological Works'' has the meaning given in paragraph 1 of Annex 10/E to Part 2
of Schedule 4 [Construction Requirements].
''Archaeologist'' means John Samuels Archaeologist Consultants of The Manor, South
Street, Nomanton-on-Trent, Nr Newark, Nottinghamshire NG23 6RQ acting through
its Principal, Dan Slatcher, or such substitute (acting through its Principal who shall be
a member of the Institute of Field Archaeologists or its equivalent with a minimum of
10 years' relevant post qualification experience) as may be appointed by the DBFO Co
for the time being in accordance with Clause 45.4.1 or 45.4.2 [Sub-Contracting].
"Area Manager" means Mark Kumar or such substitute as may be appointed by the
Secretary of State for the time being and notified to the DBFO Co in writing.
"Area Network Board" means, in respect of a part of the motorway and trunk road
network, the strategic partnering board established and maintained by (inter alios) the
Secretary of State and the contractor responsible for the maintenance of such part of
the network.
''Associated Company'' means, in respect of a relevant company, a company which is a
Subsidiary, a Holding Company or a company which is a Subsidiary of a Holding
Company of that relevant company and, in the case of the DBFO Co, shall include
each of Holdco, the Sponsor, the Contractor, the Operator and any company which is a
Subsidiary, a Holding Company or a company which is a Subsidiary of a Holding
Company of Holdco, the Sponsor, the Contractor or the Operator.
''Audit Team'' has the meaning given in paragraph 2.1 of Section A of Part 3 of
Schedule 4 [Design and Certification Procedure].
"Authorised Junior Security" means the security agreement dated on or about the date
hereof between (1) the DBFO Co and (2) Holdco;
"Available Funding" means, at any time, the maximum amount available (including
without limitation any amount which is or would be available subject to the giving of
notice, the lapse of time or the satisfaction or waiver of any other condition, or any
combination of these matters) to be borrowed under the Funding Agreements at or after
such time.
"Availability Criteria" means the criteria in paragraphs 1.2.1 and 1.2.2 of Annex 3 to
Part 1 of Schedule 9 [Congestion Management Payments].
"Average Spot Speed" means the average speed of all vehicles in a traffic lane
measured as they pass over a specified location measured over a Payment Period.
"Base Annual Gross Congestion Management Payment" means the sum so described in
paragraph 2.1 of Part 1 of Schedule 9 [Congestion Management Payments].
''Base Case'' means the output from the Financial Model on the date of execution of
this Agreement, as set out in Part 3 of Schedule 1 [Base Case].
''Carriageway Section'' means each of the unidirectional sections of the Project Road,
the limits of which are described in Annex 1 to Part 1 of Schedule 9 [Congestion
Management Payments].
''Certificate'' means any certificate to be issued pursuant to this Agreement and in
particular:
(a)
''Alternative Proposal Certificate'' means a certificate in the form set out in
Annex 1(11) to Part 3 of Schedule 4 [Design and Certification Procedure];
(b)
''Archaeology Certificate'' means a certificate in the form set out in
Annexes 1(21) and 1(22) to Part 3 of Schedule 4 [Design and Certification
Procedure];
(c)
''Assessment Certificate (Structures)'' means a certificate in the form set
out in Annex 1 (19) to Part 3 of Schedule 4 [Design and Certification
Procedure];
(d)
''Assessment Check Certificates (Structures) means a certificate in the
form set out Annex 1(20) to Part 3 of Schedule 4 [Design and
Certification Procedure];
(e)
''Check Certificate (Structures/Strengthened Earthworks)'' means a
certificate in the form set out in Annex 1(4) to Part 3 of Schedule 4
[Design and Certification Procedure];
(f)
''Commencement Certificate'' means the certificate to be issued by or on
behalf of the Secretary of State pursuant to Clause 7.3 [Commencement
Certificate] in the form set out in Annex 1(18) to Part 3 of Schedule 4
[Design and Certification Procedure];
(g)
''Compensation Party Surveyor's Certificate'' means a certificate in the
form set out in Annex 1 to Part 1 of Schedule 24 [CPA Works for
Compensation Parties];
(h)
''Completion Certificate'' means a certificate in the form set out in Annex
1(15) to Part 3 of Schedule 4 [Design and Certification Procedure];
(i)
''Construction Certificate'' means a certificate in the form set out in Annex
1(12) to Part 3 of Schedule 4 [Design and Certification Procedure];
(j)
''DBFO Co's Change Certificate'' means a certificate in the form set out in
Annex 1(9) to Part 3 of Schedule 4 [Design and Certification Procedure];
(k)
''DBFO Co's Substantial Completion Certificate'' means a certificate in the
form set out in Annex 1(13) to Part 3 of Schedule 4 [Design and
Certification Procedure];
(l)
''Department's Change Certificate'' means a certificate in the form set out
in Annex 1(10) to Part 3 of Schedule 4 [Design and Certification
Procedure];
(m)
''Design Certificate (General)'' means a certificate in the form set out in
Annex 1(1) to Part 3 of Schedule 4 [Design and Certification Procedure];
(n)
''Design Certificate (Geotechnical)'' means a certificate in the form set out
in Annex 1(2) to Part 3 of Schedule 4 [Design and Certification
Procedure];
(o)
''Design Certificate (Structures)'' means a certificate in the form set out in
Annex 1(3) to Part 3 of Schedule 4 [Design and Certification Procedure];
(p)
''Ecology Certificate'' means a certificate in the form set out in Annexes
1(25), 1(26) and 1(27) to Part 3 of Schedule 4 [Design and Certification
Procedure];
(q)
''Handback Certificate'' means a certificate in the form set out in Annex
1(17) to Part 3 of Schedule 4 [Design and Certification Procedure];
(r)
"Injurious Affection Party Surveyor's Certificate" means a certificate set out in
Annex 1 to Part 2 of Schedule 24 [Land Acquisition and Claims for
Injurious Affection].
(s)
''Landscaping Certificate'' means a certificate in the form set out in
Annexes 1(23) and 1(24) to Part 3 of Schedule 4 [Design and Certification
Procedure];
(t)
''Road Safety Audit Certificate (Stage 1, Stage 2, Stage 3 or Stage 4)''
means a certificate in the form set out in Annex 1(8) to Part 3 of Schedule
4 [Design and Certification Procedure];
(u)
''Taking Over Certificate'' means a certificate in the form set out in
Annex 1(16) to Part 3 of Schedule 4 [Design and Certification Procedure];
(v)
''Temporary Works Check Certificate'' means a certificate in the form
set out in Annex 1(5) to Part 3 of Schedule 4 [Design and Certification
Procedure];
(w)
''Test Confirmation Certificate'' means a certificate in the form set out
in Annex 1(6) to Part 3 of Schedule 4 [Design and Certification
Procedure];
(x)
''Traffic Management Certificate'' means a certificate in the form set
out in Annex 1(7) to Part 3 of Schedule 4 [Design and Certification
Procedure].
''Change Figure'' has the meaning given in Annex 5 to of Part 2 of Schedule 12
[General Change Procedure].
''Change in Capital Costs'' has the meaning given in Part 3 of Schedule 12. [Change
Definitions].
''Change in Costs'' means any net increase or decrease in the DBFO Co's costs of
performing the Operations in respect of a Contract Year as a consequence of an
Eligible Change the subject of a Relevant Change Notice. For the avoidance of doubt,
this includes any Change in Capital Costs but does not include any Change in
Revenue. The Change in Costs (other than any Change in Capital Costs) shall be
calculated on the assumption that all costs in respect of a Contract Year are incurred
on the day which is the mid point of such Contract Year. For the avoidance of doubt,
any increase in costs shall be a positive figure and any decrease in costs shall be a
negative figure.
''Change in Law'' means the coming into effect of:
(a)
any Legislation enacted after the date of execution of this Agreement; or
(b)
any modification of any Legislation existing on the date of this Agreement
(where such modification comes into effect after the date of execution of
this Agreement),
(but excluding in either such case any lawful requirements of any Relevant Authority
and any change in the interpretation of any Legislation and also excluding any change
in law resulting from the making of any New Orders) which is binding on the DBFO
Co.
''Change in PIA'' means any net increase or decrease in the number of Personal Injury
Accidents occurring on the Project Road, as a consequence of an Eligible Change the
subject of a Relevant Change Notice, in the period of 365 days from (and including)
the date which, in accordance with paragraph 2 of Part 2 of Schedule 12 [General
Change Procedure] is agreed or determined as being, in respect of such Eligible
Change, the PIA Change Effective Date in respect of the Project Road. Any net
increase in the number of Personal Injury Accidents shall be a positive figure and any
net decrease in the number of Personal Injury Accidents shall be a negative figure.
''Change in Revenue'' means any net increase or decrease in the Monthly Construction
Payments or Congestion Management Payments receivable by the DBFO Co in respect
of a Contract Year (as the case may be) as a consequence of an Eligible Change the
subject of a Relevant Change Notice. The Change in Revenue shall be calculated on
the assumptions that all Monthly Construction Payments or Congestion Management
Payments (as the case may be) in respect of a Contract Year are receivable on the day
which is the mid-point of such Contract Year. Any net decrease in revenue shall be a
positive figure and any net increase shall be a negative figure.
"Change in the Scope of Value Added Tax" means any Change in Law whereby the
whole or any part of the supplies to be made by the DBFO Co to the Secretary of State
under this Agreement are exempt from value added tax such that the input tax incurred
and attributable to such supplies ceases to be recoverable by the DBFO Co.
''CHART Section'' means a length of road between adjacent nodes each of which has a
unique CHART reference determined by the CHART referencing system set out in
Volume 1 of the Highways Maintenance Code of TRMM.
''Checker'' means Gifford Consulting Engineers of Carlton House, Ringwood,
Woodlands, Southampton SO40 7HT acting through its Principal, Edmund
Hollinghurst, who shall check a Category III Structure (as defined in paragraph 35 of
Section A of Part 3 of Schedule 4 [Design and Certification Procedure]) or such
substitute (acting through its Principal who shall be a chartered civil or structural
engineer or the equivalent) as may be appointed by the DBFO Co for the time being in
accordance with Clause 45.4.1 or 45.4.2 [Sub-Contracting].
''Checking Team'' has the meaning given in paragraph 2.3 of Section A of Part 3 of
Schedule 4 [Design and Certification Procedure].
''Claim'' means any claim, demand, proceedings or liability.
"Classified Information" means any information which the Secretary of State
designates as such pursuant to Clause 50.7.1.
"Classified Information Notice" means a notice given by the Secretary of State to the
DBFO Co directing the DBFO Co to treat or cease to treat any specified information
as Classified Information or imposing, withdrawing or modifying a requirement that
the DBFO Co complies with any Classified Information Guidelines.
''Commencement Date'' means the date specified as such in the Commencement
Certificate.
''Communications Requirements'' means the requirements set out or identified or
referred to in Part 2 of Schedule 17 [Monitoring System Requirements], as amended or
supplemented from time to time by any DBFO Co's Change, Alternative Proposal or
Department's Change or in accordance with Clause 14.2 [O&M Requirements].
"Company Security Agreement" means the security agreement dated on or about the
date hereof between (1) the DBFO Co and (2) the Security Trustee;
"Comparator Roads" means the roads identified as such in Annex 2 to Part 2 of
Schedule 9.
''Compensation Event'' means any of the following:
(a)
an event within Clause 26.5.3;
(b)
a failure by the Secretary of State to issue the Commencement Certificate on or
before the date for issue determined in accordance with Clause 7.3.1 (but only
if and so long as such failure does not constitute a DBFO Co Termination
Event);
(c)
a material breach by the Secretary of State of the provisions of Clause 8.1
[Access for DBFO Co] (but only if and so long as such breach does not
constitute a DBFO Co Termination Event);
(d)
failure by the Department's Nominee to issue a Permit to Use, Completion
Certificate or Taking Over Certificate when required to do so in accordance
with Clause 13.1 [Permit to Use], 13.2 [Completion Certificate] or 13.3 [Local
Facilities and De-Trunked Segments] respectively;
(e)
the occurrence of a Relevant Change in Law (but only if such Relevant Change
in Law does not give rise to a right for either Party to terminate this Agreement
in accordance with Clause 42.3.1); and
(f)
the exercise of any Rights in respect of land affecting the Site or any Adjacent
Area provided that:
(i)
such rights were not in existence at the date hereof and were not
reasonably discoverable from:
(A) the Disclosed Data; or
(B) inspection of the Site or any Adjacent Area; or
(C) the making of such enquiries or searches as can be made of the
relevant local authorities and other competent bodies; or
(D) any other information that would be revealed by such enquiries as
it would be reasonable to expect a DBFO Co to make; or
(ii) such rights (whether coming into existence before or after the date of this
Agreement) are not or (if already in existence at the date hereof) were
not when they came into existence:
(A) necessary for the purpose of implementing the Project or the
carrying out of the Operations or
(B) required to be granted by virtue of any of the Orders.
(g)
the taking of any action by Network Rail pursuant to clauses 2.8.1.5, 2.12, 3.7
and/or 3.9 of the Network Rail Agreement unless such action:
(i)
is taken as a consequence of the performance or non-performance by
the DBFO Co of any of its obligations under this Agreement and then
only to the extent that such action is reasonable and proportionate
having regard to all the circumstances at the time such action is taken;
or
(ii)
could have been taken or required pursuant to any statutory authority;
or
(iii)
could have been taken or required by the Secretary of State without
breaching the terms of this Agreement (but without prejudice to any
other rights that the DBFO Co may have as a result of any other
Eligible Change that thereby arises by virtue of some other term of this
Agreement); or
(iv)
in the case of clause 2.12 could reasonably have been avoided by the
design or manner of construction of the Bridge (as defined in the
Network Rail Agreement) having regard to the matters that the DBFO
Co should have reasonably foreseen in the course of performing such
design or construction;
(h)
the exercise by Network Rail of its right to suspend performance of its
obligations under the Network Rail Agreement pursuant to clause 4.4.1 of the
Network Rail Agreement unless such action:
(i)
is taken as a consequence of the performance or non-performance by
the DBFO Co of any of its obligations under this Agreement and then
only to the extent that such action is reasonable and proportionate
having regard to all the circumstances at the time such action is taken;
or
(ii)
could have been taken or required pursuant to any statutory authority;
or
(iii)
could have been required by the Secretary of State without breaching
the terms of this Agreement (but without prejudice to any other rights
that the DBFO Co may have as a result of any other Eligible Change
that thereby arises by virtue of some other term of this Agreement);
(i)
an event within Clause 30.9.12.
"Compensation Party" means any person entitled to Land Compensation Costs whose
land, or whose Rights in respect of land (or any part thereof), is acquired or taken in
connection with the Project.
"Compensation Party Accommodation Works" or "CPA Works" means the Specified
CPA Works and the Unspecified CPA Works.
"Compensation Party Accommodation (CPA) Works Schedule" or "CPA Works
Schedule" means a schedule submitted by the DBFO Co to the Secretary of State
pursuant to paragraph 1.9 of Part 1 of Schedule 24 [CPA Works for Compensation
Parties] in the form set out in Annex 2 to Part 1 of Schedule 24 [CPA Works for
Compensation Parties].
"Condition Criteria" has the meaning given in paragraph 1 of Annex 2 to Part 1 of
Schedule 9 [Congestion Management Payments].
''Confidential Information'' has the meaning given in Clause 50.1 [Confidential
Information].
''Confidential Schedules'' means those Schedules or parts thereof which are stated
therein to be confidential.
"Congestion Management Payment" means the amount determined in accordance with
Part 1 of Schedule 9 [Congestion Management Payments] in respect of a Contract
Year.
''Connecting Roads'' means the lengths of trunk road or motorway described in Part 3
of Schedule 3 [Connecting Roads] which provide access to the Project Road and for
which the Secretary of State is the highway authority.
''Construction Contract'' means the contract so titled of even date herewith between the
DBFO Co and the Contractor in respect of, inter alia, the design and construction of
the Works.
''Construction Plant'' means plant, materials and equipment used or to be used by the
DBFO Co or its sub-contractors of any tier in the construction of the Project Facilities
but does not include Plant.
''Construction Requirements'' means the standards, specifications, procedures and other
requirements for design and construction set out or identified or referred to in Part 2 of
Schedule 4 [Construction Requirements], as amended or supplemented from time to
time by any DBFO Co's Change, Alternative Proposal or Department's Change.
"Construction Review Period" has the meaning given in paragraph (a) of the definition
of "Insurance Review Period".
''Contracting Associate'' means the Designer, Contractor, Operator and any other
Associated Company of the DBFO Co which performs any function in connection with
this Agreement or the Operations or is a party to any Project Document.
''Contract Period'' means the period commencing on the Commencement Date and
expiring 30 years therefrom (subject to the provisions of Clauses 37.4.1 and 37.4.3) or
on such other date as shall be the Termination Date.
''Contract Year'' means a period of twelve months starting on 1st April, with the
exception of the first Contract Year, which shall commence on the Commencement
Date and end on the 31st March first occurring thereafter (the ''First Contract Year''),
and the last Contract Year, which shall commence on 1st April and end on the
Termination Date (the ''Last Contract Year'').
''Contractor'' means Carillion Construction Limited of Birch Street, Wolverhampton,
West Midlands WV1 4HY or such substitute as may be appointed by the DBFO Co for
the time being in accordance with Clause 45.4.1. or 45.4.2.
''Contractor's Quality Documentation'' has the meaning given in Clause 23.2.1.2.
''Core Communications Requirements'' means the requirements set out or identified or
referred to in Clause 3.7 [Core Communications Requirements] including, without
limitation, the Scheme Specific Core Monitoring System Requirements.
''Core Construction Requirements'' means the requirements set out or identified or
referred to in Clause 3.5 [Core Construction Requirements] including, without
limitation, the Scheme Specific Core Construction Requirements.
''Core O&M Requirements'' means the requirements set out or identified or referred to
in Clause 3.6 [Core O&M Requirements] including, without limitation, the Scheme
Specific Core O&M Requirements.
"Counting Equipment" has the meaning given in Clause 31.2.3.1.
"Counting Measurement Point" means any point designated as such in Clause 31.2.1.
''Court'' means any court of competent jurisdiction.
"Credit Agreement" means the credit agreement dated on or about the date hereof
between (1) the DBFO Co, (2) Holdco, (3) the Arranger, (4) the Original Senior
Lenders, (5) the Original Mezzanine Lender, (6) the Original Equity Bridge Lender[s],
(7) the Issuing Bank, (8) the Senior Facility Agent, (9) the Mezzanine Facility Agent
and (10) the Security Trustee (as each such party, where the same is not defined in this
Agreement, is defined therein).
''Custody Agreement'' means the agreement for custody of the Financial Model and
DVD Rom dated on or before the date hereof between the DBFO Co, the Secretary of
State and the NCC Escrow International Limited.
"Data Validation" means, a process of monitoring Traffic Data and other relevant data
to identify variations in such data that indicate anomalous operation of the Monitoring
System.
"DBFO Co Loan Note Instrument" means the instrument issued by the DBFO Co of
even date herewith authorising the issue of unsecured loan notes due 30 September
2033 of varying denominations and not exceeding £5,955,425.00 in the aggregate
principal amount.
''DBFO Co Quality Director'' means the person employed by the DBFO Co and
appointed in accordance with Clause 23.8 [DBFO Co Quality Director].
''DBFO Co Termination Event'' means any of the events set out in Clause 41.1 [DBFO
Co Termination Events].
"DBFO Co's 5 Year Environmental Management Plan" has the meaning given in
paragraph 1.1 of Part 5 of Schedule 14 [DBFO Co's 5 Year Environmental
Management Plan].
"DBFO Co's 5 Year Environmental Performance Indicators" has the meaning given in
paragraph 2.1 of Part 5 of Schedule 14 [DBFO Co's 5 Year Environmental
Management Plan].
"DBFO Co's 5 Year Environmental Performance Targets" has the meaning given in
paragraph 2.3 of Part 5 of Schedule 14 [DBFO Co's 5 Year Environmental
Management Plan].
''DBFO Co's 5 Year Management Plan'' has the meaning given in paragraph 1.1 of Part
3 of Schedule 14 [DBFO Co's 5 Year Management Plan].
"DBFO Co's 5 Year Performance Indicators" has the meaning given in paragraph 2.1
of Part 3 of Schedule 14 [DBFO Co's 5 Year Management Plan].
''DBFO Co's 5 Year Performance Targets'' has the meaning given in paragraph 2.4 of
Part 3 of Schedule 14 [DBFO Co's 5 Year Management Plan].
''DBFO Co's Change'' means a variation in the design, quality or quantity of the Works
initiated by the DBFO Co in accordance with Clause 11.4 [DBFO Co's Changes] and
may include additions, omissions, substitutions, alterations in design and/or variations
in or to the Construction Requirements or the Communications Requirements.
''DBFO Co's Programme'' means the programme for the design and construction of the
Works appearing in Part 1 of Schedule 2 [Programme] (as amended from time to time
in accordance with this Agreement).
''DBFO Co's Quality Documentation'' has the meaning given in Clause 23.2.1.1.
''DBFO Co's Representative'' means the person appointed by the DBFO Co pursuant to
Clause 22.2 [DBFO Co's Representative] or such substitute as may be appointed by
the DBFO Co for the time being pursuant to Clause 22.3 [Change of Representatives].
''DBFO Co's Works Programme'' means a detailed programme of design,
investigations, construction and related works, based upon the DBFO Co's Programme,
to be submitted by the DBFO Co in accordance with Clause 12.3.1 or any amended or
varied version thereof submitted by the DBFO Co in accordance with Clause 12.3.2.2
and in respect of which there has been no objection under the Review Procedure.
''DBFO Payment'' has the meaning given in Clause 32.1.1.
"Deemed Capacity" means in relation to a Link of a Carriageway Section, the number
of PCUs per hour identified in Annex 1 to Part 1 of Schedule 9 [Congestion
Management Payments] for that Carriageway Section.
''Deemed Department's Change'' means any Change in Law which requires:
(a)
a variation in the design, quality or quantity of the Works; or
(b)
a variation in the design, quality or quantity of the Operations (other than as
referred to in paragraph (a) above),
which, if it were instructed as such, would constitute a Department's Change and may
in either such case include additions, omissions, substitutions, alterations in design
and/or variations in or to the Technical Requirements.
''Deemed Department's Change Notice'' has the meaning given in Clause 35.2.1.
"Defective Date" means the date on which the relevant item of Measuring Equipment
became defective or (where that time cannot be established) the date which is the mid-
point between the last Verification which indicated that the equipment was operating
within the Measurement Limits of Accuracy and the Verification which indicated that
it was not so operating.
''Defective Work'' means any defective or negligent work by any Third Party
Contractor prior to the date of this Agreement giving rise to a Latent Defect.
''Delay Period'' has the meaning given in Clause 12.6.6.
''Department'' or "DfT" or ''DOT'' or ''DTp'' or ''MOT'' or "DETR" or "DTLR" means
the Department for Transport or, as the case may be any predecessor or successor
government department.
''Department's Change'' means:
(a)
a variation in the design, quality or quantity of the Works; or
(b)
a variation in the design, quality or quantity of the Operations (other than as
referred to in paragraph (a) above),
initiated by the Department's Nominee in accordance with Annex 1 to Part 1 of
Schedule 12 [Department's Change] and may in either such case include additions,
omissions, substitutions, alterations in design and/or variations in or to the Technical
Requirements.
''Department's Nominee means Peter Evans or such substitute or substitutes as may be
appointed by the Secretary of State for the time being pursuant to Clause 22.3 [Change
of Representatives].
''Department's Standards'' means all standards and specifications issued by the
Secretary of State from time to time in respect of the design, construction, operation
and maintenance of highways, including, without limitation, the following:
(a)
the Design Manual for Roads and Bridges including all Department Technical
Advice Notes and Technical Design Notes;
(b)
the Specification for Highway Works;
(c)
the Notes for Guidance;
(d)
the Highway Construction Details;
(e)
Circular Roads;
(f)
the Trunk Road Maintenance Manual;
(g)
Interim Advice Notes;
(h)
the Routine Maintenance Management Systems Manual;
(i)
the Highway Inspection Survey Site Inspectors Manual;
(j)
the Traffic Signs Manual;
(k)
the Signs Working Drawings;
(l)
Area Management Memos;
(m)
Chief Highway Engineer Memoranda; and
(n)
Internal Advice Notes.
''Departure from Standard'' means one of, or a combination of, the following:
(a)
the use of technical design directives other than those in the DMRB;
(b)
the use of technical specifications for materials or workmanship other than
those in the SHW and HCD;
(c)
the use of a set of requirements (or additional criteria) for any aspect of the
Works for which requirements are not given in the Department's Standards in
force at the date of execution of this Agreement; and
(d)
the use of a technical design directive or technical specification in a manner or
circumstance which is not permitted or provided for in such directive or
specification,
in any such case approved by the Secretary of State on or prior to the date of execution
of this Agreement, and any relaxation in any of the Department's Standards in force at
the date of execution of this Agreement not requiring approval by the Secretary of
State in accordance with the DMRB.
''Design and Certification Procedure'' means the procedure set out in Part 3 of Schedule
4 [Design and Certification Procedure].
''Design Contract'' means the contract so titled of even date herewith between the
Contractor and the Designer in respect of, inter alia, the design and examination of the
Works and, if applicable from time to time, any Subsequent Design Contract.
''Design Data'' means all calculations, designs, design or construction information,
standards, specifications, plans, drawings, (including, without limitation, fabrication
drawings), graphs, sketches, models and other materials, including all eye readable or
computer or other machine readable data, used, prepared or to be prepared by or on
behalf of the DBFO Co (and/or any of the DBFO Co's agents, employees, contractors
or sub-contractors of any tier) or the Secretary of State relating to the design or
construction of the Works or any DBFO Co's Change, Alternative Proposal,
Department's Change or Improvement or the operation, maintenance or improvement
of the Project Facilities.
''Designer'' means Symonds Group Limited of 24-30 Holborn, London EC1N 2LX
acting through its Principal, Martin Beckett, or such substitute (acting through its
Principal who shall be a chartered civil or structural engineer or equivalent) as may be
appointed by the Contractor for the time being in accordance with Clause 45.4.1 or
45.4.2 [Sub-Contracting].
''Designer's Quality Documentation'' has the meaning given in Clause 23.2.1.3.
''Design Manual for Roads and Bridges'' or ''DMRB'' means the Design Manual for
Roads and Bridges, published by The Stationery Office.
''Design Team'' has the meaning given in paragraph 2.4 of Section A of Part 3 of
Schedule 4 [Design and Certification Procedure].
''Detailed Design'' means the detailed design to be developed (from the preliminary
design, if any, shown in the Construction Requirements and the Communications
Requirements) in respect of each part of the Permanent Works so as to allow
construction of that part in accordance with the Construction Requirements and the
Communications Requirements and so as to procure satisfaction of the Core
Construction Requirements and the Core Communications Requirements.
''De-Trunked Segment'' means any segment of the Existing Road described as such in
Part 1 of Schedule 3 [Existing Road] and shown on drawing numbered A249/03/01-
011 set out in Part 7 of Schedule 3 [Drawings] which is or is to be de-trunked in
accordance with an order made pursuant to Section 10(2)(b) of the Highways Act.
''DfT Transport Statistics Division'' means the Road and Traffic Directorate of the
Department or any other subsequent or replacement body responsible for the collection
and production of national statistics for traffic and road safety.
''Direct Agreement'' means the agreement entered into or to be entered into between the
Secretary of State, the Royal Bank of Scotland plc (for itself and as agent for and on
behalf of the Credit Providers (as defined therein)) and the DBFO Co in the form set
out in Part 4 of Schedule 1 [Form of Direct Agreement].
''Disclosed Data'' has the meaning given in Clause 38.2.1.
''Dispute'' means a difference or dispute of whatever nature between the Secretary of
State (and/or the Department's Nominee) of the one part and the DBFO Co (and/or the
DBFO Co's Representative) of the other part arising under, out of or in connection
with this Agreement (including without limitation any question of interpretation of this
Agreement).
''Disputes Resolution Procedure'' means the procedure referred to in Clause 52
[Disputes Resolution Procedure] and set out in Schedule 15 [Disputes Resolution
Procedure].
"Distributions" has the meaning given to such term in Schedule 25.
"Distributions Cap Amount" means:
(a)
where all or any part of an Eligible Rescue Refinancing Amount is outstanding
as at the Termination Date, the aggregate amount of all Eligible Rescue
Refinancing Amounts; or
(b)
where:
(i) no Eligible Rescue Refinancing Amount is outstanding as at the
Termination Date; and
(ii) any amounts outstanding under the Funding Agreements were rescheduled
as part of an Unapproved Rescue Refinancing,
an amount equal to the Original Senior Debt Differential as at the Termination
Date; or
(c)
where:
(i) no Eligible Rescue Refinancing Amount is outstanding as at the
Termination Date; and
(ii) the circumstances referred to in paragraph (b)(ii) above do not apply,
an amount equal to zero.
''Diversionary Measures'' means the use of signs or other measures to require or to seek
to encourage the use of any alternative route away from the Project Road.
''DVD Rom'' means the computer disk in DVD-R format containing material,
documents and data relating to the Project which has been made available to the DBFO
Co and which is to be lodged with NCC Escrow International Limited on the terms set
out in the Custody Agreement.
''Earthworks'' has the meaning given to it in British Standard 6100.
''Ecologist'' means Symonds Group Limited of 24-30 Holborn, London EC1N 2LX
acting through its Principal, Zofia Kubica, or such substitute (acting through its
Principal who shall be a full member of the Institute of Ecology and Environmental
Management or a full member of the Landscape Institute (Science Division) or their
equivalent with a minimum of 10 years' relevant post qualification experience) as may
be appointed by the DBFO Co for the time being in accordance with Clause 45.4.1. or
45.4.2 [Sub-Contracting].
''Eligible Change'' means any of the following:
(a)
a Department's Change;
(b)
any Additional Works which result in any change in the costs of or revenues to
the DBFO Co in the conduct of the Operations;
(c)
any Compensation Event;
(d)
the imposition or removal of User Paid Tolls or any change in User Paid Tolls;
and
(e)
a change resulting from the implementation of the requirements of a Classified
Information Notice or from the withdrawal or modification by the Secretary of
State of the requirements of a Classified Information Notice, which, in each
case:
(i) occurs after the date of this Agreement; and
(ii) increases or decreases the obligations to be observed and performed by
the DBFO Co in relation to the relevant Classified Information and/or
Classified Information Guidelines;
(f)
a change in the National Speed Limit on any part of the Project Road;
(g)
a change in the designation of or de-trunking of the Project Road resulting in a
change in the applicable National Speed Limit on any part of the Project Road;
(h)
the conducting of a trial or survey referred to in Clause 14.4.1.2.3;
(i)
the creation of any Rights in respect of land consequent upon the
implementation of any New Order necessary in connection with a Relevant
Change where such rights:
(i)
are created following, where the DBFO Co is the Proponent, the date on
which the Relevant Chance Notice is given or, otherwise, the date on
which the Change in Costs which has resulted or will result from the
Relevant Change is agreed or determined pursuant to paragraph 2.2 or
paragraph 4 (as applicable) of Annex 2 to Part 2 of Schedule 12
[Change]; and
(ii)
result in a change in the costs of the DBFO Co which would, if
such rights had been created prior to the date set out in (i), have been
taken into account in the calculation of the Change in Costs in respect of
the Relevant Change and were not actually taken into account in such
calculation.
''Eligible Force Majeure'' has the meaning given to it in paragraph 2 of
Schedule 11[Force Majeure].
"Eligible Rescue Refinancing" means any Rescue Refinancing as a result of which the
Available Funding is increased in aggregate by an amount not exceeding the Maximum
Rescue Refinancing Compensation Amount applicable on the date of such Rescue
Refinancing less an amount equal to the aggregate increases in Available Funding
arising from all Unapproved Rescue Refinancings occurring prior to such Rescue
Refinancing.
"Eligible Rescue Refinancing Amount" means, in respect of any Eligible Rescue
Refinancing, the amount by which the Available Funding is increased as a result of
such Eligible Rescue Refinancing and Eligible Rescue Refinancing Amounts shall be
construed accordingly.
''Emergency Diversionary Measures'' means the use of signs or other measures to
require Users to use an alternative route away from the Project Road as a result of an
emergency.
''Encumbrance'' means any Rights in respect of land or any mortgage, charge, pledge,
lien, assignment, option, right to acquire, right of pre-emption, security interest, trust
arrangement, and any other equity or preferential right or any agreement or
arrangement to create any of them.
"Environmental Management Systems" means the organisational structure, procedures,
processes and resources for determining and implementing environmental policy.
"Environmental Management System Documentation" means the manuals, plans,
procedures, work instructions or like documentation, as appropriate, which describe
and define an Environmental Management System.
''Environmental Manager'' means Cresswell Associates (Environmental Consultants)
Limited of 12B High Street, Wendover, Bucks, HP22 6EA acting through its
Principal, Dr Stephanie Wray, or such substitute (who shall be a full corporate
member of one of the Landscape Institute (Management Division), the Institute of
Ecology and Environmental Management or the Institute for Water and Environmental
Management or their equivalent and who shall act through its Principal who shall have
a minimum of 10 years relevant post qualification experience) as may be appointed by
the DBFO Co for the time being in accordance with Clause 45.4.1 or 45.4.2 [Sub-
Contracting].
''Environmental Statement'' means the environmental statements and reports referred to
in Annex 10/D to Part 2 of Schedule 4 [Construction and Handback Requirements].
"Environmental Team" has the meaning given to it in paragraph 7.1.4 of Section 7 of
Part 2 of Schedule 6 [O&M Requirements].
"Equity Bridge Guarantee" means (A) the guarantee of Carillion Private Finance
Limited's obligations under the Equity Subscription Agreement dated on or about the
date of the Credit Agreement between (1) the Equity Bridge Guarantor (as defined in
the Credit Agreement) at the date of the Credit Agreement, (2) the DBFO Co and (3)
the Security Trustee and (B) in respect of any Acceptable Transferee (as defined in the
Credit Agreement), any replacement form of credit support (in form and substance
satisfactory to the Global Facility Agent (as defined in the Credit Agreement), acting
on the instructions of the Equity Bridge Lenders (as defined in the Credit Agreement).
"Equity Subscription Agreement" means the equity subscription agreement dated on or
about the date hereof entered into by (1) Carillion Private Finance Limited, (2) Holdco,
(3) the DBFO Co, (4) the Security Trustee and (5) the Global Facility Agent.
''Event of Default'' means any of the events set out in Clause 40.1 [Events of Default].
"Excepted Off-Site Works" has the meaning given in Clause 13.2.9.
"Excepted Works" means all or any of:
(a)
the Excepted Off-Site Works;
(b)
(provided that, at all times prior to the date of issue of the Completion
Certificate, the DBFO Co shall have complied with its obligations under Part 6
of Schedule 4 and without prejudice to Clause 13.2.8.5) any Traffic Noise
Works which, in accordance with the provisions of Part 6 of Schedule 4
[Noise Insulation Requirements], fall to be completed after the date of issue of
the Completion Certificate;
(c)
(for the purposes of Clause 13.2.6.1 only) any works required to repair
damage arising as a result of either:
(i) an accident occurring after the issue of the Permit to Use; or
(ii) fair wear and tear
if, in each case such damage is required to be remedied by the DBFO Co
pursuant to the O&M Requirements but the O&M Requirements do not
require such damage to be remedied prior to the date that the Completion
Certificate would otherwise be issued.
''Existing Road'' means (subject to paragraph 6 of Part 1 of Schedule 13 [Procedure for
Additional Works], paragraph 7 of Part 3 of Schedule 13 [Subsequent Schemes] and
paragraph 3 of Part 4 of Schedule 13 [Improvements]) the lengths of trunk road or
motorway described in Part 1 of Schedule 3 [Existing Road] and shown on drawings
numbered A249/03/01-001 to 010 (inclusive) set out in Part 7 of Schedule 3
[Drawings] including without limitation:
(a)
all carriageways, hard shoulders, slip roads, side roads, access roads, bridges
and other highway structures whether over or under such road (but excluding
the bridges and other structures (if any) so specified in Part 1 of Schedule 3
[Existing Road] to the extent so specified); and
(b)
unless otherwise expressly provided, any Upgraded Sections,
together with all supporting infrastructure and amenity, including, without limitation,
all fences and barriers, drainage systems including outfalls and balancing ponds,
grassed areas, hedges and trees, planted areas, footways, cycleways, road markings,
road traffic signs, road traffic signals, road lighting, communications installations,
public toilets, picnic sites, lay-bys, embankments and cuttings, but excluding any parts
thereof which are excluded from this definition from time to time in accordance with
Clause 13.3.5.2.
"Existing Road Damage" has the meaning given in Clause 14.1.5
''Expert'' means any person appointed as such from time to time under and subject to
the provisions of Schedule 15 [Disputes Resolution Procedure].
''Expiry Date'' means the date which is 30 years from the Commencement Date (or the
date of expiry of such other period as may be substituted therefor in accordance with
Clauses 37.4.1 or 37.4.3).
''Financial Model'' means the financial model provided by the DBFO Co embodied in
its financial model software setting out the basis on which the financing of the Project
and/or the costs of and revenue from the Project have been calculated by the DBFO Co
(including without limitation the assumptions used, the cell logic network for the
financial model software and any accompanying documentation necessary to operate
the financial model), whether embodied on tape, disk or other electronic storage
medium.
''Financial Terms'' means the financial terms set out in the Funding Agreements.
''First Contract Year'' has the meaning given in the definition of ''Contract Year''.
"First Insurance Review Date" means the first Review Date to occur after the date of
issue of the Completion Certificate.
''Force Majeure'' means any of those events referred to in Schedule 11 [Force Majeure].
''Fossils and Antiquities'' means all fossils, articles of value or antiquity and structures
or other remains or things of particular geological, historical or archaeological interest
discovered on the Site or Adjacent Areas or in the course of carrying out the
Operations.
''Funders'' means all or any of the persons who provide financing or funding in respect
of the Project under the Funding Agreements.
''Funding Agreements'' means:
(a)
all or any of the agreements or instruments of even date herewith specified in
Clause 2.3.1.3, including any amendments or supplements thereto, and any
agreements or instruments (other than the DBFO Co Loan Note Instrument)
entered into by the DBFO Co to raise additional or substitute finance or
financial facilities of any form or relating to the rescheduling of its
indebtedness or the refinancing of the Project; and
(b)
all or any agreements or instruments entered into by the DBFO Co for the
purpose of facilitating the hedging of any exposure to interest rate fluctuations
under any of the agreements or instruments referred to in (a) above (other than
the DBFO Co Loan Note Instrument), including any amendments or
supplements thereto, and any agreements or instruments entered into by the
DBFO Co to effect additional or substitute interest rate hedging arrangements.
''General Change Procedure'' means the procedure set out in Part 2 of Schedule 12
[General Change Procedure].
''General Vesting Declaration'' means a declaration made by the Secretary of State
pursuant to Section 8 of the Compulsory Purchase (Vesting Declaration) Act 1981.
''Good Industry Practice'' means, at any time, the exercise of that degree of skill,
diligence, prudence and foresight which would reasonably and ordinarily be expected
at such time from a skilled and experienced operator seeking in good faith to comply
with its contractual obligations, complying with all applicable laws and engaged in the
same type of undertaking and under the same or similar circumstances and conditions.
''Government'' means the government of the United Kingdom.
"Government Policy Directive" means any Government or Department policy directive
or instruction published and issued to the Highways Agency (other than by way of a
Change in Law) which is required to be implemented on the motorway and/or trunk
road network generally.
''Handback Amount'' has the meaning given in Clause 19.6.7.
''Handback Inspection'' has the meaning given in Clause 19.6.1.
''Handback Requirements'' means the requirements set out or identified or referred to in
paragraph 1 of Part 4 of Schedule 4 [Handback Requirements] as amended from time
to time by any Department's Change.
"Health & Safety Management Systems" means the organisational structure,
procedures, processes and resources for determining and implementing health and
safety policy.
"Health & Safety Management System Documentation" means the manuals, plans,
procedures, work instructions or like documentation, as appropriate, which describe
and define a Health & Safety Management System.
''Hedging Agreements'' means any agreement referred to in paragraph (b) of the
definition of ''Funding Agreements'' including, without limitation, the Initial Hedging
Agreement.
''Hedging Termination Amounts'' means the net amount (if any) payable under the
Hedging Agreements on termination of the interest rate hedging transaction(s) entered
into under the Hedging Agreements.
''Highway Construction Details'' or ''HCD'' means the Highway Construction Details
published by The Stationery Office as Volume 3 of the Manual of Contract Documents
for Highway Works.
''Highways Act'' means the Highways Act 1980.
"Highways Inspection Survey Site Inspectors Manual" means the manual of instruction
and guidance for the inspection of highways published by the Department.
"Holdco" means Sheppey Route (Holdings) Limited a company organised and existing
under the laws of England and Wales, registered under number 04918710 and having
its registered office at Birch Street, Wolverhampton, West Midlands WV1 4HY.
"Holdco Loan Note Instrument" means the instrument issued by the Holdco dated on or
about the date hereof authorising the issue of unsecured loan notes due 30 September
2033 of varying denominations and not exceeding £5,955,425.00 in the aggregate
principal amount.
"Holdco Security Agreement" means the security agreement dated on or about the date
hereof between (1) Holdco and (2) the Security Trustee.
"Holdco Side Letter" means the letter agreement dated on or about the date hereof
between (1) Holdco, (2) the DBFO Co and (3) the Secretary of State relating to,
amongst other things, the Authorised Junior Security.
''Holding Company'' has the meaning given to it in Section 736 of the Companies Act
1985 as amended by Section 144 of the Companies Act 1989. Notwithstanding the
provisions of Clause 1.2.5 this definition shall not be changed in the event of an
amendment to the definition of ''holding company'' contained in the Companies Act
1985 as amended by the Companies Act 1989, whether by any subordinate legislation
or otherwise.
''Hold Point'' has the meaning given in paragraph 2 of Part 1 of Schedule 5 [Principles
for Quality Documentation].
"Immediate Penalty Point Failure" has the meaning given in Clause 26.1.2.
''Implementation Date'' means the date for implementation of a Department's Change
(other than one which is a variation in the design, quality or quantity of the Works) as
agreed or determined in accordance with Annex 1 to Part 1 of Schedule 12
[Department's Change].
''Improvement'' means any change, improvement or addition to the design, layout or
structure of the Project Facilities made or proposed to be made by the DBFO Co on or
after the following dates:
(a)
for the Existing Road (other than any Upgraded Section), at any time after the
date of this Agreement; and
(b)
for the New Road (including, without limitation, any Upgraded Section) and
Off-Site Facilities at any time after the issue of the Completion Certificate,
which can lawfully be accomplished by the DBFO Co without obtaining New Orders.
''Incident'' means an occurrence necessitating traffic control measures either by the
DBFO Co or the police or affecting or potentially affecting safety, the environment or
the structural integrity of the Project Road.
''Index'' has the meaning given in paragraph 1 of Part 4 of Schedule 9 [Indexation].
"Indexation Date" means, for the purposes of Part 4 of Schedule 9 [Indexation], the
Review Date or any other date on which any Index is to be applied.
"Initial Hedging Agreement" means the hedging arrangements entered into by the
DBFO Co in connection with interest payable under the Credit Agreement on or about
the date hereof.
"Injurious Affection Costs" means any Claim or Loss arising under Section 10 of the
Compulsory Purchase Act 1965 or Part 1 of the Land Compensation Act 1973 or
otherwise in relation to injurious affection or nuisance or infringement of rights
whether actionable or not in relation to the construction, use or operation of the Project
Road or in relation to the operation or effects of any statutory order promoted or made
in relation to the construction, use or operation of the Project Road.
"Injurious Affection Party" means any person other than a Compensation Party entitled
to Land Compensation Costs in connection with the Project.
"Injurious Affection Party Accommodation Works" or "IAPA Works" means works
carried out in lieu of the entitlement of an Injurious Affection Party to Land
Compensation Costs including, without limitation, any works carried out in the
discharge of the Requirements of Interested Parties set out in Part 4 of Schedule 8
boundary fencing and boundary arrangements, means of access and screening.
''Initial Inspection'' has the meaning given in Clause 19.2.1.
"Insolvent" means (for the purposes of Clause 20.9 [Insurance]) in relation to a person,
that an Insolvency Event has occurred.
"Insolvency Event" means, (for the purposes of Clause 20.9 [Insurance]) in relation to
a person:
(a)
the issue of a petition for winding up of that person which petition is not
withdrawn or discharged within seven (7) days of its issue;
(b)
the making of an order or an effective resolution being passed for the winding
up of that person;
(c)
a liquidator, receiver, administrative receiver, administrator, trustee or other
similar officer or an encumbrancer taking possession of the whole or any part
of that person's undertaking, property or assets;
(d)
that person entering into a company voluntary arrangement within the meaning
of Part 1 Insolvency Act 1986 or otherwise making an arrangement,
composition or assignment for the benefit of all or any part of its creditors;
(e)
that person being unable to pay its debts within the meaning of section
123(l)(e) of the Insolvency Act 1986 (without the need to prove any fact or
matter to the satisfaction of the Court);
(f)
the issue of a notice of intention to appoint an administrator.
"Insulation Works" has the meaning given in Part 6 of Schedule 4 [Noise Insulation
Requirements].
"Insurance Review Date" means each of the following dates:
(a)
the First Insurance Review Date;
(b)
each subsequent second Review Date after the First Insurance Review Date;
and
(b)
the Termination Date.
"Insurance Review Period" means:
(a)
in relation to the First Insurance Review Date, the period from the date of this
Agreement until the date of issue of the Completion Certificate (the
"Construction Review Period");
(b)
in relation to each subsequent Insurance Review Date (other than the Last
Insurance Review Date), the two year period preceding the last Relevant
Completion Certificate Anniversary to occur immediately prior to such
Insurance Review Date (each such period being an "O&M Review Period");
(c)
in relation to the Last Insurance Review Date, the period from (i) the last
Relevant Completion Certificate Anniversary to occur prior to the Termination
Date until (ii) the Termination Date (the "Last O&M Review Period").
"Insurance Year" means a period of twelve months starting on an anniversary of the
issue of the Completion Certificate, with the exception of the first Insurance Year
which shall be a period of twelve months starting on the issue of the Completion
Certificate and the last Insurance Year which shall commence on the last anniversary
of the issue of the Completion Certificate to occur prior to the Termination Date and
shall end on the Termination Date.
"Insurances" has the meaning given in Clause 20.1.1.
''Intellectual Property'' means all current and future legal and/or equitable interests in
registered or unregistered trade marks, service marks, patents, registered designs,
utility marks, applications for any of the foregoing, copyrights, unauthorised extraction
and/or re-utilisation rights, unregistered designs, inventions, confidential information,
know-how or other intellectual property rights subsisting in or relating to the Design
Data and/or the Traffic Data.
"Intercreditor Deed" means the intercreditor deed dated on or about the date hereof
entered into by (1) the DBFO Co, (2) Holdco, (3) the Equity Bridge Guarantor, (4)
Carillion Private Finance Limited, (5) the Senior Lenders, (6) the Mezzanine Lenders,
(7) the Hedging Banks, (8) the Equity Bridge Lenders, (9) the Sponsor, (10) the
Issuing Bank, (11) the Senior Facility Agent and Security Trustee and (12) the
Mezzanine Facility Agent (as each such party, where the same is not defined in this
Agreement, is defined therein).
''Interested Parties'' means those persons who may be affected by the carrying out of
the Works or Operations or who are duly authorised by a Legal Requirement to review
or otherwise take an interest in the Works or Operations, including without limitation
the Relevant Authorities and those persons identified in Part 2 of Schedule 8 [Other
Interested Parties].
''Interest Rate'' means a rate of interest per annum equivalent to the average of the base
lending rates announced by Barclays Bank PLC and Royal Bank of Scotland PLC
which are current on the date upon which the amount bearing interest first became due
(such interest to accrue daily on the basis of a 365 day year and to be compounded at
six monthly intervals). In the event of any variation in such lending rates being
announced while such amount remains outstanding, the interest payable shall be
correspondingly varied from the date of each such variation.
"Interim Advice Notes" means the interim advice notes published by the Department.
"Internal Advice Notes" means the internal advice notes published by the Department.
''Investigation'' means any ground, physical or geophysical investigation of the
conditions of the Site or Adjacent Areas, including the surface and subsoil, or
archaeological or ecological survey of the Site or Adjacent Areas, to enable the Works
to be designed and constructed with due regard for those conditions and for seismic
activity in the region of the Site and Adjacent Areas.
''Judicial Review'' means any application for judicial review (including any application
for leave) made under Part 54 of the Civil Procedure Rules seeking review of any
determination, decision, order or omission of the Secretary of State or any application
for a declaration (not made pursuant to such Part 54) which concerns the legality of
any determination, decision, order or omission of the Secretary of State or any
statutory challenge, action or appeal which proceeds on similar principles.
"Land Compensation Costs" means all amounts (including, without limitation, any
interest) properly payable to compensate for Claims and associated Losses (including,
without limitation, Injurious Affection Costs) incurred by owners or occupiers of land
or owners of Rights in respect of land whose property is acquired, taken or otherwise
injuriously affected (including, without limitation, an effect consequent upon rights
being created) by the Orders or the use of the Project Road.
''Landscape Architect'' means Symonds Group Limited of 24-30 Holborn, London
EC1N 2LX acting through its Principal, Roger Cooper, or such substitute (who shall
act through its Principal who shall be a full member of the Landscape Institute (Design
Division) or its equivalent with a minimum of 10 years' relevant post qualification
experience) as may be appointed by the DBFO Co for the time being in accordance
with Clause 45.4.1. or 45.4.2 [Sub-Contracting].
''Lane Closure'' means:
(a)
any partial or total closure or other restriction (including, without limitation,
any narrowing of one or more traffic lanes (in one direction of travel) on the
Project Road;
(b)
any partial or total closure or other restriction of any hard shoulder on the
Project Road;
(c)
to the extent not included in paragraph (a) or (b) above, any partial or total
closure or other restriction of any slip road, access road, side road or other
part of the Project Road;
but excluding in any such case any Type C lane closures (as defined in Section 6 of
Chapter 8 of the Traffic Signs Manual).
''Last Contract Year'' has the meaning given in the definition of ''Contract Year''.
"Last Insurance Review Date" means the Insurance Review Date that occurs on the
Termination Date.
"Last O&M Review Period" has the meaning given in paragraph (c) of the definition of
"Insurance Review Period".
''Latent Defect'' has the meaning given in Clause 17.1 [Latent Defects].
''Law'' means any applicable law (including any rule of common law), statute,
proclamation, by-law, directive, decision, regulation, rule, order, notice, rule of court
or delegated or subordinate legislation.
''Legal Requirement'' means the requirement of any United Kingdom or European
Community Law or of any Law, requirement or demand of any Relevant Authority
which has jurisdiction with regard to any of the Operations or whose systems may be
affected by the conduct of any of the Operations.
''Legislation'' means United Kingdom legislation or subordinate legislation or any
legislative act of the Council of the European Union or the Commission of the
European Communities which (without further enactment) has legal effect within the
United Kingdom.
''Liaison Procedures'' means any of the procedures set out in Schedule 16 [Liaison
Procedures] or to be developed pursuant to this Agreement in accordance with such
Schedule 16 [Liaison Procedures], as the case may be.
"Link" means a unidirectional sub-section of a Carriageway Section, the limits of
which, prior to the issue of a Permit to Use for Scheme 1 are as defined in Annex 1 to
Part 2 of Schedule 9 and thereafter are as defined in Annex 1 to Part 1 of Schedule 9
and further detailed on the drawings numbered A249/09/01/01-001 and 002 set out in
Part 5 of Schedule 9 [Drawings].
''Local Authority Road'' means any De-Trunked Segment and any part of the Off-Site
Facilities which is or is to be a highway maintainable at public expense as indicated or
shown on drawings numbered A249/03/01-011 and A249/03/02-001 to 004 (inclusive)
set out in Part 7 of Schedule 3 [Drawings], including without limitation all
carriageways, hard shoulders, slip roads, side roads, access roads, bridges and other
highway structures, together with all supporting infrastructure and amenity, including
without limitation all fences and barriers, drainage systems including outfalls and
balancing ponds, grassed areas, hedges and trees, planted areas, footways, road
markings, road traffic signs, road traffic signals, road lighting, communications
installations, embankments and cuttings.
''Local Facilities'' means any Local Authority Road, CPA Works and any other part of
the Off-Site Facilities which (on completion of any Works in respect thereof) is to be
operated and maintained by the Secretary of State, a local authority or other third
party.
''Local Person'' means any highway authority or other party to whom any Local
Facilities are to be handed over in accordance with Clause 13.3 [Local Facilities and
De-Trunked Segments].
''Long Vehicle'' means any motor vehicle greater than six (6) metres in length.
''Loss'' means any loss, damage, cost or expense.
''Maintenance Works'' means any works for the maintenance or repair of the Project
Facilities made or proposed to be made by the DBFO Co on or after the following
dates:
(a)
for the Existing Road, at any time after the O&M Commencement Date;
(b)
for the New Road and Off-Site Facilities located on Adjacent Areas, at any
time after the issue of the Completion Certificate,
but excluding any Routine Maintenance.
"Management Services Agreement" means the agreement so titled of even date herewith
between the DBFO Co, Holdco and TPS Consult Limited (trading as TPS Schal) in
respect of, inter alia, the provision of personnel to the DBFO Co.
"Management System Documentation" means Quality Documentation, Environmental
Management System Documentation and Health & Safety Management System
Documentation.
"Management Systems" means Quality Management Systems, Environmental
Management Systems and Health & Safety Management Systems.
"Manual of Contract Documents for Highway Works'' or ''MCHW'' means the manual
for contract documents for highway works published by The Stationery Office.
''Milestone Event'' has the meaning given in Part 2 of Schedule 1 [Milestone Event].
"Minimum Environmental Performance Level" has the meaning given in paragraph 2.5
of Part 5 of Schedule 14 [DBFO Co's 5 Year Environmental Management Plan].
''Minimum Performance Criteria'' has the meaning given in Appendix 1 to Annex 2 to
Part 1 of Schedule 9 [Congestion Management Payments] and ''Minimum Performance
Criterion'' shall mean one of the Minimum Performance Criteria as appropriate.
''Minimum Performance Level'' has the meaning given in paragraph 2.6 of Part 3 of
Schedule 14 [DBFO Co's 5 Year Management Plan].
''Monthly Report'' has the meaning given in paragraph 2 of Part 2 of Schedule 14
[Reports].
"National Data Processing Authority" means TRL Limited or any other replacement
authority responsible for operating a national database of PIAs and for producing data
relating to PIAs required for the calculation of the Safety Performance Adjustment.
"National Speed Limit" means, in relation to a Carriageway Section, the maximum
speed at which a person may legally drive a motor vehicle along that Carriageway
Section.
''Net Cash Flow'' means the DBFO Payments less any operating and maintenance
costs, capital expenditure and taxes.
"Network Board" means the strategic partnering board to be established and
maintained by the Parties.
"Network Rail" means Network Rail Infrastructure Limited registered in England with
number 2904587 whose registered office is at 40 Melton Street, London NW1 2EE
and including any successor in title to Network Rail or any other subsequent or
replacement body.
"Network Rail Agreement" means the agreement dated 9th February 2004 between the
Secretary of State and Network Rail in the form of the Agreement set out in Part 5 of
Schedule 8 [Form of Network Rail Agreement].
"Network Rail Loss" means any Loss suffered by the DBFO Co arising from or
occasioned by a breach by Network Rail of its obligations under the Network Rail
Agreement but excluding any costs or delays occasioned by the terms of or failure to
obtain or receive timely Possessions, Network Rail Consents (as such terms are defined
in the Network Rail Agreement), consents, permissions, orders and approvals unless
such costs or delays are due to the negligence or wilful default in bad faith of Network
Rail, its agents or employees.
"Network Rail Recovery Amount" means the amount (net of any costs of recovery
which have not been recovered by the Secretary of State from Network Rail or the
DBFO Co) that the Secretary of State has recovered from Network Rail in respect of
any Network Rail Loss.
''New Order'' means any line, side road, de-trunking, compulsory purchase or other
order, any certificate, approval, revocation, consent or variation of any existing order,
statutory instrument or other subordinate legislation made in respect of the Project
Facilities in accordance with the terms of this Agreement.
''New Road'' means (subject to Clause 8.8 [Boundaries of Site and Adjacent Areas],
paragraph 6 of Part 1 of Schedule 13 [Procedure for Additional Works], paragraph 7
of Part 3 of Schedule 13 [Subsequent Schemes] and paragraph 3 of Part 4 of Schedule
13 [Improvements]) the lengths of trunk road or motorway described in Part 2 of
Schedule 3 [New Road] located in the areas shown on drawings numbered
A249/03/02-001 to 004 (inclusive) set out in Part 7 of Schedule 3 [Drawings] and
constructed or modified or to be constructed or modified by the DBFO Co, including
without limitation:
(a)
all carriageways, hard shoulders, slip roads, side roads, access roads, bridges
and other highway structures whether over or under such road (but excluding
the bridges and other structures (if any) so specified in Part 2 of Schedule 3
[New Road] to the extent so specified);
(b)
unless otherwise expressly provided, any Upgraded Sections,
together with all supporting infrastructure and amenity, including, without limitation,
all fences and barriers, drainage systems including outfalls and balancing ponds,
grassed areas, hedges and trees, planted areas, footways, cycleways, road markings,
road traffic signs, road traffic signals, road lighting, communications installations, the
Monitoring System, embankments and cuttings but excluding any parts thereof which
are excluded from this definition from time to time in accordance with Clause 13.3.5.2.
"Noise Insulation Requirements" has the meaning given in Part 6 of Schedule 4 [Noise
Insulation Requirements].
"Non-Urgent Traffic Signal Fault" has the meaning given in Section 3 of Part 2 of
Schedule 6.
''Notes for Guidance'' means the Notes for Guidance on the Specification for Highway
Works, published by The Stationery Office as Volume 2 of the Manual of Contract
Documents for Highway Works.
''Notice'' has the meaning given in Clause 46.1 [Requirement for Writing].
"Nuisance" means statutory, public and private nuisances as defined from time to time
by Law.
"O&M Commencement Date" means the later of:
(a)
the Commencement Date; and
(b)
1st June 2004.
''O&M Requirements'' means the standards, specifications, procedures and other
requirements for the operation and maintenance of the Project Facilities set out or
identified or referred to in Part 2 of Schedule 6 [O&M Requirements], as amended
from time to time by any Department's Change or in accordance with Clause 14.2
[O&M Requirements].
"O&M Review Period" has the meaning given in paragraph (b) of the definition of
"Insurance Review Period".
"O&M Standards" means the standards and specifications set out in Part 4 of Schedule
6 [O&M Standards] as amended from time to time in accordance with Clause 14.2
[O&M Requirements].
"Occupied Property" means, the property known as Barrowsgate shown for the
purposes of general identification only on drawing number A249/03/01-008 set out in
Part 7 of Schedule 3 [Drawings].
''Off-Site Facilities'' means:
(a)
(subject to paragraph 3 of Part 4 of Schedule 13 [Improvements]) those parts
of the Permanent Works located on Adjacent Areas, including but not limited
to carriageways, hard shoulders, slip roads, side roads, access roads,
pedestrian subways, cycleways, bridges and other highway structures, land
under bridges, fences and barriers, drainage systems including outfalls and
balancing ponds, grassed areas, hedges and trees, planted areas, footways,
road markings, road traffic signs, road traffic signals, road lighting,
communications installations, embankments and cuttings, but excluding any
parts thereof which are excluded from this definition from time to time in
accordance with Clause 13.3.5.2; and
(b)
subject to paragraph 6 of Part 1 of Schedule 13 [Procedure for Additional
Works], those Additional Works (if any) located on Adjacent Areas; and
(c)
subject to paragraph 7 of Part 3 of Schedule 13 [Subsequent Schemes], any
part of any Subsequent Scheme located on Adjacent Areas.
''Off-Site Works'' means those parts of the Works which are to be carried out by the
DBFO Co in respect of the Off-Site Facilities.
''Operation and Maintenance Contract'' means the contract so titled of even date
herewith between the DBFO Co and the Operator for the operation and maintenance of
the Project Facilities.
''Operations'' means the activities of or required of the DBFO Co (and/or any of the
DBFO Co's agents, employees, contractors or sub-contractors of any tier) in
connection with the performance of any obligations of the DBFO Co under this
Agreement, and the conduct of any works or operations of the DBFO Co (and/or any
of the DBFO Co's agents, employees, contractors or sub-contractors of any tier) on or
in relation to the Project Facilities, the Site or the Adjacent Areas.
''Operator'' means Carillion Highway Maintenance Limited of Birch Street,
Wolverhampton, West Midlands WV1 4HY or such substitute as may be appointed by
the DBFO Co for the time being in accordance with Clause 45.4.1 or 45.4.2.
''Operator's Quality Documentation'' has the meaning given in Clause 23.2.1.4.
''Orders'' means the orders, certificates, statutory instruments and other subordinate
legislation listed in Part 6 of Schedule 3 [Scheme Orders] as may be amended,
modified, varied or superseded by any New Order. Where the context so requires it
shall mean any of the individual orders comprising the Order.
''Ordinary Shares'' means ordinary shares of £1 each in the capital of the DBFO Co.
"Original Senior Debt Differential" means, as at any date, the amount by which the
amounts outstanding as at such date under the Facilities (as defined in the Credit
Agreement) exceed the amounts which were projected in the Base Case to be
outstanding as at such date under the Facilities (as defined in the Credit Agreement),
taking into account any rescheduling of such projected amounts pursuant to Approved
Reschedulings.
''Other Party'' has the meaning given in paragraph 1.2 of Part 2 of Schedule 12
[General Change Procedure].
''Other Vehicles'' means all motor vehicles other than Long Vehicles.
"Parent Company Guarantee" means the parent company guarantee dated on or before
the date hereof between (1) Carillion plc and (2) the DBFO Co.
"Partnering Facilitator" means the person appointed by the Secretary of State to fulfil
the role referred to in paragraph 4 of Schedule 23 [The Network Board].
''Part of the New Road'' means any part of the New Road so designated in Part 2 of
Schedule 3 [New Road].
''Penalty Points'' has the meaning given in Clause 26.2 [Penalty Points].
''Performance Guarantee'' means a guarantee in the form set out in Part 1 of Schedule 1
[Form of Performance Guarantee].
''Permanent Works'' means the works having a permanent function (regardless of the
length of the design life of such works) which are to be or have been designed,
constructed and completed by the DBFO Co in accordance with the Construction
Requirements and the Communications Requirements.
''Permit to Use'' means a permit in the form set out in Annex 1(14) to Part 3 of
Schedule 4 [Design and Certification Procedure] to be issued by the Department's
Nominee in accordance with Clause 13.1.
"Persistent Neglect Notice" means a notice to the DBFO Co which:
(a)
states on its face that it is a notice being given for the purposes of Clause
26.7.1;
(b)
states which sub-clause of Clause 26.7.1 is relevant;
(c)
identifies the obligation with which the DBFO Co is neglecting persistently to
comply;
(d)
identifies the dates of the relevant number of occasions (determined by
reference to Clause 26.7.1) upon which Penalty Points have been issued in
respect of such failure to perform such obligation in accordance with Clause
26.2 [Penalty Points]; and
(e)
is signed by the Department's Nominee and counter-signed on behalf of the
Secretary of State by an official of the Department who is more senior than the
Department's (or the Highways Agency's) DBFO Manager for the Project.
"Persistent Neglect Notice Plan" means, in relation to an obligation with which the
DBFO Co has neglected persistently to comply and in respect of which the
Department's Nominee has issued a Persistent Neglect Notice in accordance with
Clause 26.7.1, a plan which sets out the steps the DBFO Co will take to ensure that
such non-compliance will not subsequently recur.
"Persistent Neglect Remedy Programme" means a programme specifying in reasonable
detail the manner in which the DBFO Co intends to remedy a breach of an obligation
which is the subject of a Persistent Neglect Notice and the latest date by which it is
intended that such breach will be remedied.
"Persistent Neglect Undertaking" means, in relation to an obligation with which the
DBFO Co has neglected persistently to comply and in respect of which the
Department's Nominee has issued a Persistent Neglect Notice in accordance with
Clause 26.7.1, a notice from the DBFO Co undertaking to the Secretary of State that
the DBFO Co will use best endeavours to ensure that such non-compliance will not
subsequently recur.
''PIA'' or ''Personal Injury Accident'' means an injury accident as reported on police
report STATS 19 (or any replacement of or substitute for such report) as processed by
the Data Processing Authority.
''PIA Change Effective Date'' means, in relation to an Eligible Change, the date on
which such Eligible Change first has or will have an effect on the number of Personal
Injury Accidents on the Project Road.
''Plant'' means machinery, apparatus and the like intended to form or forming part of
the Project Facilities.
''Pre-Commencement Costs'' means all costs (in each case net of amounts received or
receivable in respect thereof or benefits relating thereto) properly incurred in
connection with the Project by the DBFO Co during the Pre-Commencement Period in
accordance with Clauses 6.2 [Investigations and Surveys], 6.3 [Other Preparatory
Works], 6.4 [Works by Relevant Authorities] and 6.5 [Authorised Expenditures] and
to which the DBFO Co is entitled to reimbursement in accordance with such Clauses
6.2 [Investigations and Surveys], 6.3 [Other Preparatory Works], 6.4 [Works by
Relevant Authorities] and 6.5 [Authorised Expenditures] and including:
(a)
all liabilities in respect of such costs arising as a result of termination of this
Agreement;
(b)
any financing charges, fees, interest (but not default interest other than default
interest arising as a result of a breach by the Secretary of State of any of his
obligations under this Agreement) or breakage costs paid or payable under the
Funding Agreements in respect of principal sums drawn down to pay any such
costs (but not the principal sums themselves or any other amount paid or
payable under the Funding Agreements);
(c)
an amount equal to the Hedging Termination Amounts, if such Hedging
Termination Amounts are paid by the DBFO Co under any Hedging
Agreements; and
(d)
the cost of any insurance specified in paragraph 1.1 to 1.6 (inclusive) and
paragraph 1.8 of Part 1 of Schedule 10 [Insurances] and in respect of which
evidence has been provided to the Department's Nominee in accordance with
this Agreement but excluding from such cost an amount equal to any
commission in respect of such policies paid or credited to or for the benefit of
Carillion Insurance Advisers Limited but not excluding any part thereof that is
properly payable to a third party broker on a bona fide arm's length basis.
all as shown in the Termination Accounts.
''Pre-Commencement Period'' means the period from the date of this Agreement until
the Commencement Date.
"PRIDe" means the performance review group of that name established by the
Highways Agency.
"Primary Function" has the meaning given in paragraph 1.5.5 of Annex 10/B to Part 2
of Schedule 4 [Environmental Requirements].
"Principal" means a partner or director of the relevant organisation having authority,
inter alios, to sign Certificates on behalf of such organisation.
''Programmed Completion Date'' has the meaning given in Part 3 of Schedule 12
[Change Definitions].
''Project'' means the design and construction of the Works, the operation and
maintenance of the Project Facilities and the conduct of any other Operations during
the Contract Period and the financing of such activities.
''Project Documents'' means the documents referred to in Clause 2.3.1 and (as soon as
it has been executed) each document referred to in Clause 2.3.1A.
''Project Facilities'' means the Project Road and the Off-Site Facilities.
''Project Road'' means the Existing Road and the New Road.
''Proponent'' has the meaning given in paragraph 1.2 of Part 2 of Schedule 12 [General
Change Procedure].
''Proposed Substitute'' has the meaning given to it in the Direct Agreement.
''Proposal'' has the meaning given in paragraph 1 of Section A of Part 3 of Schedule 4
[Design and Certification Procedure].
''Protestor'' means any person engaged in protest action against the construction or
operation of the Project Road or against the construction or operation of highways
generally.
"Qualifying Refinancing" has the meaning given in Schedule 25 [Refinancing].
''Quality Documentation'' means the quality manuals, quality plans, quality procedures,
inspection and test plans, work instructions or like documentation, as appropriate,
which describe and define a Quality Management System.
''Quality Management Systems'' means the organisational structure, procedures,
processes and resources for determining and implementing quality policy.
''Quarter'' means a period of three calendar months beginning on 1st January, 1st April,
1st July or 1st October.
"Quieter Road Surface" means a road surface formed from a material that has the
capability of providing road/tyre noise levels that are quieter than hot rolled asphalt by
at least 2.5 dB(A) as demonstrated by the value of Road Surface Influence stated on
the relevant British Board of Agrément HAPAS Roads and Bridges Certificate for
such material.
"Ramsar Sites" means sites designated under the Convention on the Conservation of
Wetlands of International Importance.
''Recovery Amount'' means the amount (net of any costs of recovery) which the
Secretary of State has recovered from a Third Party Contractor in respect of Defective
Work.
"Refinancing" has the meaning given in Schedule 25 [Refinancing].
''Relevant Authority'' means any person identified in Part 1 of Schedule 8 [Relevant
Authorities] and any other person whose authority is or may be required for the
carrying out of all or any part of the Operations or which has any authority or right in
respect of any part of any of the Project Facilities under any Law.
''Relevant Change'' has the meaning given in paragraph 1.1 of Annex 1 to Part 2 of
Schedule 12.
''Relevant Change in Law'' means:
(a)
any Change in the Scope of Value Added Tax; and
(b)
any Change in Law the effect of which is to discriminate against:
(i)
the Project Road in relation to other roads;
(ii) roads whose design, construction, financing and operation are procured
under a single contractual arrangement similar to that for the Project
Road in relation to other roads;
(iii) the DBFO Co in relation to other companies; or
(iv) companies undertaking the functions referred to in paragraph (ii) above
under a single contractual arrangement similar to that for the Project in
relation to other companies,
unless the Secretary of State can demonstrate that this effect is not intended
provided that Legislation which also affects roads other than the Project Road or
companies other than the DBFO Co shall not be deemed to be discriminatory solely on
the basis that its effect on the Project Road or the DBFO Co is greater than on any
such other roads or other companies and provided further that any Change in the Scope
of Value Added Tax in the United Kingdom shall not be treated as a Relevant Change
of Law for the purposes of Schedule 12 to the extent that the DBFO Co is otherwise
compensated under this Agreement for increases in costs which it suffers as a result of
such change in scope.
"Relevant Change Notice" has the meaning given in Part 3 of Schedule 12 [Change
Definitions].
"Relevant Completion Certificate Anniversary" means each fifth anniversary of the
date of issue of the Completion Certificate.
"Relevant Link" means, in respect of a Carriageway Section for a Payment Period, the
Link on that Carriageway Section which records the highest number of PCUs for that
Payment Period.
"Relevant PN Period" means:
(a)
where the relevant Persistent Neglect Notice was issued in reliance upon
Clause 26.7.1.1, two years;
(b)
where the relevant Persistent Neglect Notice was issued in reliance upon
Clause 26.7.1.2, one year;
(c)
where the relevant Persistent Neglect Notice was issued in reliance upon
Clause 26.7.1.3, one year;
(d)
where the relevant Persistent Neglect Notice was issued in reliance upon
Clause 26.7.1.4, one year;
(e)
where the relevant Persistent Neglect Notice was issued in reliance upon
Clause 26.7.1.5, six months;
(f)
where the relevant Persistent Neglect Notice was issued in reliance upon
Clause 26.7.1.6, six months;
(g)
where the relevant Persistent Neglect Notice was issued in reliance upon
Clause 26.7.1.7, three months; and
(h)
where the relevant Persistent Neglect Notice was issued in reliance upon
Clause 26.7.1.8, a period which is determined on a pro rata basis having
regard to the relevant periods referred to in paragraphs (a) to (g) above and the
frequency with which the relevant obligation falls to be performed.
"Relevant Project Document" means any Project Document other than (i) any Funding
Agreement listed at Clause 2.3.1.3 or (ii) any Shareholder Subordinated Loan
Agreement listed at Clause 2.3.1.5.
''Relevant Regulatory Authority'' means the European Commission or the Office of
Fair Trading or such other regulator who may have concurrent jurisdiction with the
Office of Fair Trading under the Competition Act 1998.
''Remedial Period'' has the meaning given in Clause 26.1.2.
''Renewal Amount'' means the cost of carrying out the Renewal Works as agreed or
determined in accordance with Clause 19 [Handback].
''Renewal Programme'' means the programme for the carrying out of the Renewal
Works over the remainder of the Contract Period following the Initial Inspection, as
agreed or determined in accordance with Clause 19 [Handback], as such programme
may be revised or amended at any time in accordance with Clause 19 [Handback].
''Renewal Works'' means the Maintenance Works or other works of renewal,
reconstruction, repair or reinstatement required, as agreed or determined at any time in
accordance with Clause 19 [Handback], to be carried out in order to procure that the
Project Facilities will, on the Expiry Date, satisfy the Handback Requirements.
''Report'' means any report given in accordance with Clause 24.1 [Required Reports].
''Requirements of Interested Parties'' means the requirements of Interested Parties set
out or referred to in Parts 3 and 4 of Schedule 8 [Third Parties].
"Rescue Refinancing" means any Refinancing (other than a Qualifying Refinancing)
which occurs after the occurrence of:
(a)
an Event of Default (as defined in the Credit Agreement); or
(b)
an event or circumstance which with the giving of notice and/or the effluxion
of time would constitute an Event of Default (as defined in the Credit
Agreement),
but only to the extent of any terms of such Refinancing that are either:
(i)
necessary to, in the case of paragraph (a) above, remedy or, in the
case of paragraph (b) above, prevent the occurrence of such Event of
Default; or
(ii)
(provided such Refinancing also contains terms falling within
paragraph (i) above) substantially equivalent to those which a prudent
banker would require for such Refinancing (having regard to the
circumstances of the DBFO Co and the terms generally available in
the relevant financial markets for refinancings comparable to such
Refinancing, in each case prevailing at the date of such Refinancing)
as an acceptable basis for continuing to make the facilities comprised
in such Refinancing available to, and/or permitting such facilities to
remain outstanding from, the DBFO Co.
''Residual Life'' means that part of the Serviceable Life of an element of the Project
Facilities that remains at the Termination Date.
''Residual Value'' means any value attaching to the Ordinary Shares in issue
immediately following termination of this Agreement pursuant to Clause 44
[Compensation on Termination] arising as a result of or attributable to either:
(a)
the continuing activities of the DBFO Co and any of its Subsidiaries other than
the Project; or
(b)
the value of any assets relating to or derived from the Project remaining vested
in the DBFO Co or any of its Subsidiaries immediately following termination,
such value to be as agreed by the Department's Nominee and the DBFO Co's financial
adviser or, if no such agreement has been reached within 60 days after the date of
termination of this Agreement, as determined by the Disputes Resolution Procedure on
reference by either Party.
''Retention Account'' means a joint deposit account to be opened in the names of the
Secretary of State and the DBFO Co in accordance with Clause 19.7.1.
''Retention Sum'' means an amount equal to 40% of the Renewal Amount from time to
time.
''Review Date'' means the last day of a Contract Year.
''Review Procedure'' means the procedure whereby submissions are made to the
Department's Nominee as set out in Part 2 of Schedule 7 [Review Procedure].
''Revised Value'' has the meaning given in paragraph 1.1 of Annex 6 to Part 2 of
Schedule 12 [General Change Procedure].
''Rights in respect of land'' means any right or licence over or in respect of or otherwise
relating in any way to land, whether temporary, revocable, legal, equitable or otherwise
of whatever nature.
''Road User's Charter'' means the document of that name issued by the Highways
Agency in November 2000 or any replacement or substitute therefor.
''Routine Maintenance'' means work which is short term or cyclic in nature and
necessary to keep the Project Facilities in good and safe working order, including
without limitation minor repairs to all elements of the Project Facilities, cleansing,
verge and horticultural maintenance and Winter Maintenance and inspections and
surveys associated with any of the foregoing.
"Routine Maintenance Management Systems Manual" or "RMMS Manual" means the
Routine Maintenance Management Systems Manual published by the Department.
''RPI'' means the Retail Prices Index (all items) published by the Office for National
Statistics.
"Safety Performance Adjustment Notice" has the meaning given in Clause 32.3.2.
''Schedule of Lane Closures'' means a schedule submitted:
(a)
by the DBFO Co under Clause 15.3.1 (or any revision thereof submitted under
Clause 15.3.2 or Clause 15.3.3) indicating the period or periods during which
the DBFO Co plans to effect or otherwise reasonably foresees any Lane
Closure in respect of the Project Road including, for the avoidance of doubt
any Lane Closure in respect of any works by any Relevant Authority; or
(b)
by the Secretary of State under Clause 15.5.2 indicating the period or periods
during which the Secretary of State plans to close one or more lanes of traffic
using the Connecting Roads or to take any other action liable to restrict traffic
flow on the Connecting Roads,
but excluding in either case any Type C lane closures (as defined in Section 6 of
Chapter 8 of the Traffic Signs Manual).
"Scheme 1" means the Part of the New Road described in paragraph 3.1 of Part 2 of
Schedule 3 [New Roads].
"Scheme 2" means the Part of the New Road described in paragraph 3.2 of Part 2 of
Schedule 3 [New Roads].
''Scheme Specific Core Construction Requirements'' means the requirements set out or
identified or referred to in Part 1 of Schedule 4 [Scheme Specific Core Construction
Requirements].
''Scheme Specific Core Monitoring System Requirements'' means the requirements set
out or identified or referred to in Part 1 of Schedule 17 [Scheme Specific Core
Monitoring System Requirements].
''Scheme Specific Core O&M Requirements'' means the requirements set out or
identified or referred to in Part 1 of Schedule 6 [Scheme Specific Core O&M
Requirements].
''Second Inspection'' has the meaning given in Clause 19.4.1.
"Section Average Speed" means in respect of a Carriageway Section for a Payment
Period, the average speed of vehicles travelling over such Carriageway Section in such
Payment Period determined in accordance with paragraph 1 of Part 2 of Schedule 17
[Monitoring System Requirements].
"Security Trustee" means the Royal Bank of Scotland plc in its capacity as security
trustee to the Lenders (as defined in the Credit Agreement).
''Serviceable Life'' means:
(a)
in the case of a proprietary manufactured element of the Project Facilities, the
period of time, as declared in writing by the manufacturer, for which the
element will continue to perform as intended after incorporation in the Project
Facilities in a manner, and operating under design conditions, accepted by the
manufacturer, and subject to maintenance in accordance with the
manufacturer's written recommendations; and
(b)
in the case of a non-proprietary element of the Project Facilities, the period of
time for which the element is expected to continue to perform as intended after
completion of construction of the relevant Project Facilities, and subject to
design in accordance with the Construction Requirements and the
Communications Requirements and maintenance in accordance with the O&M
Requirements.
"Shareholders' Agreement" has the meaning given to it in Clause 2.3.1B.
"Signs Working Drawings" means the Signs Working Drawings, Volumes 1 to 3
published by the Stationery Office.
''Site'' means, subject to Clause 8.8 [Boundaries of Site and Adjacent Areas],
paragraph 6 of Part 1 of Schedule 13 [Procedure for Additional Works], paragraph 7
of Part 3 of Schedule 13 [Subsequent Schemes] and paragraph 3 of Part 4 of Schedule
13 [Improvements], the land, spaces, waterway, roads and any surface required for the
Project Road shown or identified as such on the date hereof on drawings entitled
'Existing Road Plan' and 'New Road Plan' contained in Part 7 of Schedule 3
[Drawings].
''Site Materials'' has the meaning given in Clause 8.9 [Disposal of Materials Won on
Site].
"SoS Insurance Account" has the meaning given in Clause 20.6.4.1.1.
''Special Events'' means events likely to affect significantly traffic flows on the Project
Road.
"Special Protection Areas" means areas designated under EU Directive 79/409/EEC on
the Conservation of Wild Birds.
''Specification for Highway Works'' or ''SHW'' means the Specification for Highway
Works, published by The Stationery Office as Volume 1 of the Manual of Contract
Documents for Highway Works.
"Specified CPA Works" means works carried out or to be carried out in lieu of the
entitlement of a Compensation Party to Land Compensation Costs comprising:
(a)
those works specified in Appendix 1/15 to Annex 6 to Part 2 of Schedule 4;
and
(b)
any works carried out in the discharge of the Requirements of Interested
Parties set out in Part 4 of Schedule 8.
''Specified Notices'' means the draft orders and notices to be prepared by the DBFO Co
in accordance with Part 7 of Schedule 4 [Preparation of Orders and Statutory Notices
Required for the opening of the New Road] which shall include, without limitation, the
following:
(a) notice advising the public on the right for claims to be made under Part 1 of the
Land Compensation Act 1973;
(b) notice to relevant local highways authority confirming that in accordance with
any Side Road Order, the highways affected will be its responsibility;
(c) notice of Noise Insulation Appeal procedure;
(d) notice to relevant highway(s) authorities in accordance with the requirements of
any Detrunking Order;
(e) Traffic Regulation Orders and Notices both temporary and permanent;
(f) any notices required to be given under the Orders;
(g) any notices required to be given to any of the Interested Parties.
"SPECLIB" means the Specification Library for the Specification for Highway Works
published by the Department.
"SSSI" means a site of Special Scientific Interest as defined in the Wildlife and
Countryside Act 1981.
''Statutory Undertaker'' means an undertaker for the purposes of Part III of the New
Roads and Street Works Act 1991 as defined in Section 48(4) of that Act.
''Step Change'' means a change in the Department's Standards;
(a)
the purpose and effect of which is to implement a Government Policy
Directive; and
(b)
which constitutes a substantial and unforeseeable variation to or departure
from the standards and specifications applicable to the operation and
maintenance of the motorway and/or trunk road network immediately prior to
such change.
''Strengthened Earthworks'' has the meaning given in paragraph 2 of Section A of
Part 3 of Schedule 4 [Design and Certification Procedure].
"Structure" means, for technical appraisal purposes (as referred to in Part 3 of
Schedule 4 [Design and Certification Procedure]), any temporary or permanent:
(a)
bridge, buried structure, subway underpass, masonry arch, culvert or any
other structure supporting the highway with a clear span or internal diameter
greater than 0.9 metres;
(b)
overhead crossing carrying a conveyor or utility service;
(c)
access gantry;
(d)
earth retaining structure where the level of the fill at the back of the structure
above the finished ground level in front of the structure is greater than 1.5
metres;
(e)
reinforced/strengthened soil/fill structure, with hard facings, where the level of
the fill at the back of the structure above the finished ground level in front of
the structure is greater than 1.5 metres;
(f)
reinforced/strengthened soil/fill which is an integral part of another highway
structure;
(g)
portal or cantilever sign and/or signal gantry;
(h)
cantilever traffic signal mast;
(i)
lighting column;
(j)
high mast of more than 20 metres in height for lighting;
(k)
mast for cameras, radio and telecommunication transmission equipment;
(l)
catenary lighting support system;
(m)
environmental barrier;
(n)
proprietary manufactured highway structure;
(o)
highway signs on posts of more than 4 metres in height;
(p)
road tunnels, tunnel services buildings and large service tunnels; and
(q)
small (0.9 metres to 2.0 metres) diameter service tunnels.
"Structure Statement" means the structure statement set out in Appendix 1 to Annex 7
of Part 2 of Schedule 4 [Structures Requirements for New Structures].
"Subordinated Shareholder Debt" means, at any time, the aggregate amount of
principal and accrued, but unpaid and uncapitalised, interest outstanding at that time
under:
(a)
the DBFO Co Loan Note Instrument as in force at the date of this Agreement;
or
(b)
if the DBFO Co Loan Note Instrument is amended or replaced after the date of
this Agreement, the DBFO Loan Note Instrument as so amended or replaced,
but only to the extent that there was no objection to such amendments or
replacements under the Review Procedure pursuant to Clause 2.3.2,
other than any liability or obligation of the DBFO Co under the DBFO Co Loan Note
Instrument which, had Holdco been a Funder and such DBFO Co Loan Note
Instrument been a Funding Agreement in respect of which an amount were payable by
the Secretary of State under Clause 44.3.2.1 would have been excluded from such
amount under Clause 44.4.1.2, Clause 44.4.1.3, Clause 44.4.1.4, Clause 44.4.1.7,
Clause 44.4.1.8, Clause 44.4.1.9, Clause 44.4.1.11 and Clause 44.4.1.12 and/or
Clause 44.4.1.13. To the extent that an Equal HoldCo Payment (as defined in the
Equity Subscription Agreement as in force at the date of this Agreement or, if amended
or replaced after the date of this Agreement, the Equity Subscription Agreement as so
amended or replaced, but only to the extent that there was no objection to such
amendments or replacements under the Review Procedure pursuant to Clause 2.3.2) is
made pursuant to clause 3.5 of the Equity Subscription Agreement, all references in
this definition to "DBFO Co Loan Note Instrument" shall be deemed to be references to
the loan referred to in that clause.
''Subsequent Design Contract'' means any contract entered into between the Contractor
and the Designer, in respect of, inter alia, the design and examination of the works in
relation to a Proposal (other than the Works).
''Subsequent Scheme'' means any change, improvement or addition to the design, layout
or structure of the Project Facilities made or proposed to be made by the DBFO Co on
or after the following dates:
(a)
for the Existing Road (other than any Upgraded Section), at any time after the
date of this Agreement; and
(b)
for the New Road (including, without limitation, any Upgraded Section) and
Off-Site Facilities at any time after the issue of the Completion Certificate,
which cannot lawfully be accomplished by the DBFO Co without obtaining New
Orders.
"Subsequent Scheme Completion Certificate" has the meaning given in paragraph 7 of
Part 3 of Schedule 13 [Subsequent Schemes].
''Subsequent Scheme Notice'' has the meaning given in paragraph 1.1 of Part 3 of
Schedule 13 [Subsequent Schemes].
''Subsidiary'' shall have the meaning given to it in Section 736 of the Companies Act
1985 as amended by Section 144 of the Companies Act 1989. Notwithstanding the
provisions of Clause 1.2.5, this definition shall not be changed in the event of an
amendment to the definition of ''subsidiary'' contained in the Companies Act 1985 as
amended by the Companies Act 1989, whether by any subordinate legislation or
otherwise.
"Surveyor" means Montagu Evans of 44-48 Dover Street, London W1S 4AZ acting
through its Principal, Robert Harvey, or such substitute (acting through its Principal
who shall be a chartered surveyor (or the equivalent) with a minimum of 5 years' post
qualification experience) as may be appointed by the DBFO Co for the time being in
accordance with Clause 45.4.1 or Clause 45.4.2 [Sub-Contracting].
"Sustainable Development" means, in respect of any activity, the carrying out of that
activity in a manner consistent with the following principles:
(a)
the effective protection of the environment;
(b)
the prudent use of natural resources;
(c)
the maintenance of high and stable levels of economic growth and employment;
and
(d)
the achievement of social progress which recognises the needs of everyone.
''Technical Appraisal Authority'' has the meaning given in paragraph 2.11 of Section A
of Part 3 of Schedule 4 [Design and Certification Procedure].
''Technical Requirements''
means the Construction Requirements, the O&M
Requirements, the Communications Requirements, the Handback Requirements, the
requirements set out in Clause 23.1.3.2 in respect of Quality Management Systems, the
requirements set out in Clause 23.1.3.3 in respect of the Environmental Management
Systems, the requirements set out in Clause 23.1.3.4 in respect of the Health & Safety
Management Systems and any other standard or specification referred to or set out in
this Agreement.
''Temporary Adjacent Areas'' means, subject to Clause 8.8 [Boundaries of the Site and
Adjacent Areas], those parts of the Adjacent Areas shown or identified as Temporary
Adjacent Areas on drawings numbered A249/03/02-001 to 004 (inclusive) set out in
Part 7 of Schedule 3 [Drawings] or as the Secretary of State may from time to time
specify.
''Temporary Construction Area'' means, at any time, any area within any Upgraded
Section within which any part of the Works is actively being carried out at such time.
"Temporary Speed Limit" has the meaning given by Section 88 of the Road Traffic
Regulation Act 1984.
''Temporary Works'' means all works and things (of a temporary nature) of every kind
required in or about the execution and completion of the Permanent Works or of
capital works in connection with the operation, maintenance or improvement of the
Project Facilities.
''Termination Accounts'' means:
(a)
accounts of the DBFO Co and, if appropriate, consolidated accounts of the
DBFO Co and its Subsidiaries which have been prepared applying accounting
principles and bases consistent with those applied in the immediately preceding
audited accounts of the DBFO Co or, as the case may be, consolidated audited
accounts of the DBFO Co and its Subsidiaries; and
(b)
a statement of liabilities of the DBFO Co in respect of the Project as at the
date of termination of this Agreement, or which arise out of or in connection
with such termination,
in each case drawn up as at such date of termination and to be agreed or determined as
provided in Clause 44.1 [Termination Accounts].
''Termination Date'' means the date upon which this Agreement terminates.
''Testing Contractor'' means Weeks Laboratories Limited of The Oasts, Newnham
Court, Bearsted Road, Maidstone, Kent ME14 5LH or such substitute (who shall have
operated at least ten site laboratories each of which shall have obtained a Category II
(NAMAS or UKAS) accreditation or its equivalent in respect of its calibration/testing
capability associated with highway works) as may be appointed by the DBFO Co for
the time being in accordance with Clause 45.4.1 or 45.4.2.
"The Swale High Level Crossing" means the new Structure to be provided across The
Swale in accordance with the Structure Statement.
''Third Party Contractor'' means any contractor which, under a contract with the
Secretary of State to which neither the DBFO Co nor any of its contractors or sub-
contractors is a party, has prior to the date of execution of this Agreement carried out
work in respect of the Existing Road.
''Third Party Contractor Claim Notice'' has the meaning given in Clause 17.5.1.
"TRACS" means a traffic speed condition survey as described in Interim Advice Note
42/02 for the purposes of recording road surface conditions.
"TRACS Contractor" means W.D.M. Limited of North View, Staple Hill, Bristol
BS16 4NX or such substitute (who shall have at least 5 years' experience in the
operation of high speed road monitoring and data collection and processing equipment)
as may be appointed by the DBFO Co for the time being in accordance with Clause
45.4.1 or 45.4.2.
"Traffic Control Centre Company" means Traffic Information Services (TiS) Limited
or such substitute or substitutes as may be appointed by the Secretary of State from
time to time and notified by the Secretary of State to the DBFO Co.
'Traffic Data'' means the information relating to traffic derived from the Counting
Equipment and the Speed Measuring Equipment.
"Traffic Noise Works" has the meaning given in Part 6 of Schedule 4 [Noise Insulation
Requirements].
''Traffic Sign'' has the meaning given to it in Section 64 of the Road Traffic
Regulations Act 1984.
"Traffic Signal Installation Contractor" means Siemens plc of Siemens House,
Oldbury, Bracknell, Berkshire RG12 8FZ or such substitute who shall have at least 5
years' experience of installation of traffic signal equipment as may be appointed by the
DBFO Co for the time being in accordance with Clause 45.4.1 or 45.4.2 [Sub-
Contracting].
"Traffic Signal Maintenance Contractor" means Siemens plc of Siemens House,
Oldbury, Bracknell, Berkshire RG12 8FZ or such substitute who shall have at least 5
years' experience of maintenance of traffic signal equipment as may be appointed by
the DBFO Co for the time being in accordance with Clause 45.4.1 or 45.4.2 [Sub-
Contracting].
"Traffic Signal System Certifier" means Symonds Group Limited of 24-30 Holborn,
London EC1N 2LX acting through Ian Routledge of Routledge Consultancy, Glenville,
Dike Lane, Upper Poppleton, York YO26 6PT, or such substitute (who shall be
independent of the Traffic Signal System Designer, the Traffic Signal Installation
Contractor and the Traffic Signal Maintenance Contractor and shall act through its
Principal who shall be a full member of the Institution of Highways and Transportation
or its equivalent with a minimum of 10 years' relevant post qualification experience) as
may be appointed by the DBFO Co for the time being in accordance with Clause
45.4.1 or 45.4.2 [Sub-Contracting].
"Traffic Signal System Designer" means Symonds Group Limited of 24-30 Holborn,
London EC1N 2LX acting through its Principal, Brian Crossland, or such substitute
(acting through its Principal who shall be a full member of the Institution of Highways
and Transportation or its equivalent with a minimum of 10 years' relevant post
qualification experience) as may be appointed by the DBFO Co for the time being in
accordance with Clause 45.4.1 or 45.4.2 [Sub-Contracting].
''Traffic Signs Manual'' means the manual of that name published by The Stationery
Office and any associated advice (including without limitation all local transport notes
issued from time to time by the Department and published by The Stationery Office).
''Traffic Signs Provisions'' means the Road Traffic Regulation Act 1984, The Traffic
Signs Regulations and General Directions 1994 (S.I. 1994/1519) and any authorisation
given under Section 64, or direction given under Section 65, of the Road Traffic
Regulation Act 1984.
''Trespasser'' means any person (other than a Protestor) not entitled to be on the Site or
Adjacent Areas.
"Trigger Date 1" has the meaning given in paragraph 2.1 of Part 3 of Schedule 9
[Construction Payments].
"Trigger Date 2" has the meaning given in paragraph 2.1 of Part 3 of Schedule 9
[Construction Payments] .
"Trigger Date 3" has the meaning given in paragraph 2.1 of Part 3 of Schedule 9
[Construction Payments].
''Trunk Roads Maintenance Manual'' or ''TRMM'' means the trunk roads maintenance
manual issued by the Department.
"Unapproved Rescue Refinancing " means any Eligible Rescue Refinancing which:
(a)
was submitted to the Review Procedure and in respect of which there was an
objection under the Review Procedure; or
(b)
was not submitted to the Review Procedure,
and, in either case, in respect of which the DBFO Co has complied with the
requirements of paragraphs 2.2, 2.6 and 2.7 of Schedule 25 [Refinancing].
"Unforeseeable Archaeological Features" means any Fossils or Antiquities the presence
of which could not reasonably have been foreseen at the date of this Agreement by a
competent archaeologist acting in accordance with Good Industry Practice having
regard, without limitation to the generality of the foregoing, to the following sources of
information:
(a)
Annex 10/E to Part 2 of Schedule 4 [Archaeology] and including, without
limitation, the documents referred to therein;
(b)
the Environmental Statement;
(c)
the Disclosed Data.
"Unrecovered Fixed Investment Costs" means such amount, if any, which the DBFO
Co has demonstrated to the satisfaction of the Secretary of State that the Operator has,
by reason only of the termination of the Operation and Maintenance Contract, failed to
recover as at the date of such termination in respect of the acquisition of property
rights, licences, equipment, goods and/or materials required in connection with the
performance of the Operation and Maintenance Contract.
"Unspecified CPA Works" means works (other than Specified CPA Works) carried out
or to be carried out in lieu of the entitlement of a Compensation party to Land
Compensation Costs including, without limitation, boundary arrangements, means of
access and screening.
''Upgraded Sections'' means those lengths of existing trunk road or motorway described
in paragraph 3 of Part 1 of Schedule 3 [Existing Roads] and identified as such on
drawings numbered A249/03/01-005 to 008 (inclusive) set out in Part 7 of Schedule 3
[Drawings], which are to be or have been widened or otherwise modified in accordance
with the Construction Requirements and the Communications Requirements.
"Urgent Traffic Signal Fault" has the meaning given in Section 3 of Part 2 of Schedule
6 O&M Requirements].
''User Paid Tolls'' has the meaning given in Part 3 of Schedule 12 [Change Definitions].
''Users'' means the users of the Project Road.
''VAT'' means value added tax or any similar tax which is introduced to replace value
added tax.
''VAT Sum'' has the meaning given in Clause 48.1.5.
"Vehicle Speed" means the speed of an individual vehicle as it passes a Speed
Measurement Point.
''Warning Notice'' has the meaning given in Clause 26.3 [Warning Notices].
"Week" for the purposes of Schedule 9 has the meaning given in paragraph 2.1 of Part
1 of Schedule 9 [Congestion Management Payments].
''Winter Maintenance'' means works in relation to the prevention of the formation of ice
and the removal of snow and ice as set out or described in Section 5 of Part 2 of
Schedule 6 [O&M Requirements] and all maintenance works and functions relating
thereto.
''Working Day'' means a day (other than a Saturday or Sunday) on which banks are
open for business in the City of London.
''Works'' means the Permanent Works (including Plant) and the Temporary Works
required in accordance with the Construction Requirements and the Communications
Requirements for the design, construction, testing and completion of the New Road, the
Off-Site Facilities and any works in respect of any De-Trunked Segment, the CPA
Works and all related slip roads, side roads, access roads, bridges and other highway
structures, fences and barriers, drainage systems including outfalls and balancing
ponds, grassed areas, hedges and trees, planted areas, footways, road markings, road
traffic signs, road traffic signals, road lighting, communications installations, the
Monitoring System, embankments and cuttings and archaeological and ecological
works.
1.2
Interpretation
Save to the extent that the context or the express provisions of this Agreement
otherwise require:
1.2.1 headings and sub-headings are for ease of reference only and shall not be taken
into consideration in the interpretation or construction of this Agreement;
1.2.2 all references to Clauses and Schedules are references to Clauses of and
Schedules to this Agreement and all references to Parts, Sections, paragraphs,
Annexes or Appendices are references to Parts, Sections and paragraphs
contained in and Annexes and Appendices to the Schedules;
1.2.3 the Schedules to this Agreement (including any Annexes or Appendices thereto)
are an integral part of this Agreement and reference to this Agreement includes
reference thereto and reference to any Schedule includes reference to any
Annex or Appendix thereto;
1.2.4 all references to any agreement (including, without limitation, this Agreement),
document or other instrument include (subject to all relevant approvals and
any other provision of this Agreement expressly concerning such agreement,
document or other instrument) a reference to that agreement, document or
instrument as amended, supplemented, substituted, novated or assigned;
1.2.5 all references to any statute or statutory provision (including any subordinate
legislation) shall include references to any statute or statutory provision which
amends, extends, consolidates or replaces the same or which has been
amended, extended, consolidated or replaced by the same and shall include any
orders, regulations, codes of practice, instruments or other subordinate
legislation made under the relevant statute;
1.2.6 all references to time of day shall be a reference to whatever time of day shall
be in force in England and Wales;
1.2.7 the words ''herein'', ''hereto'' and ''hereunder'' refer to this Agreement as a whole
and not to the particular Clause, Schedule, Part, Section, paragraph, Annex or
Appendix in which such word may be used;
1.2.8 words importing the singular include the plural and vice versa;
1.2.9 words importing a particular gender include all genders;
1.2.10 ''person'' includes any individual, partnership, firm, trust, body corporate,
government, governmental body, authority, emanation, agency or
instrumentality, unincorporated body of persons or association;
1.2.11 any reference to a public organisation or representative shall be deemed to
include a reference to any successor to such public organisation or
representative or any organisation or entity or representative which has taken
over the functions or responsibilities of such public organisation or
representative provided that this provision shall not operate to limit the
application of Clause 41.1.5;
1.2.12 references to ''Parties'' mean the parties to this Agreement and references to a
''Party'' mean one of the parties to this Agreement;
1.2.13 references to drawings are references to drawings appearing in the Schedules
hereto having the revision numbers set against the relevant drawings numbers
in Part 5 of Schedule 4;
1.2.14 all monetary amounts are expressed in pounds sterling;
1.2.15 references to amounts or sums being expressed in March 2002 prices are
references to amounts or sums which are to be adjusted to reflect the effects of
inflation after that date as measured by changes in the RPI from the level
published in April 2002 for the month of March 2002. At any time, such
adjusted amount or sum, shall be calculated by applying the following
formula:
Rm
=
where:
Rm
=
the actual amount or sum pertaining in
month m;
RMarch 2002
=
the relevant amount or sum expressed in
March 2002 prices;
m
=
the calendar month in respect of which the
March 2002 price comparison is to be
made;
RPIm
=
the RPI published or which is to be
published in month m+1 for the preceding
month m;
RPI March 2002
=
the RPI published in April 2002 for the
month of March 2002, being 174.5;
1.2.16
wherever this Agreement (other than pursuant to Clauses 44.2 [Pre-
Commencement Termination] and 44.3 [Post Commencement
Termination], but without prejudice to Clauses 44.4.1.4 and 44.4.1.11)
obliges the Secretary of State to pay any amount to the DBFO Co
(including, without limitation, pursuant to Schedule 12 [Change] or
Schedule 13 [Additional Works and Subsequent Schemes]) in respect of
any costs, expenses, fees, charges, liabilities, Losses, Claims or other sums
incurred by the DBFO Co:
1.2.16.1 such obligation shall be construed as applying only to so much
of such sums as have been properly incurred on an arm's
length commercial basis or, where not incurred on an arm's
length commercial basis (including where the payment is made
to the Contractor or an Associated Company of the DBFO
Co), so much of them as are proper and reasonable; and
1.2.16.2 the DBFO Co shall, where requested by the Secretary of State,
provide supporting evidence of such costs, expenses, fees,
charges, liabilities, Losses, Claims or other sums;
1.2.17
the Secretary of State shall not be imputed with knowledge of any fact,
matter or thing unless that fact, matter or thing is within the knowledge of
those of the Crown's servants or agents (including the Department's
Nominee) who have responsibilities in connection with the conduct of the
Operations or the Project;
1.2.18
any reference to the statutory duties or functions of the Secretary of State
shall be a reference to such duties or functions (including powers and
discretions) from time to time and shall include any common law duties
and functions (including powers and discretions); and
1.2.19
any reference to ''day'' shall, unless otherwise stated, mean the period of
time which begins with one midnight and ends with the next.
1.3
Language
The language of this Agreement is English. All correspondence, drawings, Design
Data, test reports, certificates, specifications and information shall be entirely in
English.
All operating and maintenance instructions, name and rating plates,
identification labels and other written and printed matter required for the Operations
shall be in English, as shall instructions and notices to the public and staff and all other
signing and information notices.
1.4
Provisions applicable to Existing Road and New Road
Save as otherwise expressly provided, both the provisions of this Agreement applicable
to the Existing Road and the provisions of this Agreement applicable to the New Road
shall apply in respect of any Upgraded Sections, provided that:
1.4.1
save as otherwise expressly provided, in respect of any statement of the
time from which any provision of this Agreement is to apply, Upgraded
Sections shall be treated as part of the Existing Road and not part of the
New Road; and
1.4.2
the DBFO Co shall be relieved from the obligation to perform Routine
Maintenance of any Temporary Construction Area in existence from time
to time (but without prejudice to the obligation to comply with the
Construction Requirements in respect of the operation or maintenance of
such Temporary Construction Area).
2.
DOCUMENTATION
2.1
Ambiguities
In the case of any ambiguity or discrepancy between the provisions in the main body of
this Agreement and those in any Schedule or between the provisions of any Schedules,
the Department's Nominee shall at the request of the DBFO Co state in writing which
provision shall take priority.
2.2
Additional Payments and Time
The DBFO Co shall not be entitled to any additional payment or extension of time
under this Agreement as a result of giving effect to the decision of the Department's
Nominee under Clause 2.1 [Ambiguities] unless the ambiguity or discrepancy is one
which the DBFO Co could not reasonably have been expected (in accordance with
Good Industry Practice) to have identified or foreseen at any time prior to the
execution of this Agreement.
In such event the decision of the Department's Nominee shall be treated as a
Department's Change in accordance with Annex 1 to Part 1 of Schedule 12
[Department's Changes].
3.
THE PROJECT
3.1
Design, Construction, Operation and Maintenance
Subject to and in accordance with the provisions of this Agreement, the DBFO Co
shall:
3.1.1
design, construct, complete, commission and test the Works;
3.1.2
operate and maintain the Project Facilities during the Contract Period from
the O&M Commencement Date;
3.1.3
conduct the other Operations during the Contract Period; and
3.1.4
finance the activities referred to in Clauses 3.1.1 to 3.1.3,
at its own cost and risk without recourse to Government funds (other than as expressly
provided in this Agreement) or to Government guarantees.
3.2
Improvements
The DBFO Co may, if it thinks fit, improve the Project Facilities, subject to and in
accordance with the provisions of this Agreement, including but not limited to Clause
11.4 [DBFO Co's Changes], Clause 14.6 [Maintenance and Other Works], Clause
36.3 [Subsequent Schemes] and Part 3 of Schedule 13 [Subsequent Schemes] and
Clause 36.4 [Improvements] and Part 4 of Schedule 13 [Improvements].
3.3
Public Use
3.3.1
The DBFO Co shall:
3.3.1.1
subject to Clause 15.3 [Lane Closures], keep the Existing
Road open for public use; and
3.3.1.2
from the date of issue of the Permit to Use in respect of
Scheme 1, open and, subject to Clause 15.3 [Lane Closures],
keep open the New Road for public use.
3.3.2
Without prejudice to Clause 28.2 [Primary Duty of Co-ordination], all
Operations shall be carried on so as not to interfere unnecessarily with:
3.3.2.1
the convenience of Users;
3.3.2.2
the convenience of other members of the public; or
3.3.2.3
the access to, use and occupation of public or private roads or
footpaths, footways, cycleways or bridleways whether under
the control or in the possession of the Secretary of State or any
other person.
3.4
Standard of Performance
The DBFO Co shall procure that the Operations are at all times performed:
3.4.1
in a safe manner and in accordance with Good Industry Practice and the
Management System Documentation;
3.4.2
in a manner that is not likely to be injurious to health or to cause damage to
property provided that damage to property located within the Site that is
an inevitable consequence of carrying out the Works which damage cannot
be avoided irrespective of the procedures and working methods adopted
within the Site shall not constitute a breach of this obligation unless, to the
extent that the same should be remedied, it is not remedied by the DBFO
Co as soon as practicable;
3.4.3
in such manner as to enable the Secretary of State to discharge his
statutory duties and his undertakings or objectives set out in the Road
User's Charter and as not to detract from the image and reputation of the
Secretary of State as highway authority;
3.4.4
in compliance with all applicable Legal Requirements;
3.4.5
in compliance with the Core Construction Requirements, the Core O&M
Requirements and the Core Communications Requirements; and
3.4.6
in a manner consistent with the promotion of Sustainable Development.
Provided that:
3.4.6.1
the DBFO Co will only be treated as being in breach of this
Clause 3.4.6 to the extent that any of elements set out in sub-
paragraphs (a) – (d) (inclusive) of the definition of
Sustainable Development are reflected in any of the DBFO
Co's 5 Year Performance Indicators or the DBFO Co's 5 Year
Environmental Performance Indicators and the DBFO Co has
failed to meet any Minimum Performance Levels relating to
such indicator;
3.4.6.2
the exception contained in Clause 3.4.6.1 above shall not
prevent action being taken by or on behalf of the Secretary of
State under any other provision of this Agreement if the
circumstances giving rise to such failure to meet any such
Minimum Performance Level also constitute a breach of some
other provision of this Agreement.
3.5
Core Construction Requirements
3.5.1
In the design, planning and execution of the Works and other works in
connection with the repair, maintenance or improvement of the Project
Facilities, and functions associated with the construction, repair,
maintenance or improvement of the Project Facilities, the DBFO Co shall
take all such action and do all such things (including, without limitation,
organising itself, adopting measures and standards, executing procedures,
including inspection procedures and safety patrols, and engaging and
managing contractors, agents and employees) as will and in such manner
as will:
3.5.1.1
enable the Secretary of State to provide a safe highway in
respect of its condition, use and risks affecting third parties;
3.5.1.2
secure the safety of Users, workers or other persons on the
Project Road or the Adjacent Areas or on land adjacent to
the Project Facilities or using adjoining roads or facilities;
and
3.5.1.3
enable the Secretary of State to fulfil his obligations in
respect of his statutory powers and in respect of
administrative law, common law, European Community law
and human rights;
and, subject to Clauses 3.5.1.1, 3.5.1.2 and 3.5.1.3 above:
3.5.1.4
enable the Secretary of State to provide a level of highway
service to the public not inferior to that provided on the trunk
road and motorway network generally during construction,
repair, maintenance or improvement works, taking account
of Special Events;
3.5.1.5
enable the police, local authorities, and others with statutory
powers in relation to the Project Facilities or adjoining roads
to fulfil their obligations in respect of those statutory powers;
3.5.1.6
discharge the Secretary of State's liabilities in respect of the
undertakings and commitments at Schedule 8 [Third Parties]
or given in the course of obtaining any of the Orders or any
New Order, without creating or incurring any liability that
would subsist beyond the Contract Period;
3.5.1.7
minimise the occurrence and adverse effects of accidents and
ensure that all accidents and emergencies are responded to as
quickly as possible;
3.5.1.8
minimise the risk of damage or disturbance to or destruction
of third party property;
3.5.1.9
ensure that members of the public are treated with all due
courtesy and consideration;
3.5.1.10 provide a safe, clear and informative system of road signs;
3.5.1.11 enable standards of reliability, durability, accessibility,
maintainability, quality control and assurance, and fitness for
purpose appropriate to a highway of the character of the
Project Road to be achieved throughout the Contract Period;
3.5.1.12 enable standards of reliability, durability, accessibility,
maintainability, quality control and assurance, and fitness for
purpose appropriate to facilities of the character of the Off-
Site Facilities to be achieved throughout the Contract
Period.;
3.5.1.13 comply with the Orders and any New Order provided that if
a Department's Change would but for this provision entitle
the DBFO Co to claim that an Eligible Change has occurred
the requirement in this sub-clause to comply with a New
Order will not of itself preclude the DBFO Co from claiming
that an Eligible Change has occurred;
3.5.1.14
meet the environmental objectives detailed in the
Environmental Statement(s), including the achievement of a
high standard in the mitigation of adverse environmental
effects;
3.5.1.15 achieve a high standard in the appearance and aesthetic
quality of the Project Facilities and achieve integration of the
Project Facilities with the character of the surrounding
landscape through both sensitive design and sensitive
management of all visible elements including, without
limitation, those on the Existing Road; and
3.5.1.16 comply with the Scheme Specific Core Construction
Requirements in Part 1 of Schedule 4.
3.5.2
The Monitoring System shall be designed and constructed in such a
manner as will enable the same to comply with the Core Construction
Requirements.
3.6
Core O&M Requirements
In the design, planning and execution of all works and functions associated with the
operation and maintenance of the Project Facilities, the DBFO Co shall take all such
action and do all such things (including, without limitation, organising itself, adopting
measures and standards, executing procedures, including inspection procedures and
safety patrols, and engaging and managing contractors, agents and employees) as will
and in such manner as will:
3.6.1
enable the Secretary of State to provide a safe highway in respect of its
condition, use and risks affecting third parties;
3.6.2
secure the safety of Users, workers or other persons on the Project Road or
the Adjacent Areas or on land adjacent to the Project Facilities or using
adjoining roads or facilities; and
3.6.3
enable the Secretary of State to fulfil his obligations in respect of his
statutory powers and in respect of administrative law, common law,
European Community law and human rights;
and, subject to Clauses 3.6.1, 3.6.2 and 3.6.3:
3.6.4
enable the Secretary of State to provide a level of highway service to the
public not inferior to that provided on the trunk road and motorway
network generally, taking account of Special Events;
3.6.5
enable the police, local authorities, and others with statutory powers in
relation to the Project Facilities or adjoining roads to fulfil their
obligations in respect of those statutory powers;
3.6.6
discharge the Secretary of State's liabilities in respect of the undertakings
and commitments at Schedule 8 [Third Parties] or given in the course of
obtaining any of the Orders or any New Order are discharged, without
creating or incurring any liability that would subsist beyond the Contract
Period;
3.6.7
ensure that all accidents and emergencies are responded to as quickly as
possible and their adverse effects minimised;
3.6.8
minimise the risk of damage or disturbance to or destruction of third party
property;
3.6.9
ensure that members of the public are treated with all due courtesy and
consideration;
3.6.10
ensure that Users are given adequate information and forewarning of any
events on or any matters affecting the Project Road so as to enable them to
minimise any adverse consequences on them of those events or matters;
3.6.11
ensure that the Project Road is operated and maintained to no lesser
standard than is appropriate for a highway of the character of the Project
Road and for use by the traffic which is reasonably to be expected to use
the Project Road;
3.6.12
ensure that the Off-Site Facilities are operated and maintained to no lesser
standard than is appropriate for facilities of the character of the Off-Site
Facilities;
3.6.13
minimise the risk of adverse effects on the environment and on the amenity
enjoyed by the owners and occupiers of land adjacent to the Project
Facilities and to adjoining roads and facilities;
3.6.14
ensure that members of the public and others are given adequate
opportunity to bring to the attention of the DBFO Co any matters affecting
the ability of the DBFO Co to meet the Core O&M Requirements;
3.6.15
ensure that traffic data and data relating to the operation and maintenance
of the Project Facilities and events on the Project Road are collected and
disseminated such that the Secretary of State and other persons or bodies
with statutory powers in relation to the Project Facilities or adjoining
roads are better able to perform their obligations in respect of those
statutory powers;
3.6.16
ensure that the Project Facilities are operated and maintained in accordance
with the Core Construction Requirements; and
3.6.17
comply with the Scheme Specific Core O&M Requirements identified in
Part 1 of Schedule 6.
3.7
Core Communications Requirements
In the design, supply, installation, testing, commissioning, operation, maintenance,
repair and/or improvement of the Monitoring System and functions in connection
therewith, the DBFO Co shall take all such action and do all such things (including,
without limitation, organising itself, adopting measures and standards, executing
procedures, including inspection procedures, and engaging and managing contractors,
agents and employees) as will and in such manner as will:
3.7.1
enable the Secretary of State to provide a safe highway in respect of its
condition, use and risks affecting third parties;
3.7.2
secure the safety of Users, workers or other persons on the Project Road or
the Adjacent Areas or on land adjacent to the Project Facilities or using
adjoining roads or facilities; and
3.7.3
enable the Secretary of State to fulfil his obligations in respect of his
statutory powers and in respect of administrative law, common law,
European Community law and human rights;
and, subject to Clauses 3.7.1, 3.7.2 and 3.7.3 above:
3.7.4
enable the Secretary of State to provide a level of highway service to the
public not inferior to that provided on the trunk road and motorway
network generally during installation, testing, commissioning,
maintenance, repair or improvement works, taking account of Special
Events;
3.7.5
enable the police, local authorities and others with statutory powers in
relation to the Project Facilities or adjoining roads to fulfil their
obligations in respect of those statutory powers;
3.7.6
discharge the Secretary of State's liabilities in respect of the undertakings
and commitments at Schedule 8 [Third Parties] or given in the course of
obtaining any of the Orders or any New Order, without creating or
incurring any liability that would subsist beyond the Contract Period;
3.7.7
minimise the occurrence and adverse effects of accidents and ensure that all
accidents and emergencies are responded to as quickly as possible;
3.7.8
minimise the risk of damage or disturbance to or destruction of third party
property;
3.7.9
ensure that members of the public are treated with all due courtesy and
consideration;
3.7.10
provide a safe, clear and informative system of road signs;
3.7.11
enable standards of reliability, durability, accessibility, maintainability,
quality control and assurance, and fitness for purpose appropriate to a
highway of the character of the Project Road to be achieved throughout the
Contract Period;
3.7.12
enable standards of reliability, durability, accessibility, maintainability,
quality control and assurance, and fitness for purpose appropriate to
facilities of the character of the Off-Site Facilities to be achieved
throughout the Contract Period;
3.7.13
comply with the Orders and any New Order;
3.7.14
meet the environmental objectives detailed in the Environmental
Statements(s), including the achievement of a high standard in the
mitigation of adverse environmental effects;
3.7.15
achieve a high standard in the appearance and aesthetic quality of the
Project Facilities and achieve integration of the Project Facilities with the
character of the surrounding landscape through both sensitive design and
sensitive management of all visible elements including, without limitation,
those on the Existing Road;
3.7.16
ensure that traffic data and data relating to the operation and maintenance
of the Project Facilities and events on the Project Road are collected and
disseminated such that the Secretary of State and other persons or bodies
with statutory powers in relation to the Project Facilities or adjoining
roads are better able to perform their obligations in respect of those
statutory powers;
3.7.17
ensure that the Project Road is operated and maintained to no lesser
standard than is appropriate for a highway of the character of the Project
Road and for use by the traffic which is reasonably to be expected to use
the Project Road;
3.7.18
ensure that members of the public and others are given adequate
opportunity to bring to the attention of the DBFO Co any matters affecting
the ability of the DBFO Co to meet the Core Communications
Requirements; and
3.7.19
in the case of the Monitoring System, ensure compliance with the Scheme
Specific Core Monitoring System Requirements in Part 1 of Schedule 17
[Scheme Specific Core Monitoring System Requirements].
3.8
Discrimination
The DBFO Co shall not, and confirms that it will procure that the Contractor,
Designer and Operator shall not, unlawfully discriminate on the grounds of colour, sex,
religion, political opinion or nationality and in particular but without limitation the
DBFO Co, the Contractor, the Designer and the Operator shall not discriminate on the
grounds of nationality in the selection of sub-contractors.
PART II
OPERATIONS
6.
PRE-COMMENCEMENT PERIOD
6.1
Site Inspection
Without limitation to any other provision of this Agreement (including, without
limitation, Clause 38.2.2), the DBFO Co shall be deemed prior to executing this
Agreement to have, and warrants that it has:
6.1.1
inspected and examined to its satisfaction the Site and the Adjacent Areas
and their surroundings and, where applicable, any existing structures or
works on, over or under the Site and the Adjacent Areas;
6.1.2
satisfied itself as to the nature of the climatic, hydrological, ecological,
environmental and general conditions of the Site and the Adjacent Areas,
the nature of the ground and subsoil, the form and nature of the Site and
the Adjacent Areas, the risk of injury or damage to property adjacent to or
affecting the Site and the Adjacent Areas, and to occupiers of such
property, the nature of the materials (whether natural or otherwise) to be
excavated, and the nature of the design, work, Plant and materials
necessary for the execution of the Operations;
6.1.3
satisfied itself as to:
6.1.3.1
the means of communication with and access to and through
the Site and the Adjacent Areas, the accommodation it may
require and the adequacy of the rights of access set out in
Clause 8.1 [Access for DBFO Co] for those purposes; and
6.1.3.2
the possibility of interference by persons (other than the
Secretary of State and other than persons claiming rights or
title through, under or paramount to the Secretary of State)
with access to or use of the Site and the Adjacent Areas, with
particular regard to the Requirements of Interested Parties;
6.1.3.3
the precautions and times and methods of working necessary to
prevent any nuisance or interference, whether public or
private, being caused to any third parties; and
6.1.3.4
the risks of interference by Protestors or others trespassing on
the Site and the Adjacent Areas;
6.1.4
thoroughly examined, checked and satisfied itself as to the adequacy,
correctness and suitability of all Design Data made available to the DBFO
Co by the Secretary of State prior to execution of this Agreement and
which the DBFO Co has adopted or made use of in the Construction
Requirements, the Communications Requirements or the O&M
Requirements or which the DBFO Co intends to adopt or make use of;
6.1.5
conducted its own analysis and review of the other materials, documents
and data referred to in Clause 38.2.1 which bear on any of the matters
referred to in Clauses 6.1.1, 6.1.2 and 6.1.3; and
6.1.6
generally obtained for itself all necessary information as to:
6.1.6.1
the risks, contingencies and all other circumstances which may
influence or affect the Construction Requirements, the
Communications Requirements and the O&M Requirements
and its obligation to carry out the Operations; and
6.1.6.2
any other factors which would affect its decision to enter into
this Agreement or the terms on which it would do so.
The provisions of any Sub-Clause of this Clause 6.1 [Site Inspection] shall be without
limitation to the provisions of any other Sub-Clause of this Clause 6.1 [Site Inspection]
provided that, without prejudice to the DBFO Co's obligations under this Agreement,
the warranty given in this Sub-Clause 6.1 shall not constitute an actionable warranty
by the DBFO Co in favour of the Secretary of State but the Secretary of State may
rely on it for the purpose of defending or contesting any action brought against him.
6.2
Investigations and Surveys
6.2.1
The DBFO Co shall promptly notify the Department's Nominee in
accordance with the Review Procedure of any Investigation (other than
those set out in Part 1 of Schedule 21 [Investigations and Surveys]) which
it is intending to carry out during the Pre-Commencement Period.
6.2.2
During the Pre-Commencement Period the DBFO Co may carry out any
Investigation which is set out in Part 1 of Schedule 21 [Investigations and
Surveys] or which has been so notified to the Department's Nominee
pursuant to Clause 6.2.1, provided that:
6.2.2.1
prior to commencing any such Investigation the DBFO Co
shall have provided to the Department's Nominee such
evidence as the Department's Nominee may reasonably require
that the insurance specified in Clause 20.1.1.1 has been
effected; and
6.2.2.2
subject to Clause 6.5 the DBFO Co shall only be entitled to
recover the costs of any such Investigation in accordance with
Clause 44.2 if such Investigation is set out in Part 1 of
Schedule 21 [Investigations and Surveys] or there has been no
objection to the notice of such Investigation in accordance
with the Review Procedure (the right to such objection being
in the absolute discretion of the Department's Nominee).
6.2.3
Not used.
6.2.4
The DBFO Co shall promptly furnish the Department's Nominee with
copies of all information, records and test results (including any
interpretation of such test results) resulting from the Investigations
referred to in Clause 6.2.2.
6.3
Other Preparatory Works
During the Pre-Commencement Period the DBFO Co may mobilise such resources and
carry out such further design and other works (other than works subject to Clause 6.2
[Investigations and Surveys] or Clause 6.4 [Works by Relevant Authorities]) as are set
out in Part 2 of Schedule 21 [Other Preparatory Works] or as shall be appropriate
having regard to the expected Commencement Date (based on the information referred
to in Clause 7.4 [Estimated Commencement Date]) provided that:
6.3.1
the DBFO Co shall have provided to the Department's Nominee such
evidence as the Department's Nominee may reasonably require that any
insurance specified in Clause 20.1.1.1 has been effected;
6.3.2
subject to Clause 6.5 the DBFO Co shall only be entitled to recover the
costs of any such activities in accordance with Clause 44.2 if such
activities are set out in Part 2 of Schedule 21 [Other Preparatory Works]
or there has been no objection to the notice of such activities in accordance
with the Review Procedure (the right of such objection being in the
absolute discretion of the Department's Nominee); and
6.3.3
this Clause 6.3 [Other Preparatory Works] shall not authorise the doing of
any thing which would affect the physical integrity of the Site or the
Adjacent Areas unless the works and their effect are set out in Part 2 of
Schedule 21 [Other Preparatory Works] or have been consented to by the
Secretary of State in his absolute discretion.
6.4
Works by Relevant Authorities
6.4.1
Works which the DBFO Co wishes during the Pre-Commencement Period
to have carried out by any Relevant Authority (including without
limitation any Statutory Undertaker) are set out in Part 3 of Schedule 21
[Works by Relevant Authorities].
6.4.2
If the DBFO Co wishes during the Pre-Commencement Period to have
additional works carried out by any Relevant Authority (including without
limitation any Statutory Undertaker), then, the DBFO Co shall give notice
of such intended works to the Department's Nominee under the Review
Procedure.
6.4.3
The Secretary of State will either procure the works described in Clause
6.4.1 or Clause 6.4.2 or will instruct the DBFO Co that subject to Clause
28.5.3 it is to manage such works by carrying out such of the services set
out in Parts 2 and 3 of Schedule 19 as may be relevant to such works,
provided that:
6.4.3.1
the works are set out in Part 3 of Schedule 21 [Works by
Relevant Authorities]; or
6.4.3.2
if the works are not set out in Part 3 of Schedule 21 [Works by
Relevant Authorities], there has been no objection to such
works in accordance with the Review Procedure,
and, in either case, the DBFO Co shall have provided to the Department's
Nominee such evidence as the Department's Nominee may reasonably
require that any insurance specified in Clause 20.1.1.1 has been effected.
6.4.4
The Department's Nominee shall not be entitled to object to the works set
out in Part 3 of Schedule 21 [Works by Relevant Authorities]. The
Department's Nominee shall only be entitled to object to the works
described in a notice given pursuant to Clause 6.4.2 on the grounds set out
in paragraph 3.3 of Part 2 of Schedule 7 [Review Procedure].
6.4.5
The DBFO Co shall not agree to any variation to the terms of the
agreements under which the works described in Clause 6.4.1 and Clause
6.4.2 are to be executed which would, if such varied term had originally
been contained in such agreement:
6.4.5.1
in respect of the works set out in Part 3 of Schedule 21 [Works
by Relevant Authorities], have materially influenced the
decision of the Secretary of State to accept the terms of Part 3
of Schedule 21 [Works by Relevant Authorities]; or
6.4.5.2
in respect of the works described in Clause 6.4.2, have entitled
the Department's Nominee to withhold or defer consent
pursuant to Clause 6.4.4 provided that if, in his absolute
discretion, the Secretary of State consents to such a variation
then that variation shall be treated as if it had been submitted
to the Review Procedure by the DBFO Co and no objection
has been raised thereto by the Department's Nominee.
6.4.6
The DBFO Co shall bear the cost of the carrying out of the works
described in Clause 6.4.1 and Clause 6.4.2.
6.4.7
The DBFO Co shall be entitled to recover, in accordance with Clause 44.2
on the occurrence of the circumstances envisaged by such Clause, the
costs of the works set out in Part 3 of Schedule 21 [Works by Relevant
Authorities] and any works carried out in accordance with Clause 6.4.2 to
which there has been no objection in accordance with the Review
Procedure.
6.5
Authorised Expenditure
6.5.1
Notwithstanding Clauses 6.2.2.2, 6.3.2 and 6.4.7, where an agreed value
for the carrying out of Investigations pursuant to and in accordance with
Clause 6.2 [Investigations and Surveys], design or other works pursuant to
and in accordance with Clause 6.3 [Other Preparatory Works] or works by
Relevant Authorities pursuant to and in accordance with Clause 6.4
[Works by Relevant Authorities] (together the "Pre-Commencement
Activities") is set out in Part 4 of Schedule 21 [Pre-Commencement
Activities], such agreed value shall (where such Pre-Commencement
Activity has been completed prior to the Termination Date) be the amount
recoverable by the DBFO Co as Pre-Commencement Costs pursuant to
Clause 44.2 [Pre-Commencement Termination] in relation to the relevant
Pre-Commencement Activity.
6.5.2
Where a Pre-Commencement Activity is partially completed on the
Termination Date, the amount recoverable by the DBFO Co as Pre-
Commencement Costs pursuant to Clause 44.2 [Pre-Commencement
Termination] with respect to such Pre-Commencement Activity shall be an
amount equal to a fair and reasonable proportion of the amount set out in
Part 4 of Schedule 21 [Pre-Commencement Activities] with respect to such
Pre-Commencement Activity taking into account the extent to which such
Pre-Commencement Activity was completed on the Termination Date.
7.
COMMENCEMENT
7.1
Conditions to Commencement
The following shall be conditions to the issue of the Commencement Certificate:
7.1.1
the Secretary of State having received from the DBFO Co notice
confirming:
7.1.1.1
that all conditions (other than conditions relating to the issue of
the Commencement Certificate) to the availability under the
Funding Agreements of the funds for initial drawdown
required by the DBFO Co for all Operations have been
satisfied or waived; and
7.1.1.2
that 49,999 Ordinary Shares have been unconditionally
allotted to Holdco fully paid up in cash,
accompanied in each case by such evidence thereof as may reasonably be
required by the Secretary of State;
7.1.2
the Secretary of State having received the Performance Guarantee referred
to in Clause 4.1 [Performance Guarantee];
7.1.3
the Secretary of State having received such evidence as he may reasonably
require that the Liaison Procedures referred to in Clause 14.5.1
[Emergencies and Liaison] have been developed and agreed with each of
the persons referred to in paragraph 1 of Part 2 of Schedule 16
[Operations, Emergencies and Traffic Management];
7.1.4
the Secretary of State having received such evidence as he may reasonably
require that adequate procedures have been agreed between the DBFO Co
and "Interoute JV" (comprising Mott MacDonald Ltd and Raynesway
Construction Southern Ltd) for the transfer of the operation and
maintenance of the Existing Road to the DBFO Co with effect from the
O&M Commencement Date and that the DBFO Co is ready to commence
operation and maintenance of the Existing Road with effect from the
O&M Commencement Date;
7.1.5
the Department's Nominee having received such evidence as he may
reasonably require of compliance with Clause 20 [Insurance];
7.1.6
there being no Dispute which remains the subject of the Disputes
Resolution Procedure the resolution of which may give rise to the
premature termination of this Agreement; and
7.1.7
the undertakings referred to in Clause 20.6.6 having been received by the
Secretary of State in terms satisfactory to the Secretary of State.
7.2
Satisfaction of Conditions
The DBFO Co shall use its reasonable endeavours to procure the satisfaction of the
conditions referred to in Clauses 7.1.1, 7.1.2, 7.1.3, 7.1.4, 7.1.5 and 7.1.7 [Conditions
to Commencement] as soon as practicable after the date of execution of this Agreement
and in any event shall procure their satisfaction prior to 1st March 2004.
7.3
Commencement Certificate
7.3.1
The Secretary of State shall (subject to the conditions referred to in Clause
7.1 [Conditions to Commencement] remaining satisfied) issue the
Commencement Certificate no later than 5 Working Days after the date on
which all the conditions referred to in Clause 7.1 [Conditions to
Commencement] have been satisfied.
7.3.2
The Commencement Certificate shall state the Commencement Date, which
shall be the date being the later of:
7.3.2.1
28 days from the date of issue of the Commencement
Certificate; and
7.3.2.2
1 June 2004.
7.4
Estimated Commencement Date
Prior to the issue of the Commencement Certificate, the DBFO Co shall keep the
Secretary of State advised by notice of its estimate of the date for satisfaction of each
of the conditions referred to in Clause 7.1 [Conditions to Commencement] (other than
Clause 7.1.6) including in any such notice reasonable detail of the circumstances taken
into account in making such estimate, provided that any such notice shall be for
information and planning purposes only and shall not be binding on the DBFO Co for
any purpose.
8.
LAND
8.1
Access for DBFO Co
Subject to the conditions set out in Clause 7.1 [Conditions to Commencement] having
been satisfied at the date of issue of the Commencement Certificate and subject to the
provisions of Clauses 8.2 [Duration], 8.3 [Limitations], 8.5 [Off-Site Works] and 10
[Security of the Site], the Secretary of State shall make available to the DBFO Co for
the periods referred to in Clause 8.2 [Duration] access to so much of the Site and the
Adjacent Areas (including, for the avoidance of doubt, any land conveyed to the
Secretary of State pursuant to Clause 8.6.2) as shall be required from time to time for
the carrying out of the relevant part of the Operations, in each case subject to:
8.1.1
any rights of public passage or access existing over any part of the Site or
the Adjacent Areas from time to time;
8.1.2
the right of any Relevant Authority under any Law or Legal Requirement
to have access to the Site or the Adjacent Areas but subject to the
provisions of Clause 14.4.2;
8.1.3
the right of Users to use the Project Road or of the public to use any Local
Authority Road or other highway;
8.1.4
the rights of access referred to in Clause 14.4.1;
8.1.5
the right of any relevant highway authority to have access for the execution
on or near the Site or the Adjacent Areas of any work in fulfilling any
function of such highway authority under any Law;
8.1.6
the terms and conditions of any Rights in respect of land comprising the
Site and the Adjacent Areas;
8.1.7
the provisions of Clause 10 [Security of the Site] and Schedule 22
[Security of the Site]; and
8.1.8
in the case of any land conveyed to the Secretary of State pursuant to
Clause 8.6.2 any Encumbrances affecting such land as at the date of such
conveyance.
8.1A Access for DBFO Co during the Pre-Commencement Period
Notwithstanding but without prejudice to the provisions of Clauses 8.1 and 8.2 to 8.3.2
(inclusive), the Secretary of State shall make available to the DBFO Co during the Pre-
Commencement Period access to so much of the Site (other than the Occupied Property
(until such date as the Secretary of State secures its vacant possession) and the
Existing Road) as the DBFO Co may reasonably require for the purpose of carrying
out the Investigations referred to in Clause 6.2.2 and any other works that the DBFO
Co is permitted to carry out pursuant to Clauses 6.3 and 6.4 and for no other purpose
in each case subject to:
8.1A.1
the Department's Nominee having previously received such evidence as he
may reasonably require of compliance with Clause 20 [Insurance] in
relation to the insurances required to be provided pursuant to paragraph 1
of Part 1 of Schedule 10 (other than paragraph 1.2) and to such insurances
remaining in full force and effect;
8.1A.2
any rights of public passage or access existing over any part of the Site or
from time to time;
8.1A.3
the right of any Relevant Authority under any Law or Legal Requirement to
have access to the Site but subject to the provisions of Clause 14.4.2;
8.1A.4
the right of Users to use the Project Road or of the public to use any Local
Authority Road or other highway;
8.1A.5
the rights of access referred to in Clause 14.4.1;
8.1A.6
the right of any relevant highway authority to have access for the execution
on or near the Site of any work in fulfilling any function of such highway
authority under any Law;
8.1A.7
the terms and conditions of any Rights in respect of land comprising the
Site;
8.1A.8
the provisions of Clause 10 [Security of the Site] and Schedule 22 [Security
of the Site]; and
8.1A.9
in the case of any land conveyed to the Secretary of State pursuant to
Clause 8.6.2 any Encumbrances affecting such land as at the date of such
conveyance.
Any access given by the Secretary of State under this Clause 8.1A shall be by way of
licence for the particular activity only and shall not grant or be deemed to grant any
legal estate or other interest in land. For the avoidance of doubt, the Secretary of State
shall have no obligation to procure access to any land outside of the Site or to the
Existing Road or (until such date as the Secretary of State secures its vacant
possession) to the Occupied Property.
8.2
Duration
Subject to Clauses 8.3 [Limitations] and 43.1 [Step-In Rights], the commencement and
duration of the rights of access given under Clause 8.1 [Access for DBFO Co] shall be
as follows:
8.2.1
in respect of the Site, from the Commencement Date and thereafter until the
end of the Contract Period or, in respect of any part of the Site comprising
a De-Trunked Segment, the date on which the DBFO Co ceases to be
responsible for the operation and maintenance thereof in accordance with
Clause 13.3.5 (save to the extent necessary to perform the obligations set
out in Clause 13.3.5.3);
8.2.2
in respect of the Temporary Adjacent Areas, from the later of the
Commencement Date and the date on which access is required in respect
of the relevant part of the Temporary Adjacent Areas under the DBFO
Co's Programme and thereafter until a Taking Over Certificate is issued in
respect of the Local Facilities on the relevant part of the Temporary
Adjacent Areas in accordance with Clause 13.3 [Local Facilities and De-
Trunked Segments]; and
8.2.3
in respect of the Adjacent Areas, from the later of the Commencement Date
and the date on which access is required in respect of the relevant part of
the Adjacent Areas under the DBFO Co's Programme and thereafter until
the end of the Contract Period.
8.2.4
in respect of land transferred pursuant to Clause 8.6.2, from the date that
such land is transferred to the Secretary of State in accordance with such
Clause and thereafter until the end of the Contract Period.
8.3
Limitations
8.3.1
The rights of access referred to in Clause 8.1 [Access for DBFO Co] shall
subsist for the purposes of carrying out the Operations and for no other
purposes. Any access given under Clause 8.1 [Access for DBFO Co]
shall be by way of licence for the relevant part of the Operations only and
shall not grant or be deemed to grant any legal estate or other interest in
land.
8.3.2
Without prejudice to the generality of Clause 8.3.1, where land or Rights in
respect of land forming part of the Site or the Adjacent Areas has been
acquired:
8.3.2.1
by compulsory purchase order for landscaping or any other
specified purpose; or
8.3.2.2
subject to any restriction relating to the use of such land for
landscaping or any other specified purpose,
such land shall not be used by the DBFO Co otherwise than for activities
which are necessary for the achievement of such landscaping or such other
specified purpose, and the right of access granted by the Secretary of State
in respect of such land shall be limited accordingly.
8.4
Additional Access
8.4.1
Any request by the DBFO Co that the Secretary of State exercise in respect
of any land outside the Site and the Adjacent Areas any power of entry
under any Law (to the extent that the exercise of such power of entry is
necessary to enable the DBFO Co to perform its obligations under this
Agreement) shall be dealt with in accordance with Clause 27 [Statutory
Powers], and the DBFO Co shall bear all costs and charges in respect of
and any Loss or Claims arising from such entry.
8.4.2
Save as provided in Clauses 8.4.1, 8.4.4, 8.4.5 and 8.4.6, the DBFO Co
shall procure, and shall bear all costs and charges in respect of and any
Loss or Claims arising from, any access to any land required additional to
that required to be provided by the Secretary of State pursuant to Clause
8.1 [Access for DBFO Co].
8.4.3
If requested by the Secretary of State the DBFO Co will be responsible for
preparing and negotiating for approval and signature by the Secretary of
State agreements made pursuant to Section 4 of the Highways Act 1980
necessary to carry out Operations associated with the Project Facilities
and to enable the DBFO Co to fulfil its obligations under this Agreement.
8.4.4
If, notwithstanding that the DBFO Co has used its reasonable endeavours
to secure such access, the DBFO Co is unable to perform its obligations
under this Agreement to maintain those bridges over Network Rail's
railway (other than the Bridge (as defined in the Network Rail
Agreement)) forming part of the Project Facilities solely because it is
unable to secure reasonable access over land ("Network Rail Access
Land") which is either in Network Rail's ownership or in respect of which
Network Rail has a legal interest entitling it (without the requirement for
the consent of a third party) to grant such reasonable access rights to the
DBFO Co then the DBFO Co shall not be treated as being in breach of
such maintenance obligations in relation to those bridges for so long as
and to the extent that it is unable to secure reasonable access over the
Network Rail Access Land to do so.
8.4.5
If the DBFO Co is unable to obtain access:
8.4.5.1
over third party land to maintain the 450mm outfall pipe
referred to in Annex 3/1 of Section 3 of Part 2 of Schedule 6,
as it crosses a field before reaching the stream; or
8.4.5.2
over third party land to maintain approx. 200m of
Environmental Barrier on the North Eastern side of the
approach road to Wormdale Hill Overbridge; or
8.4.5.3
to a linear soakaway and connecting pipe referred to in Annex
3/1 of Section 3 of Part 2 of Schedule 6
and in any such case the Secretary of State has the benefit of rights of
access over such land which rights it is entitled to make available to the
DBFO Co (but not otherwise) the Secretary of State shall, upon request by
the DBFO Co, make available such rights of access for the benefit of the
DBFO Co.
8.4.6
If the DBFO Co requires access over a public highway in the ownership of
the local authority and the local authority prevents the DBFO Co from
gaining access to the Project Road to carry out its maintenance obligations
then, provided that:
8.4.6.1
the local authority has not taken such action because it objects
to the DBFO Co's proposed methods of working; and
8.4.6.2
the DBFO Co has complied with the relevant Liaison
Procedures; and
8.4.6.3
it is not possible to carry out such maintenance in any other
way that is consistent with Good Industry Practice,
the DBFO Co shall not be treated as being in breach of the relevant
maintenance obligations for so long as and to the extent that it is thereby
prevented from complying with such obligations.
8.5
Off-Site Works
Subject to Clause 10.1.2, to the extent that the Works are required to be carried out on
land or highways in the control or ownership of a highway authority other than the
Secretary of State and such highway authority has not given to the DBFO Co access to
areas required to carry out the Off-Site Works, then and during any such period:
8.5.1
the DBFO Co shall not be required to carry out the Off-Site Works relating
to such area; and
8.5.2
the Secretary of State shall not be required to make available to the DBFO
Co access to such area.
8.6
Acquisition of Land by the DBFO Co
8.6.1
The DBFO Co shall not acquire any land or any Rights in respect of any
land required for or for the support of the Project Facilities without the
prior consent of the Secretary of State.
8.6.2
Without prejudice to Clause 8.6.1 or paragraph 2.4.6(d) of Part 3 of
Schedule 13 [Subsequent Schemes], the freehold interest in any land
together with any Rights in respect of land acquired by the DBFO Co
which is acquired for the Project Facilities shall, upon request by the
Secretary of State, be conveyed to the Secretary of State free of charge
and without any Encumbrances which would impede the Secretary of
State's performance of his highway functions provided that upon
completion of such a transfer the Secretary of State will grant the DBFO
Co a licence of such land pursuant to Clause 8.1 subject to the matters
specified in Clauses 8.1.1 to 8.1.8 (inclusive).
8.6.3
As soon as practicable, the DBFO Co shall acquire the unencumbered
freehold interest in the land shown coloured blue (in this Clause 8.6
referred to as the "Blue Land") on drawing number
60062/SG/2600/035RWA in Part 7 of Schedule 3 [Drawings] and
forthwith upon acquiring the same shall, as beneficial owner, transfer such
interest to the Secretary of State in accordance with Clause 8.6.2.
8.6.4
The DBFO Co shall upon request by the Secretary of State cease the
construction of the bridge pier to be constructed on the Blue Land if before
it has acquired the Blue Land the owner of such land indicates that it is
unwilling to transfer the same.
8.6.5
For the avoidance of doubt:
8.6.5.1
the Secretary of State shall have no obligations to the DBFO
Co in respect of the Blue Land pursuant to any of Clauses
8.1, 8.1A or 8.5.1;
8.6.5.2
the DBFO Co shall not be entitled to relief under Clause 8.5.1
if the DBFO Co fails to acquire the Blue Land; and
8.6.5.3
the provisions of Clause 27 shall not apply in relation to the
Blue Land.
8.7
Observance by DBFO Co
The DBFO Co shall observe and comply with the terms and conditions of any Rights
in respect of land relating to the Site and the Adjacent Areas.
8.8
Boundaries of Site and Adjacent Areas
8.8.1
The Parties acknowledge that the boundaries (both vertical and horizontal)
of the Site and Adjacent Areas, as they relate to the New Road and as
reflected on drawings numbered A249/03/02-001 to 004 (inclusive) set out
in Part 7 of Schedule 3 [Drawings], have been set by reference to the
preliminary design of the New Road as shown in the Construction
Requirements on the date of execution of this Agreement.
8.8.2
Within 90 days after issuance of the Completion Certificate, the DBFO Co
shall by notice to the Secretary of State specify any area of land falling
within the boundaries of the Site and Adjacent Areas as referred to in
Clause 8.8.1 which is not required for the Project. The Secretary of State
shall be entitled in his absolute discretion (as between the Secretary of
State and the DBFO Co) to return any such area of land to the person who
owned it prior to its acquisition by the Secretary of State (or the
successors in interest of such person).
8.8.3
If the Secretary of State exercises the right referred to in Clause 8.8.2 in
respect of any area of land, then such area of land shall be excluded from
the definition of the Site or the Adjacent Areas as the case may be, with
effect from the effective date of such exercise. The Parties shall use their
reasonable endeavours to agree any revisions to drawings numbered
A249/03/02-001 to 004 (inclusive) set out in Part 7 of Schedule 3
necessary to reflect such exclusion and if they are unable to reach
agreement within 90 days of the effective date of such exercise then either
Party may refer the Dispute for resolution under the Disputes Resolution
Procedure.
8.8.4
For the avoidance of doubt, if and so long as the Secretary of State does
not exercise the right referred to in Clause 8.8.2 in respect of any such
area of land, then such area shall remain part of the Site or the Adjacent
Areas as the case may be, and the DBFO Co shall remain subject to the
terms of this Agreement in respect of such area of land.
8.9
Disposal of Materials Won on Site
The DBFO Co may only excavate, extract, dispose of, exploit or otherwise deal with
any materials, including without limitation any soil, aggregates, rocks, coal, minerals
or other deposits, excavated, arising or produced in connection with the carrying out of
the Operations on the Site or any Adjacent Areas (together ''Site Materials''):
8.9.1
if and to the extent that the Secretary of State has the right to do so by Law
or pursuant to the terms of any agreement or compulsory purchase order;
8.9.2
if and to the extent that, in the case of excavation or extraction of Site
Materials, such excavation or extraction is necessary for the purpose of
constructing the New Road in accordance with the Construction
Requirements;
8.9.3
subject to the rights of any third party, whether being rights in or to the
Site Materials, Rights in respect of land or otherwise; and
8.9.4
subject to any limitation, restriction or condition, whether pursuant to any
Law or otherwise, applying to or affecting the right of the Secretary of
State to undertake any such excavation, extraction, disposal, exploitation
or other dealing.
8.10 Land Acquisition
8.10.1 Subject to Clause 8.11.1 and without prejudice to Clauses 8.11.2 and 8.12, the
DBFO Co shall, on the terms set out in Schedule 24, take all steps and carry
out all activities and works necessary to:
8.10.1.1
enable the Secretary of State's duties with respect to a Claim
of a Compensation Party or an Injurious Affection Party to be
properly, promptly and fully satisfied and/or procure that the
Secretary of State's duties with respect to a Claim of
Compensation Party or an Injurious Affection Party are
properly, promptly and fully satisfied;
8.10.1.2
enable the Secretary of State, having taken into account all
material considerations, freely and timeously to exercise all
discretions, powers and rights with respect to a Claim of a
Compensation Party or an Injurious Affection Party;
8.10.1.3
enable the Secretary of State to act properly in respect of the
human rights of any Compensation Party or Injurious
Affection Party;
8.10.1.4
minimise any Claim and any associated Losses of a
Compensation Party or an Injurious Affection Party.
8.10.2 Nothing in this Clause 8.10, 8.11, 8.12 or Schedule 24 shall authorise or be
deemed to authorise the DBFO Co to, and the DBFO Co shall not, at any time
act in a manner which would amount to or suggest any:
8.10.2.1
delegation of the statutory duties or functions of the Secretary
of State; or
8.10.2.2
fetter on the discretion of the Secretary of State.
8.10.3 Nothing in this Clause 8.10, 8.11 8.12 or Schedule 24 shall derogate from or
limit (or be deemed to derogate from or limit) the ability or obligation of the
Secretary of State to exercise all discretions, powers and rights conferred on
him or require (or be deemed to require) the Secretary of State to act other
than in accordance with the relevant Legal Requirements and in a manner
appropriate to the Secretary of State or highway authority.
8.10.4 Save as may be otherwise expressly provided in this Clause 8.10, 8.11, 8.12 or
Schedule 24, the DBFO Co shall not negotiate with, express any opinion to or
otherwise make any representation to any person in relation to any Claim or
any associated Losses of a Compensation Party or an Injurious Affection
Party
8.11 Claims of Compensation Parties
8.11.1 Save to the extent provided in Part 1 of Schedule 24, the Secretary of State
shall be responsible for dealing with and negotiating any Claims made by any
Compensation Party.
8.11.2 The DBFO Co shall:
8.11.2.1
take all steps necessary to minimise any Claims made by any
Compensation Party and any associated Losses;
8.11.2.2
provide the Secretary of State with all administrative and other
support and liaison associated with the handling of such
Claims required by the Secretary of State and without
prejudice to the generality of the foregoing will provide all
necessary information, calculations, plans, drawings,
sketches, photographs, evidence and other material required
by the Secretary of State in connection with his
responsibilities in relation to the subject matter of such
Claims;
8.11.2.3
immediately provide to the Secretary of State any notices,
statements, proofs or other documents sent to it or as part of,
or in connection within any such Claim and immediately
notify him of any fact or issue relevant to the consideration or
negotiation of such Claim and any associated Losses; and
8.11.2.4
carry out the CPA Works in accordance with and on the terms
set out in Part 1 of Schedule 24, provided that:
8.11.2.4.1
with respect to any Specified CPA Works, the
DBFO Co shall carry out such works at its
own cost and expense; and
8.11.2.4.2
with respect to any Unspecified CPA Works,
the Secretary of State shall pay to the DBFO
Co an amount equal to the cost of such works
as certified in accordance with paragraph
1.4.4 (as applicable) of Part 1 of Schedule 24
within 30 days of receiving a relevant invoice
after completion of the relevant Unspecified
CPA Works to the reasonable satisfaction of
the Secretary of State and the relevant
Compensation Party.
8.12 Claims of Injurious Affection Parties
The DBFO Co shall be responsible at its own cost and expense for negotiating and
paying on behalf of the Secretary of State all Claims made by any Injurious Affection
Party in accordance with and on the terms set out in Part 2 of Schedule 24.
9.
PARTNERING
9.1
The Secretary of State and the DBFO Co shall deal fairly, in good faith and in mutual
co-operation with one another and with Interested Parties.
9.2
The Secretary of State and the DBFO Co shall each take the respective steps necessary
to establish and maintain the Network Board. Such steps shall include the following:
9.2.1 the Secretary of State shall appoint and keep appointed two representatives of
the Secretary of State to the Network Board, such representatives to be the
Project Sponsor (or a nominee of the Project Sponsor having equivalent
authority to the Project Sponsor) and the Area Manager (or a nominee of the
Area Manager having equivalent authority to the Area Manager);
9.2.2 the Secretary of State shall appoint and use reasonable endeavours to keep
appointed to the Network Board a Partnering Facilitator who shall have been
nominated by the Network Board from a list of partnering facilitators provided
by the Secretary of State, provided that in the absence of consensus on the part
of the members of the Network Board with regard to such nomination the
Secretary of State shall nominate the Partnering Facilitator; and
9.2.3 the DBFO Co shall appoint and keep appointed two representatives to the
Network Board, such representatives to be the DBFO Co's Representative (or a
nominee of the DBFO Co's Representative having equivalent authority to the
DBFO Co's Representative) and a director of the DBFO Co nominated for
such purpose by the DBFO Co (or a nominee of such director having
equivalent authority).
9.3
The appointments referred to in Clause 9.2 shall be made within 21 days of the date of
this Agreement. If at any time either Party wishes to replace a representative then the
consent of the other Party shall first be obtained, such consent not to be unreasonably
withheld.
9.4
The objectives and terms of reference of the Network Board are set out in Schedule 23
[The Network Board].
9.5
The Network Board may co-opt other parties to attend meetings and/or to provide such
information and assistance as the Network Board may from time to time require.
9.6
The Network Board shall meet within 28 days of the date of this Agreement and
thereafter every three months or more frequently as the members of the Network Board
may agree.
9.7
Decisions of the Network Board shall become binding on the Parties to this Agreement
only by way of an amendment to this Agreement signed by the duly authorised
representatives of the Secretary of State and the DBFO Co.
9.8
The DBFO Co's representatives on the Network Board shall, when required to do so by
the Department's Nominee, attend meetings of any Area Network Board.
10.
SECURITY OF THE SITE
10.1 Responsibility for Protestors and Trespassers
10.1.1 The Secretary of State shall not be responsible for the presence on or around or
entry onto or around the Site or Adjacent Areas of, or any other interference
with or affecting the Site or Adjacent Areas or the vicinity of them or the
Operations by or caused by, any Protestor or Trespasser nor for any act,
omission or default of any such person (in any such case whether before or
during the Pre-Commencement Period or the Contract Period). The presence
on or around or entry onto or around the Site or Adjacent Areas of, or any
other interference with or affecting the Site or Adjacent Areas or the vicinity of
them or the Operations by or caused by, any Protestor or Trespasser and any
lawful or unlawful activities of any such person shall not be a breach of the
obligations of the Secretary of State under Clause 6 [Pre-Commencement
Period] or Clause 8 [Land] to make available to the DBFO Co access to the
Site and the Adjacent Areas, nor a breach of any other obligation or warranty
of the Secretary of State under this Agreement.
10.1.2 Save as mentioned in the proviso hereto the DBFO Co shall not be relieved by
Clause 8.5 [Off-Site Works] of any requirement to carry out Off-Site Works if
the failure referred to in that Clause of the relevant highway authority (not
being the Secretary of State) to give to the DBFO Co access to areas required
to carry out the relevant Off-Site Works is the result of the presence on or
around or entry onto or around the relevant areas of, or any other interference
with or affecting the Site or Adjacent Areas or the vicinity of them or the
Operations by or caused by, any Protestor or Trespasser or any lawful or
unlawful activities of any such person (in any such case whether before or
during the Pre-Commencement Period or the Contract Period) provided that if
the relevant highway authority (not being the Secretary of State) has refused to
give the DBFO Co access to the Adjacent Areas because of the presence on or
around the Adjacent Areas of any Protestor or Trespasser then provided that
the DBFO Co has done everything that this Agreement requires it to do to
remove such Protestor or Trespasser and notwithstanding the taking of such
action it has failed to remove them then for so long as it is unable to gain such
access to the Adjacent Areas the DBFO Co shall not be treated as being in
breach of its obligation to carry out so much of the Off-Site Works as it is
thereby prevented from carrying out by virtue of the highway authority's
refusal to provide such access.
10.2 DBFO Co to Bear Loss
10.2.1 As between the Secretary of State and the DBFO Co, the DBFO Co shall bear,
without recourse to the Secretary of State:
10.2.1.1
any Loss suffered by the DBFO Co, its agents,
contractors or sub-contractors of any tier or employees of any
of them which is caused by any Protestor or Trespasser,
including without limitation any damage to property, any
personal injury or death, and any loss of income (including
without limitation any reduction in DBFO Payments); and
10.2.1.2
any Loss suffered by the Secretary of State which is
caused by any Protestor or Trespasser, including without
limitation any damage to property, any personal injury or
death, and any loss of income, to the extent that such Loss
arises either:
10.2.1.2.1 directly in relation to the Project Facilities; or
10.2.1.2.2 as a result of any measures taken by or on behalf
of or at the direction of the DBFO Co; or
10.2.1.2.3 as a result of the failure by the DBFO Co to take
or cause to be taken measures which should
have been taken.
10.2.2 For the avoidance of doubt, nothing in Clause 10.2.1 shall affect:
10.2.2.1
any right of the Secretary of State to make or recover any
Claim against any Protestor or Trespasser for damage
suffered by the Secretary of State, his agents or contractors
(other than the DBFO Co) or sub-contractors of any tier or
any employees of any of them, or
10.2.2.2
any right of the DBFO Co to make or recover any Claim
against any Protestor or Trespasser for damage suffered by
the DBFO Co, its agents, contractors or sub-contractors of
any tier or any employees of any of them.
10.3 No Payments to Protestors
The DBFO Co shall not give nor permit nor suffer to be given to any Protestor or
Trespasser any inducement, monetary or otherwise, with a view to avoiding, limiting or
influencing the manner of protest activities by that Protestor or Trespasser or by other
Protestors or Trespassers.
10.4 Measures to Deal with Protestors and Trespassers
The provisions of Schedule 22 [Security of the Site] shall apply.
11.
DESIGN AND CONSTRUCTION
11.1 Responsibility
The DBFO Co shall be responsible for the design, construction, completion,
commissioning and testing of the Works, which shall be carried out in strict
accordance with the Construction Requirements and (subject to Schedule 17
[Communications]) the Communications Requirements, the Design and Certification
Procedure and the Review Procedure and in such manner as to procure satisfaction of
the Core Construction Requirements and the Core Communications Requirements.
11.2 Design and Certification Procedure
11.2.1 The DBFO Co shall procure that:
11.2.1.1 the Designer shall prepare or supervise the preparation of all Design
Data in respect of the Works (including, without limitation, the
Detailed Design) in accordance with the Construction Requirements
and the Communications Requirements and shall comply with the
Design and Certification Procedure;
11.2.1.2 without prejudice to Clause 11.2.1.1:
11.2.1.2.1 where, in accordance with paragraph 4 of Part 3 of
Schedule 4 [Design and Certification Procedure]
Design Data is prepared by the Contractor, the Traffic
Signal System Designer or the Monitoring System
Contractor, the Contractor, the Traffic Signal System
Designer or the Monitoring System Contractor shall
prepare such Design Data in accordance with the
Construction Requirements and the Communications
Requirements and shall comply with the Design and
Certification Procedure;
11.2.1.2.2 the Archaeologist shall prepare, in accordance with the
Construction Requirements, all Design Data permitted
by paragraph 11 of Part 3 of Schedule 4 [Design and
Certification Procedure] to be prepared by it and shall
comply with the Design and Certification Procedure;
11.2.1.2.3 the Landscape Architect shall prepare, in accordance
with the Construction Requirements, all Design Data
permitted by paragraph 11 of Part 3 of Schedule 4
[Design and Certification Procedure] to be prepared by
it and shall comply with the Design and Certification
Procedure; and
11.2.1.2.4 the Ecologist shall prepare, in accordance with the
Construction Requirements, all Design Data permitted
by paragraph 11 of Part 3 of Schedule 4 [Design and
Certification Procedure] to be prepared by it and shall
comply with the Design and Certification Procedure.
11.2.2
The DBFO Co shall procure that the certification procedures referred to in
the Design and Certification Procedure are complied with by the
appropriate persons referred to therein, including but not limited to the
Design Team, the Designer and any independent team or engineer within
the Designer, as the case may be, and that such persons are at all relevant
times duly authorised to carry out such procedures and to sign the relevant
Certificates.
11.2.3
The DBFO Co shall procure that the checking procedures referred to in the
Design and Certification Procedure are complied with by the appropriate
persons referred to therein, including but not limited to the Checking
Team, the Checker, the Traffic Signal System Certifier, the Audit Team
and any independent team or engineer within the Designer, as the case may
be, and that such persons are at all relevant times duly appointed to carry
out such procedures.
11.2.4
Without limitation to Clause 51.3 [DBFO Co Responsibility], any failure
by any person referred to in the Design and Certification Procedure,
including but not limited to the Design Team, the Designer, the Checking
Team, the Checker, the Traffic Signal System Certifier, the Traffic Signal
System Designer, the Audit Team, the Testing Contractor, the
Archaeologist, the Landscape Architect, the Environmental Manager, the
Ecologist, the Monitoring System Contractor, the Contractor and any
independent team or engineer within the Designer, to fulfil the obligations
required of them under the Design and Certification Procedure shall be a
breach of the DBFO Co's obligations under this Agreement.
11.2.5
Design Data the subject of a Certificate which has been submitted to the
Department's Nominee in accordance with the Design and Certification
Procedure shall not be departed from otherwise than pursuant to a DBFO
Co's Change or a Department's Change.
11.3 Review Procedure
11.3.1
The DBFO Co shall not commence or permit the commencement of
construction of any part of the Works until there has been no objection
under the Review Procedure to all Design Data and all relevant
Certificates required in respect of such part of the Works. Relevant
Certificates shall include, without limitation, Design Certificates,
Archaeology Certificates, Ecology Certificates, Landscaping Certificates,
Check Certificates and Traffic Management Certificates as appropriate
under the Design and Certification Procedure. If the DBFO Co notifies
the Department's Nominee that it disputes comments made by the
Department's Nominee pursuant to the Review Procedure and/or the
withholding by the Department's Nominee of any Certificate required for
the relevant Works, the DBFO Co shall following such notification be
entitled to proceed with such Works at its own risk pending the resolution
of such Dispute (whether or not under the Disputes Resolution Procedure)
unless the Department's Nominee notifies the DBFO Co that (in his
absolute discretion on the grounds of safety or as a result of a breach or
potential breach of statutory duty on the part of the Secretary of State or
any other person) the DBFO Co must not so proceed and in such
circumstances the DBFO Co shall not so proceed with such works. If it is
determined in the Disputes Resolution Procedure that the comments made
in the Review Procedure and/or withholding by the Department's Nominee
of any Certificate (as the case may be) were justified, the DBFO Co shall
take all necessary steps to implement the decision of the Disputes
Resolution Procedure, including (as necessary) removing and redoing
relevant Works.
11.3.2
The DBFO Co shall not commence or permit the commencement of
construction or implementation of any Temporary Works for which a
Temporary Works Check Certificate is required under the provisions of
Part 3 of Schedule 4 [Design and Certification Procedure] until there has
been no objection under the Review Procedure to that Certificate and the
relevant Design Data. If the DBFO Co notifies the Department's Nominee
that it disputes comments made by the Department's Nominee pursuant to
the Review Procedure and/or the withholding by the Department's
Nominee of any Certificate required for the relevant works, the DBFO Co
shall following such notification be entitled to proceed with such works at
its own risk pending the resolution of such Dispute (whether or not under
the Disputes Resolution Procedure) unless the Department's Nominee
notifies the DBFO Co that (in his absolute discretion on the grounds of
safety or as a result of a breach or a potential breach of statutory duty on
the part of the Secretary of State or any other person) the DBFO Co must
not so proceed and in such circumstances the DBFO Co shall not so
proceed with such work. If it is determined in the Disputes Resolution
Procedure that the comments made in the Review Procedure and/or
withholding by the Department's Nominee of any Certificate (as the case
may be) were justified, the DBFO Co shall take all necessary steps to
implement the decision of the Disputes Resolution Procedure, including (as
necessary) removing and redoing relevant Works.
11.4 DBFO Co's Changes
11.4.1
If the DBFO Co proposes to vary or amend the design, quality or quantity
of the Works after the date hereof, including making additions, omissions,
substitutions, alterations in design and/or variations in or to the
Construction Requirements, or the Communications Requirements, such
proposal, together with all supporting Design Data and an explanation of
the reasons for the proposed change (including, if appropriate the
Designer's comments), shall be submitted in accordance with the Review
Procedure as a proposed DBFO Co's Change. The DBFO Co shall not
proceed to implement a proposed DBFO Co's Change unless and until
there has been no objection in accordance with the Review Procedure (on
the grounds set out in paragraph 3.3 of Part 2 of Schedule 7 [Review
Procedure]) and the relevant DBFO Co's Change Certificate has been
issued by the Designer and duly countersigned by the Department's
Nominee in accordance with paragraph 7 of Part 2 of Schedule 7 [Review
Procedure].
11.4.2
If the DBFO Co becomes aware that any element of the Construction
Requirements does not comply with and satisfy the Core Construction
Requirements or that any element of the Communications Requirements
does not comply with and satisfy the Core Communications Requirements,
the DBFO Co shall so notify the Department's Nominee and, as soon as
reasonably practicable, and in any event within 30 days of becoming
aware of such matter, the DBFO Co shall propose (in accordance with
Clause 11.4.1) a DBFO Co's Change to amend the Construction
Requirements or the Communications Requirements (as the case may be)
so that they comply with and satisfy the Core Construction Requirements
or the Core Communications Requirements (as the case may be).
11.5 Breaches
11.5.1
In the event that the DBFO Co becomes aware of a breach of any of
Clauses 11.1 [Responsibility] to 11.4 [DBFO Co's Changes] (both
inclusive), the DBFO Co shall:
11.5.1.1 forthwith notify the Department's Nominee of the fact of such
breach and the subject matter thereof; and
11.5.1.2 as soon as reasonably practicable make a submission in respect
of such breach to the Review Procedure, including in such
submission:
11.5.1.2.1
a full statement of the circumstances in which
such breach took place together with a full
explanation of the reasons for such breach
and, if appropriate, for any delay in providing
notification under Clause 11.5.1.1;
11.5.1.2.2
a full statement of the measures, if any, which
the DBFO Co proposes to adopt in order to
rectify such breach and/or to preclude or
mitigate the consequences thereof (if any);
and
11.5.1.2.3
if such breach relates to a variation in the
design, quality or quantity of the Works, an
application for a DBFO Co's Change.
11.5.2
The Department's Nominee shall deal with a submission pursuant to Clause
11.5.1 above as soon as reasonably practicable (but without being subject
to any specific time limit). The Department's Nominee shall be entitled to
raise comments in respect of such a submission in its absolute discretion,
but in deciding upon the appropriate response to such submission, the
Department's Nominee shall have regard to all the circumstances,
including, without limitation:
11.5.2.1 whether the breach is inadvertent on the part of the DBFO Co
or the Contractor or any person referred to in Clause 11.2.4;
11.5.2.2 whether there has been culpable delay in making the relevant
notification under Clause 11.5.1.1 or submission under Clause
11.5.1.2;
11.5.2.3 whether similar breaches occurred previously and, if so, the
gravity of such breaches and the measures, if any, adopted by
the DBFO Co to prevent their re-occurrence,
provided that in the circumstances set out in Clause 11.5.1 the
Department's Nominee shall not comment upon a certificate issued by the
Designer or by the Checker accompanying such a submission unless such
submission related to a DBFO Co's Change for which a DBFO Co's
Change Certificate has not previously been issued.
11.6
Department's Design Data
Save as expressly provided in this Agreement, the DBFO Co shall not seek to recover
from the Secretary of State, his servants or agents and shall indemnify the Secretary of
State and his servants and agents against any Loss or Claim which may arise from the
adoption, use or application by or on behalf of the DBFO Co, the Designer, the
Checker, the Contractor, the Operator, the Testing Contractor, the Archaeologist, the
Landscape Architect, the Environmental Manager, the Ecologist, the Surveyor, the
TRACS Contractor, the Monitoring System Contractor, the Monitoring System
Verification Contractor, the Traffic Signal Installation Contractor, the Traffic Signal
Maintenance Contractor, the Traffic Signal System Certifier, the Traffic Signal
System Designer or any other person for whom the DBFO Co is responsible in the
design, construction, testing, operation and maintenance of the Project Facilities of any
Design Data and other data and documents made available to it or its representatives in
connection with the Project by or on behalf of the Secretary of State whether before or
after the execution of this Agreement.
11.7 Site Safety and Security
The DBFO Co shall, throughout the progress of the Works, have full regard for the
safety of all persons on the Site or the Adjacent Areas (whether lawfully or not) and
shall keep the Site, the Adjacent Areas and the Works in an orderly state appropriate to
the avoidance of danger to such persons. Without limitation to Clause 10 [Security of
the Site] or Clause 30.3 [Conduct of Claims against Third Parties] or Schedule 22
[Security of the Site], the DBFO Co shall take such measures as are reasonably
required to prevent the trespass onto the Site or the Adjacent Areas of any persons or
livestock not entitled to be there including, without limitation, fencing of the Site and
the Adjacent Areas where appropriate.
11.8 Health and Safety
11.8.1
In this Clause 11.8 [Health and Safety]:
11.8.1.1 ''the Regulations'' means the Construction (Design and
Management) Regulations 1994 (1994 S.I. 3140) (and
''Regulation'' shall be construed accordingly); and
11.8.1.2 ''the client'' and ''the Executive'' have the same meanings as in
the Regulations.
11.8.2
Within 7 days of the date of execution of this Agreement the DBFO Co
shall make and serve on the Executive a declaration pursuant to and in the
form (if any) required by Regulation 4 that the DBFO Co will act as the
client in relation to the Operations for all the purposes of the Regulations
save on termination of this Agreement provided that on such termination
the DBFO Co shall procure that a copy of the up to date health and safety
file is handed to the Department's Nominee. The DBFO Co shall forthwith
send a copy of the declaration to the Department's Nominee and upon
receipt of notice from the Executive that it has received the declaration the
DBFO Co shall send a copy of such notice to the Department's Nominee.
The DBFO Co shall not and shall not seek to withdraw, terminate or in
any manner derogate from its declaration that it will act as, and its
acceptance of its responsibilities as, the client for all the purposes of the
Regulations.
11.8.3
The DBFO Co shall observe, perform and discharge and shall procure the
observance, performance and discharge of:
11.8.3.1 all the obligations, requirements and duties arising under the
Regulations in connection with the Operations; and
11.8.3.2 any code of practice for the time being approved by the Health
and Safety Commission pursuant to the Health and Safety at
Work etc. Act 1974 in connection with the Regulations.
11.9 Access and Facilities for Department's Nominee
Without limitation to Clause 14.4 [Access], the DBFO Co shall procure that:
11.9.1
subject to complying with all relevant safety procedures, the Department's
Nominee shall have unrestricted access at all reasonable times to any site
or workshop where materials are being manufactured for the Works for
the purposes of general inspection and of attending any test or
investigation being carried out in respect of the Works;
11.9.2
the Department's Nominee shall have the right to attend monthly Site and
other similar progress meetings; and
11.9.3
there are kept on Site one copy of all drawings for construction and of all
specifications, and that the same shall, at all reasonable times, be available
for inspection and use by the Department's Nominee and by any other
person authorised by the Department's Nominee.
11.10 Licensing of Goods Vehicles
Each goods vehicle used by the DBFO Co or the Contractor or any sub-contractor in
connection with the Operations shall display the vehicle licence disc relevant in the
Goods Operator's licence under which the vehicle is operated or, in the absence of an
Operator's licence disc, the vehicle shall carry documentation giving the operator's
licence number, name and address.
11.11 Noise Insulation Requirements
The DBFO Co shall comply with the provisions of Part 6 of Schedule 4 [Noise
Insulation Requirements].
12.
PROGRAMME
12.1 DBFO Co's Programme
The DBFO Co's Programme sets out the timetable in which the DBFO Co intends to
carry out the investigations, design, construction, commissioning, testing, maintenance
and related works appearing in the Construction Requirements and the
Communications Requirements.
12.2 Variations to DBFO Co's Programme
Should it appear to the Department's Nominee or the DBFO Co at any time that the
actual or likely progress of the Works does not or will not conform with the DBFO
Co's Programme then, within 28 days of being so required by the Department's
Nominee or (if earlier) becoming aware of the same, the DBFO Co shall:
12.2.1
submit to the Department's Nominee a report identifying the reasons for
such non-conformity; and
12.2.2
submit to the Department's Nominee, in accordance with the Review
Procedure, a revised DBFO Co's Programme, which shall provide for the
Works to be pursued diligently in such manner as to achieve completion of
the Works as soon as practicable and provide for the Works to be
commenced and pursued diligently in accordance with Clause 12.5
[Achievement of Completion].
The Department's Nominee shall be entitled to raise comments in respect of the revised
DBFO Co's Programme only on the grounds set out in paragraph 3.4 of Part 2 of
Schedule 7 [Review Procedure].
12.3 Preparation of DBFO Co's Works Programme
12.3.1
The DBFO Co shall procure the preparation of:
12.3.1.1 an initial DBFO Co's Works Programme, which shall be in all
respects consistent with the DBFO Co's Programme, and shall
submit to the Department's Nominee, in accordance with the
Review Procedure, a copy of the same within 28 days of the
date of execution of this Agreement;
12.3.1.2 a revised version of the DBFO Co's Works Programme
prepared in accordance with Clause 12.3.1.1 in respect of
each revised DBFO Co's Programme submitted in accordance
with Clause 12.2 [Variations to DBFO Co's Programme],
which shall be in all respects consistent with such DBFO Co's
Programme, and shall submit to the Department's Nominee, in
accordance with the Review Procedure, a copy of each such
revised DBFO Co's Works Programme at the same time as
the revised DBFO Co's Programme is submitted in accordance
with Clause 12.2 [Variations to DBFO Co's Programme].
12.3.2
If the DBFO Co wishes to make any amendment to any DBFO Co's Works
Programme or should it appear to the Department's Nominee or the DBFO
Co at any time that the actual or likely progress of the Works does not or
will not conform with the relevant DBFO Co's Works Programme then,
prior to making any such amendment or within 28 days of being so
required by the Department's Nominee or (if earlier) becoming aware of
such non-conformity, the DBFO Co shall:
12.3.2.1 submit to the Department's Nominee a report identifying the
reasons for such amendment or non-conformity; and
12.3.2.2 submit to the Department's Nominee, in accordance with the
Review Procedure, a revised version of the DBFO Co's Works
Programme, which shall be in all respects consistent with the
DBFO Co's Programme.
12.3.3
The Department's Nominee shall be entitled to raise comments in respect of
the initial DBFO Co's Works Programme or any revised DBFO Co's
Works Programme only on the grounds set out in paragraph 3.4 of Part 2
of Schedule 7 [Review Procedure].
12.3.4
Subject to Clause 12.4 [DBFO Co's Works Programme], the DBFO Co's
Works Programme shall be provided for the information of the Secretary
of State and the Department's Nominee. In the event of any conflict
between the DBFO Co's Programme and any DBFO Co's Works
Programme, the DBFO Co's Programme shall (unless otherwise agreed by
the Secretary of State) prevail.
12.4 DBFO Co's Works Programme
The initial DBFO Co's Works Programme and any revised DBFO Co's Works
Programme submitted in accordance with Clause 12.3 [Preparation of DBFO Co's
Works Programme] shall:
12.4.1
be in accordance with Good Industry Practice;
12.4.2
in all respects be consistent with the DBFO Co's Programme;
12.4.3
satisfy the requirements of Part 2 of Schedule 2 [Submission Requirements
for DBFO Co's Programme and DBFO Co's Works Programme];
12.4.4
without prejudice to Clause 12.4.3, be in sufficient detail so as to enable
the Department's Nominee to resource itself appropriately; and
12.4.5
provide for the Works to be commenced and pursued in accordance with
Clause 12.5 [Achievement of Completion].
12.5 Achievement of Completion
Subject always to Clause 11.3 [Review Procedure], the DBFO Co shall commence the
Works, promptly following the Commencement Date, and shall thereafter diligently
pursue the Works with a view to procuring that they are completed in accordance with
the DBFO Co's Programme to such standard as would require the issue of the
Completion Certificate provided that for the avoidance of doubt failure by the DBFO
Co strictly to comply with the DBFO Co's Programme will not automatically constitute
a failure diligently to pursue the Works (the occurrence of which shall be determined
on the facts) but any such failure may be taken into account in determining whether
such a failure has occurred.
12.6 Delay
12.6.1
Without prejudice to Clauses 12.2 [Variations to DBFO Co's Programme]
and 12.3 [Preparation of DBFO Co's Works Programme], the DBFO Co
shall give notice to the Department's Nominee as soon as it can foresee an
event occurring which will cause material delay to:
(a) completion of the Works by the date set out in the DBFO Co's
Programme for such completion; and/or
(b) completion of so much of the Works as are required to be completed
in order to achieve the issue of the Permit to Use in respect of
Scheme 2
or, if the same is not foreseeable, as soon as it shall become aware of such
event but in any case within 7 days of such event becoming apparent to the
DBFO Co or, if earlier, of the date upon which the same ought reasonably
to have become apparent to the DBFO Co. Thereafter but in any event not
later than 21 days after such notification the DBFO Co shall give further
written details to the Department's Nominee, which shall include:
12.6.1.1 details of the circumstances from which the delay arises;
12.6.1.2 details of the contemporary records which the DBFO Co will
maintain to substantiate such delay;
12.6.1.3 details of the consequences, whether direct or indirect, which
such delay may have on completion of the Works; and
12.6.1.4 details of any measures which the DBFO Co proposes to adopt
to mitigate the consequences of such delay.
12.6.2
The DBFO Co shall, following notification of any event pursuant to Clause
12.6.1:
12.6.2.1 provide such further written information of which it becomes
aware or as the Department's Nominee may reasonably
require regarding the nature and likely duration of such event;
12.6.2.2 afford the Department's Nominee reasonable facilities for
investigating the effect on the DBFO Co or the DBFO Co's
Programme of such event including on-site inspection; and
12.6.2.3 take all reasonable steps consistent with Good Industry
Practice to minimise the delay to:
12.6.2.3.1
completion of the Works; and/or
12.6.2.3.2
completion of so much of the Works as are
required to be completed in order to achieve
the issue of the Permit to Use in respect of
Scheme 2.
12.6.3
If the DBFO Co has failed to comply with the requirements as to the giving
of notice under Clause 12.6.1, then the Department's Nominee may require
the DBFO Co to submit details of the reasons for such failure. If the
Department's Nominee has not stated that he is satisfied with the reasons
given within 28 days of their receipt, the DBFO Co may refer the matter
for resolution under the Disputes Resolution Procedure. If the decision of
the Disputes Resolution Procedure is that the failure is not excusable, then
the period of such delay shall not at any time be taken into account if the
DBFO Co is entitled to any additional payment in any of the
circumstances referred to in Clause 12.6.5.
12.6.4 The Department's Nominee will be entitled, after receipt of written details
under Clause 12.6.1 or of further particulars under Clause 12.6.2, by
notice in writing to require the DBFO Co to provide such further
supporting particulars as he may reasonably consider necessary.
12.6.5
Where the DBFO Co may have a claim for additional payment as a result
of:
12.6.5.1 an event of Eligible Force Majeure, the provisions of Clause
37.4 [Consequences of Force Majeure] shall have effect;
12.6.5.2 a Department's Change, the provisions of Annex 1 to Part 1 of
Schedule 12 [Department's Change] shall have effect; or
12.6.5.3 a Compensation Event, the provisions of Annex 3 to Part 1 of
Schedule 12 [Compensation Events] shall have effect.
For the avoidance of doubt, the DBFO Co shall have no claim against the
Secretary of State for any additional payment as a result of any delay
which is not an event referred to in Clauses 12.6.5.1, 12.6.5.2 or 12.6.5.3
above.
12.6.6
Where the DBFO Co is entitled to any additional payment as a result of an
event of Eligible Force Majeure, a Department's Change or a
Compensation Event, then subject to:
12.6.6.1 the DBFO Co complying with the requirements of Clause
12.6.1 in respect of any such notice or its failure to do so
having been found to be excusable pursuant to Clause 12.6.3;
12.6.6.2 the DBFO Co putting forward proposals pursuant to Clause
12.6.1.4 as to the measures which it intends to adopt in order
to mitigate the consequences of any delay to completion of the
Works and/or the completion of so much of the Works as are
required to be completed in order to achieve the issue of the
Permit to Use in respect of Scheme 2 (as applicable) by the
dates set out in the DBFO Co's Programme for such
completion and issue of the Permit to Use in respect of
Scheme 2 respectively; and
12.6.6.3 such delay being material,
the Department's Nominee shall, as soon as reasonably practicable, notify
the DBFO Co (either prospectively or retrospectively) of his determination
of the period of the delay (if any) to each of:
(a)
completion of so much of the Works as are required to be
completed in order to achieve the issue of the Permit to Use in
respect of Scheme 2 by the date set out in the DBFO Co's
Works Programme for such completion (the "PTU2 Delay
Period"); and
(b)
completion of the Works by the date set out in the DBFO Co's
Works Programme for such completion (the "Completion Date
Delay Period'')
which has arisen or will arise as a consequence of the relevant event of
Eligible Force Majeure, Department's Change or Compensation Event (as
the case may be). If the Department's Nominee determines that no PTU2
Delay Period or Completion Date Delay Period (as the case may be) has
arisen or will arise or the DBFO Co considers the PTU2 Delay Period or
Completion Date Delay Period (as the case may be) so determined to be
insufficient, then the DBFO Co shall be entitled to refer the matter to the
Disputes Resolution Procedure.
12.6.7
In determining the period of any delay for the purposes of any of Clauses
12.6.5.1, 12.6.5.2 and 12.6.5.3 there shall be taken into account, inter alia:
12.6.7.1 whether (and if so to what extent), as a consequence of the
failure of the DBFO Co to conduct the Operations in
accordance with this Agreement at all times prior to the
occurrence of the event giving rise to the delay, the impact of
the event on the timing of the completion (or in the case of the
Permit to Use for Scheme 2 partial completion) of the Works
is greater than it would otherwise have been; and
12.6.7.2 (without prejudice to Clause 12.6.2.3) the extent to which the
delay or impediment ought reasonably to be or to have been
mitigated by the DBFO Co by the taking of reasonable steps
after its occurrence.
12.6.8
The only purpose of the PTU2 Delay Period and the Completion Date
Delay Period (as the case may be) shall be to determine any additional
payment pursuant to Clauses 12.6.5.1, 12.6.5.2 and 12.6.5.3 and provided
that, for the avoidance of doubt there shall be no double counting in the
application of such periods in making any such determination.
13.
INSPECTION AND COMPLETION
13.1 Permit to Use
13.1.1
Not later than 20 Working Days and not earlier than 25 Working Days
prior to the date upon which the DBFO Co expects the Works will be
completed to such extent that the New Road or any Part of the New Road
shall be suitable and safe for use by members of the public without traffic
management restrictions, the DBFO Co shall issue to the Department's
Nominee a notice to that effect, which shall identify all of the works which
the DBFO Co anticipates will be required during that period to bring the
New Road or any Part of the New Road up to such standard. The
Department's Nominee shall as soon as reasonably practicable and in any
event within 10 Working Days of receipt of such notice commence an
inspection of the New Road or any Part of the New Road.
13.1.2
The Department's Nominee shall as soon as reasonably practicable and in
any event within 10 Working Days of the commencement of such
inspection either:
13.1.2.1 confirm in writing that he will, subject to Clause 13.1.4.2 and
to the satisfactory completion of the works referred to in the
notice given by the DBFO Co pursuant to Clause 13.1.1,
issue a Permit to Use in respect of the New Road or any Part
of the New Road; or
13.1.2.2 notify the DBFO Co in writing that he would not issue a Permit
to Use in respect of the New Road or any Part of the New
Road upon completion of the works referred to in the notice
given by the DBFO Co pursuant to Clause 13.1.1 and state
the reasons for such decision, in which case the notice referred
to in Clause 13.1.1 shall cease to have any effect.
13.1.3
Following the confirmation by the Department's Nominee under Clause
13.1.2.1 and the DBFO Co completing the whole of the Works or
completing the Works to such extent that the New Road or any Part of the
New Road shall be suitable and safe for use by members of the public
without traffic management restrictions the DBFO Co shall issue to the
Department's Nominee a notice to that effect together with a DBFO Co's
Substantial Completion Certificate in accordance with paragraph 32 of
Section A of Part 3 of Schedule 4 [Design and Certification Procedure].
The Department's Nominee shall as soon as reasonably practicable and in
any event within 2 Working Days of the later of the receipt of such notice
and of the DBFO Co's Substantial Completion Certificate in accordance
with paragraph 32 of Section A of Part 3 of Schedule 4 [Design and
Certification Procedure] commence an inspection of the New Road.
13.1.4
The Department's Nominee shall, within 3 Working Days of the
commencement of such inspection referred to in Clause 13.1.3 either:
13.1.4.1 issue a Permit to Use, whereupon:
13.1.4.1.1 in the case of the Permit to Use for Scheme 1, the
New Road shall, as soon as practicable, be made
available for public use without traffic
management restrictions; and
13.1.4.1.2 in the case of the Permit to Use for Scheme 2, the
Monitoring Equipment shall be brought into
operation; or
13.1.4.2 notify the DBFO Co, in writing, of his decision not to issue a
Permit to Use and state the reasons for such decision (which
shall not be limited by any reasons stated in the notice given
by the Department's Nominee pursuant to Clause 13.1.2).
13.1.5
The Department's Nominee may refuse to issue the confirmation referred to
in Clause 13.1.2.1 or a Permit to Use:
13.1.5.1 with respect to Scheme 1 if:
13.1.5.1.1 the New Road or the relevant Part of the New
Road (in the case of the confirmation referred to
in Clause 13.1.2.1) will not have or (in the case
of the Permit to Use) has not, been completed to
such extent as to be suitable and safe for use by
members of the public without traffic
management restrictions;
13.1.5.1.2 the Department's Nominee believes, on reasonable
grounds, that any lane or any part of any lane of
the New Road or the relevant Part of the New
Road will be closed at any time in the next 12
months in order to complete the Works to the
standard required for the Completion Certificate;
13.1.5.1.3 there has been and continues to be material non-
compliance with the Design and Certification
Procedure and that non- compliance is still
material at the date that the certificate would
otherwise be issued;
13.1.5.1.4 satisfactory evidence of compliance with Clause
20.1.1.3.2 [Insurance Cover] has not been
adduced;
13.1.5.1.5 the orders and notices referred to in Part 7 of
Schedule 4 have not been made or are not in force
and such failure is wholly or partly due to the
failure of the DBFO Co to comply with its
obligations set out in Part 7 of Schedule 4;
13.1.5.1.6 the Maintenance Works as described in paragraph
4 of Part 1 of Schedule 6 has not been completed;
13.1.5.1.7 if all noise barriers forming part of the relevant
part of the Works have not been constructed in
accordance with the Construction Requirements;
13.1.5.1.8 if the requirements of paragraph 1.19 of Annex
10/C to Part 2 of Schedule 4 have not been
complied with;
13.1.5.2 with respect to Scheme 2 if:
13.1.5.2.1
the Department's Nominee believes, on
reasonable grounds, that any lane or any part
of any lane of the New Road or the relevant
Part of the New Road will be closed at any
time in the next 12 months in order to
complete the Works to the standard required
for the Completion Certificate;
13.1.5.2.2
there has been and continues to be material
non-compliance with the Design and
Certification Procedure and that non
compliance is still material at the date that the
certificate would otherwise be issued;
13.1.5.2.3
satisfactory evidence of compliance with
Clause 20.1.1.3.2 [Insurance Cover] has not
been adduced;
13.1.5.2.4
the Permit to Use in respect of Scheme 1 has
not been issued;
13.1.5.2.5
any of the conditions specified in any of
paragraphs 6.1, 6.2 and 6.3 of Part 1 of
Schedule 17 have not been satisfied.
13.1.6
In the event of service of a notice by the Department's Nominee under
Clause 13.1.4.2 and following completion by the DBFO Co of such
further works or other measures necessary or appropriate to remedy or
remove the cause of the refusal to issue a Permit to Use, the DBFO Co
may give notice to the Department's Nominee that such further works have
been completed or measures taken and the Department's Nominee shall
inspect such further works or measures within 5 Working Days of such
notice and the provisions of Clauses 13.1.4 and 13.1.5 and this Clause
13.1.6 shall thereafter apply to such notice mutatis mutandis.
13.2 Completion Certificate
13.2.1
Notwithstanding the issue of a Permit to Use in respect of the New Road or
any Part of the New Road, the DBFO Co shall promptly complete all
outstanding Works, if any, as soon as practicable.
13.2.2
Not later than 20 Working Days and not earlier than 25 Working Days
prior to the date upon which the DBFO Co expects the whole of the Works
(other than the Excepted Works (if any)) to be completed the DBFO Co
shall issue to the Department's Nominee a notice to that effect, which shall
identify all of the works which the DBFO Co anticipates will be required
during that period to complete the Works up to such standard. The
Department's Nominee shall as soon as reasonably practicable and in any
event within 10 Working Days of receipt of such notice commence an
inspection of the Works.
13.2.3
The Department's Nominee shall as soon as reasonably practicable and in
any event within 10 Working Days of the commencement of such
inspection either:
13.2.3.1 confirm in writing that he will, subject to Clause 13.2.5.2 and
to the satisfactory completion of the works referred to in the
notice given by the DBFO Co pursuant to Clause 13.2.2,
issue the Completion Certificate; or
13.2.3.2 notify the DBFO Co in writing that he would not issue the
Completion Certificate upon completion of the works referred
to in the notice given by the DBFO Co pursuant to Clause
13.2.2 and state the reasons for such decision, in which case
the notice referred to in Clause 13.2.2 shall cease to have any
effect.
13.2.4
Following the confirmation by the Department's Nominee under Clause
13.2.3.1 and the DBFO Co completing the whole of the Works the DBFO
Co shall issue to the Department's Nominee a notice to that effect. The
Department's Nominee shall as soon as reasonably practicable and in any
event within 2 Working Days of the receipt of such notice commence an
inspection of the Works.
13.2.5
The Department's Nominee shall within 3 Working Days of the
commencement of the inspection referred to in Clause 13.2.4 either:
13.2.5.1 issue the Completion Certificate; or
13.2.5.2 notify the DBFO Co in writing of his decision not to issue the
Completion Certificate and state the reasons for such decision
(which shall not be limited by any reasons stated in the notice
given by the Department's Nominee pursuant to Clause
13.2.3).
13.2.6
The Department's Nominee may refuse to issue the Completion Certificate
if:
13.2.6.1 the Works (other than any Excepted Works) (in the case of a
confirmation given pursuant to Clause 13.2.3.1) will not have
or (in the case of the Completion Certificate) have not, been
completed in all material respects in accordance with the Core
Construction Requirements, the Core Communications
Requirements, the Construction Requirements and the
Communications Requirements; or
13.2.6.2 there has been and continues to be material non-compliance
with the Design and Certification Procedure and that non
compliance is still material at the date that the certificate
would otherwise be issued; or
13.2.6.3 the DBFO Co has not complied with the requirements of
paragraph 7 of Part 2 of Schedule 14 [Reports and Records];
or
13.2.6.4 the requirements of paragraph 7.1.7 of Section 7 of Part 2 of
Schedule 6 have not been complied with.
13.2.7
In the event of service of a notice by the Department's Nominee under
Clause 13.2.5.2 and following completion by the DBFO Co of such
further works or other measures necessary or appropriate to remedy or
remove the cause of the refusal to issue a Completion Certificate, the
DBFO Co may give notice to the Department's Nominee that such further
works have been completed or measures taken and the Department's
Nominee shall inspect such further works or measures within 5 Working
Days of such notice and the provisions of Clauses 13.2.3, 13.2.4, 13.2.5,
13.2.6 and this Clause 13.2.7 shall thereafter apply to such notice mutatis
mutandis.
13.2.8
The issue of a Completion Certificate shall be without prejudice to:
13.2.8.1 the obligation of the DBFO Co to operate and maintain the
Project Facilities in accordance with this Agreement;
13.2.8.2 any warranties given by the DBFO Co under this Agreement;
13.2.8.3 Clause 13.3.5.3.
13.2.8.4 the obligation of the DBFO Co to complete all Excepted Off-
Site Works as soon as practicable following the grant of
access to the relevant areas by the relevant highway authority
for the purpose of carrying out such Works; or
13.2.8.5 the obligation of the DBFO Co to complete all Insulation
Works in accordance with the requirements of Part 6 of
Schedule 4 [Noise Insulation Requirements].
13.2.9
In this Clause 13.2, "Excepted Off-Site Works" means Off-Site Works
which;
13.2.9.1 are required to be carried out on land or highways in the
control or ownership of a highway authority other than the
Secretary of State; and
13.2.9.2 have not been completed in all material respects in accordance
with the Construction Requirements at the time of the
inspection under Clause 13.2.3 solely by reason of such
highway authority not having given access to the DBFO Co to
such areas to carry out such Off-Site Works (provided that
such failure to give access is not attributable to any act,
neglect or default of the DBFO Co).
13.3 Local Facilities and De-Trunked Segments
13.3.1
Not later than 20 Working Days prior to the date upon which the DBFO
Co expects:
13.3.1.1 that part of the Works in respect of any Local Authority Road
will be completed in all material respects in accordance with
the Core Construction Requirements and the Construction
Requirements and, without limitation thereto, completed to
such extent that such Local Authority Road shall be suitable
and safe for use by members of the public without traffic
management restrictions; or
13.3.1.2 that part of the Works in respect of any other Local Facilities
will be completed in accordance with the Core Construction
Requirements and the Construction Requirements; or
13.3.1.3 the Works on a section of the New Road, which will replace a
De-Trunked Segment upon which no Works are required, will
be completed in accordance with the Core Construction
Requirements and the Construction Requirements,
the DBFO Co shall issue a notice to that effect to the Department's
Nominee. Upon the DBFO Co confirming that completion as aforesaid
has occurred then the Department's Nominee shall, within 15 Working
Days of receipt of such confirmation, commence an inspection of such
Local Facilities, and the DBFO Co shall not object to the participation in
such inspection of any Local Person to whom such Local Facilities are
intended to be handed over.
13.3.2
The Department's Nominee shall, within 10 Working Days of the
commencement of such inspection, either:
13.3.2.1 issue a Taking Over Certificate; or
13.3.2.2 notify the DBFO Co in writing of his decision not to issue a
Taking Over Certificate and state the reasons for such
decision.
13.3.3
Where notice is given pursuant to Clause 13.3.1.1 or 13.3.1.2 the
Department's Nominee may refuse to issue a Taking Over Certificate in
accordance with Clause 13.3.2.2 if:
13.3.3.1 in the case of a Local Authority Road, the Works in respect
thereof have not been completed in all material respects in
accordance with the Core Construction Requirements and the
Construction Requirements or have not been completed to
such extent that such Local Authority Road is suitable and
safe for use by members of the public without traffic
management restrictions;
13.3.3.2 without limitation to Clause 13.3.3.1, in the case of a De-
Trunked Segment, a Permit to Use has not been issued in
respect of the New Road or Part of the New Road which will
replace such De-Trunked Segment;
13.3.3.3 in the case of any Local Facilities, other than a Local
Authority Road, the Works in respect thereof have not been
completed in all material respects in accordance with the Core
Construction Requirements and the Construction
Requirements; or
13.3.3.4 in the case of the Works in respect of any Local Facilities,
there has been and continues to be material non-compliance
with the Design and Certification Procedure and that non-
compliance is still material at the date that the certificate
would otherwise be issued.
13.3.4
Where notice is given pursuant to Clause 13.3.1.3 the Department's
Nominee may refuse to issue a Taking Over Certificate in accordance with
Clause 13.3.2.2 if, in the case of a De-Trunked Segment, a Permit to Use
has not been issued in respect of the New Road or part of the New Road
which will replace such De-Trunked Segment.
13.3.5
Upon the issue of a Taking Over Certificate in respect of any Local
Facilities:
13.3.5.1 either the Secretary of State shall procure that the relevant
Local Person assumes responsibility for the operation and
maintenance (subject to Clause 13.3.5.3) of such Local
Facilities or De-Trunked Segment or the Secretary of State
shall himself assume responsibility for the operation and
maintenance (subject to Clause 13.3.5.3) of such Local
Facilities or De-Trunked Segment;
13.3.5.2 those parts of the Works comprising such Local Facilities and
those parts of the Existing Road comprising any De-Trunked
Segment shall be excluded from the definition of ''Off-Site
Facilities'', "New Road" and ''Existing Road'', as the case may
be, for all purposes of this Agreement (save for the purpose of
giving effect to the provisions of this Clause 13.3 [Local
Facilities and De-Trunked Segments]); and
13.3.5.3 the DBFO Co shall execute all such work of amendment,
reconstruction, and remedying of defects, shrinkages or other
faults required as a result of the DBFO Co's performance or
non-performance of its obligations under this Agreement as
the Department's Nominee may reasonably instruct the DBFO
Co to execute in order to bring or return (fair wear and tear
excepted) the relevant Local Facilities to the standard required
by the Core Construction Requirements and the Construction
Requirements, such instruction to be issued either during the
period of 5 years following the date of issue of the Taking
Over Certificate or within 10 Working Days after the
expiration of such period, as a result of an inspection made by
or on behalf of the Department's Nominee prior to its
expiration.
13.3.6
In the event of service of a notice by the Department's Nominee under
Clause 13.3.2.2 and following completion by the DBFO Co of such
further works or other measures necessary or appropriate to remedy or
remove the cause of the refusal to issue a Taking Over Certificate, the
DBFO Co may give notice to the Department's Nominee that such further
works have been completed or measures taken. The Department's
Nominee shall inspect such further works or measures within 5 Working
Days of such notice, and the DBFO Co shall not object to the participation
in such inspection of the relevant Local Person. The provisions of Clauses
13.3.2 to 13.3.6 (inclusive) shall thereafter apply to such notice mutatis
mutandis.
13.3.7
For the avoidance of doubt, all work referred to in Clause 13.3.5.3 shall be
executed by the DBFO Co at its own cost.
13.3.8
If the relevant Local Person assumes the responsibility for the operation
and maintenance of the Local Facilities or De-Trunked Segment in
accordance with Clause 13.3 [Local Facilities and De-Trunked Segments]
or otherwise, then it shall be entitled to the benefit of any warranties by the
DBFO Co under this Agreement to the extent applicable to such Local
Facilities and to the benefit of the undertakings by the DBFO Co under
this Clause 13.3 [Local Facilities and De-Trunked Segments] to the extent
applicable to such Local Facilities or De-Trunked Segment. The DBFO
Co shall execute such further documents and do all such other things as
may be reasonably requested by the Secretary of State for the purpose of
confirming or giving effect to the provisions of this Clause 13.3.8.
13.3.9
If the Secretary of State assumes responsibility for the operation and
maintenance of any Local Facilities or De-Trunked Segment in accordance
with Clause 13.3.5.1, then he may at his option by notice to the DBFO Co
require the DBFO Co to perform such obligations as may be specified in
such notice in respect of the operation and maintenance of such Local
Facilities or De-Trunked Segment for such period and on such terms as
may be specified in such notice. In such event:
13.3.9.1 the Secretary of State shall pay to the DBFO Co such sum in
respect of such operation and maintenance of such Local
Facilities or De-Trunked Segment as may be agreed between
the Secretary of State and the DBFO Co or, in the absence of
agreement, as may be determined under the Disputes
Resolution Procedure to be reasonable in the circumstances;
and
13.3.9.2 such Local Facilities or De-Trunked Segment shall continue to
be included in the definition of ''Off-Site Facilities'' and
''Existing Road'', as the case may be, for all purposes of this
Agreement for the period specified in such notice.
13.3.10
Subject to Clause 13.3.9, as soon as practicable following the issue of a
Taking Over Certificate, the DBFO Co shall vacate the relevant part of the
Adjacent Areas or Existing Road and leave it clear and free from such
debris, construction materials, Construction Plant and the like as shall
arise from the execution of the Works in respect of the relevant Local
Facilities to the reasonable satisfaction of the Department's Nominee.
13.3.11
Subject to Clause 13.3.9, as soon as practicable after a de-trunking order
comes into effect with respect to a De-Trunked Segment in respect of
which no Works are required under the Construction Requirements, the
DBFO Co shall vacate the relevant De-Trunked Segment, leaving it in no
worse condition than when the DBFO Co first was given access to or
occupation of the relevant De-Trunked Segment.
13.4 Disputed Certificate
13.4.1
If there shall be any Dispute as to whether a Permit to Use, Completion
Certificate or Taking Over Certificate is required to be issued in
accordance with the terms of Clause 13.1 [Permit to Use], Clause 13.2
[Completion Certificate] or Clause 13.3 [Local Facilities and De-Trunked
Segments] respectively, then either the Department's Nominee or the
DBFO Co may refer such Dispute for resolution under the Disputes
Resolution Procedure.
13.4.2
The issues for resolution in any such referral to the Disputes Resolution
Procedure shall be:
13.4.2.1 whether the Permit to Use, Completion Certificate or Taking
Over Certificate, as the case may be, was required to be
issued in accordance with the terms of Clause 13.1 [Permit to
Use], Clause 13.2 [Completion Certificate] or Clause 13.3
[Local Facilities and De-Trunked Segments] respectively; and
13.4.2.2 if so, the date on which such Permit to Use, Completion
Certificate or Taking Over Certificate should have been
issued.
13.4.3 The provisions of Annex 3 to Part 1 of Schedule 12 [Compensation Events]
shall, if applicable, be given effect.
14.
OPERATION AND MAINTENANCE
14.1 Operation and Maintenance
14.1.1
Subject to Clause 1.4.2 and save to the extent that it is prohibited from so
doing by reason of a breach by the Secretary of State of his obligations
under Clause 8.1 [Access for DBFO Co], from the O&M Commencement
Date and thereafter throughout the Contract Period the DBFO Co shall
operate and maintain the Project Facilities (other than the New Road (but
excluding from the definition of New Road any Upgraded Section) and
any Off-Site Facilities) in accordance with the terms of this Agreement
(including, without limitation, the O&M Requirements) and in such
manner as to procure satisfaction of the Core O&M Requirements
provided that the DBFO Co shall not (unless instructed to do so pursuant
to the Change Procedure) be obliged to remedy any damage to the Existing
Road caused as a direct result of road traffic accidents or ship collisions
(not involving the DBFO Co, its Contracting Associates or any other
DBFO Co's contractors or sub-contractors) which occurs during the
period between the execution of this Agreement and the day immediately
preceding the O&M Commencement Date. If such damage occurs and the
DBFO Co is not instructed to remedy the same as aforesaid the DBFO Co
shall permit the Secretary of State and/or his contractors and others to
enter upon the Site to carry out such works of repair as may be necessary
to remedy such damage.
14.1.2
Save to the extent that it is prohibited from so doing by reason of a breach
by the Secretary of State of his obligations under Clause 8.1 [Access for
DBFO Co], from the date of issue of a Permit to Use in respect of the New
Road or any Part of the New Road and thereafter throughout the Contract
Period, the DBFO Co shall operate and maintain the New Road or such
Part of the New Road in accordance with the terms of this Agreement
(including, without limitation, the O&M Requirements) and in such
manner as to procure satisfaction of the Core O & M Requirements.
14.1.3
Save to the extent that it is prohibited from so doing by reason of a breach
by the Secretary of State of his obligations under Clause 8.1 [Access for
DBFO Co], from the date of issue of the Completion Certificate in respect
of the Off-Site Facilities and thereafter throughout the Contract Period, the
DBFO Co shall operate and maintain such Off-Site Facilities in
accordance with the terms of this Agreement (including, without
limitation, the O&M Requirements) and in such manner as to procure
satisfaction of the Core O&M Requirements.
14.1.4
From the execution of this Agreement until the day immediately preceding
the O&M Commencement Date, the Secretary of State shall not exercise
any lesser standard of diligence in enforcing terms under any contract for
the operation and maintenance of the Existing Road to which it is a party
than he would usually exercise in relation to a similar contract.
14.1.5
If and to the extent that damage to the Existing Road occurs between the
date of execution of this Agreement and the O&M Commencement Date
(the “Existing Road Damageâ€) and the Secretary of State receives the
proceeds ("the ERD Insurance Proceeds") of the policy of insurance set
out in paragraph 2.1 of Part 1 to Schedule 10 [Insurances] as a
consequence of such Existing Road Damage, the Secretary of State shall
ensure that such proceeds are applied towards the repair of the Existing
Road Damage. For the purposes of this Clause 14.1.5, the Secretary of
State shall use his reasonable endeavours to pursue any claim he is entitled
to make arising in relation to the Existing Road Damage pursuant to the
policy of insurance set out in paragraph 2.1 of Part 1 to Schedule 10
[Insurances].
14.1.6
If any Existing Road Damage in respect of which the ERD Insurance
Proceeds were received has not been fully repaired prior to the O&M
Commencement Date, the Secretary of State shall pay to the DBFO Co the
balance (if any) of the ERD Insurance Proceeds that has not been applied
towards the repair of the Existing Road Damage.
14.2 O&M Requirements
14.2.1
The DBFO Co may, at any time hereafter, submit to the Department's
Nominee in accordance with the Review Procedure any proposed revision
to or substitution for the O&M Requirements (as set out in Part 2 of
Schedule 6 [Operation and Maintenance]) or as previously varied in
accordance with this Clause 14.2 [O&M Requirements]) or any part
thereof. If there shall be no objection to such proposed revision or
substitution (on the grounds set out in paragraph 3.8 of Part 2 of Schedule
7 [Review Procedure]), then the O&M Requirements as so varied shall be
the O&M Requirements for the purposes of this Agreement, subject to any
further revision or substitution to which there has been no objection in
accordance with the Review Procedure.
14.2.2
If the DBFO Co becomes aware that any element of the O&M
Requirements does not comply with and satisfy the Core O&M
Requirements, the DBFO Co shall so notify the Department's Nominee
and as soon as reasonably practicable, and in any event within 30 days of
becoming aware of such matter, the DBFO Co shall submit (in accordance
with Clause 14.2.1) a proposal to amend the O&M Requirements so that
they comply with and satisfy the Core O&M Requirements.
14.2.3
Without prejudice to Clause 14.2.2, if the DBFO Co:
14.2.3.1 becomes aware of any change (whether by addition,
modification, omission or otherwise) in the Department's
Standards; or
14.2.3.2 is notified by the Department's Nominee of a change (whether
by addition, modification, omission or otherwise) in the
Department's Standards that the Department's Nominee
considers relevant to the operation and maintenance of the
Project Facilities,
the DBFO Co shall forthwith submit (in accordance with Clause 14.2.1) a
proposal to amend the O&M Requirements to incorporate such change in
the Department's Standards. Such proposal shall be in the form set out in
Clause 14.10 [Changes to the O&M Standards] or Clause 14.11 [Step
Change in O&M Standards] (as applicable).
14.3 Inspections
14.3.1
The DBFO Co shall give the Department's Nominee timely notice of any
general or principal inspection or any other inspection of structures to be
conducted in accordance with the O&M Requirements.
14.3.2
The Department's Nominee shall be entitled to attend any inspection of the
Project Facilities (whether or not it is entitled to receive or has received
notice thereof in accordance with Clause 14.3.1) upon giving reasonable
notice to the DBFO Co.
14.4 Access
14.4.1
The DBFO Co shall procure that:
14.4.1.1
the Department's Nominee and any designee of the
Department's Nominee has unrestricted access to the Site and
the Adjacent Areas at all reasonable times throughout the
Contract Period in order to perform its functions under this
Agreement; and
14.4.1.2 the Secretary of State and any contractor or other designee of
the Secretary of State has unrestricted access to the Site and
the Adjacent Areas at all reasonable times throughout the
Contract Period in order:
14.4.1.2.1
to perform any obligations or exercise any
rights of the Secretary of State under this
Agreement; or
14.4.1.2.2
to fulfil any statutory functions of the
Secretary of State;
14.4.1.2.3
without limitation to Clauses 14.4.1.2.1 and
14.4.1.2.2, to conduct any study or trial for
purposes of research initiated by the
Secretary of State, provided that any such
study or
trial shall be conducted in
accordance with the provisions of Clause
14.7 [Trials]; or
14.4.1.2.4
without limitation to Clauses 14.4.1.2.1 and
14.4.1.2.2, to carry out or procure the
carrying out of any Additional Works.
14.4.2
The DBFO Co shall procure that all Relevant Authorities have access to
the Site and the Adjacent Areas throughout the Contract Period in order to
carry out any work (including, without limitation, surveys and inspections)
in accordance with any Legal Requirement or to exercise any right, power
or duty of such Relevant Authority under any Law, subject, other than in
the case of an emergency, to reasonable notice being given.
14.4.3
The Secretary of State shall procure that the DBFO Co (or the Contractor
or Operator) has access to the Connecting Roads at all reasonable times
throughout the Contract Period to the extent necessary to enable the
DBFO Co to perform its obligations under this Agreement, subject, other
than in the case of emergency, to reasonable notice being given.
14.5 Emergencies and Liaison
14.5.1
The Parties shall develop Liaison Procedures in accordance with the
provisions of Schedule 16 as soon as practicable after the date hereof.
14.5.2
Whenever the DBFO Co is required by this Agreement to take any action
in accordance with the Liaison Procedures, it shall take such action in
accordance with the procedures set out in or agreed in accordance with the
provisions of Schedule 16 [Liaison Procedures].
14.5.3
Notwithstanding any other provision of this Agreement, the DBFO Co shall
and shall be entitled to take (at its own cost) such steps as necessary in an
emergency for the protection of the public, but subject to the provisions of
the Liaison Procedures.
14.5.4
The DBFO Co shall establish the A249 Environmental Group in
accordance with, and comply with the other provisions of, Part 4 of
Schedule 16 [A249 Environment Group].
14.6 Maintenance and Other Works
The provisions of Clause 11 [Design and Construction] and paragraphs 3.3, 3.5, 3.8,
3.13, 3.14, 4 and 7 of Part 2 of Schedule 7 [Review Procedure] shall apply, mutatis
mutandis, to any works the subject of a Proposal other than the Works and other than
any works in relation to any Improvement, with any reference in such provisions to:
14.6.1
the Works being deemed a reference to such works the subject of the
Proposal;
14.6.2
a DBFO Co's Change being deemed a reference to an Alternative Proposal;
and
14.6.3
a DBFO Co's Change Certificate being deemed a reference to an
Alternative Proposal Certificate.
14.7 Trials
Any study or trial referred to in Clause 14.4.1.2.3 shall be conducted in such manner
as to minimise any adverse effect on traffic flows on the Project Road and no such
study or trial shall, without the consent of the DBFO Co (such consent not to be
unreasonably withheld or delayed), substantially affect the physical integrity of the
Project Facilities.
14.8 DBFO Co's 5 Year Management Plan
The DBFO Co shall prepare a DBFO Co's 5 Year Management Plan annually in
accordance with Part 3 of Schedule 14 [DBFO Co's 5 Year Management Plan] and
shall design and construct the New Road and operate and maintain the Project
Facilities:
14.8.1
in a manner designed to meet the DBFO Co's 5 Year Performance Targets
and the Annual Performance Targets contained in such DBFO Co's 5 Year
Management Plan; and
14.8.2
without prejudice to Clause 14.8.1, so as to achieve at all times the
Minimum Performance Levels.
14.9
DBFO Co's 5 Year Environmental Management Plan
The DBFO Co shall prepare and submit to the Secretary of State a DBFO Co's 5 Year
Environmental Management Plan in accordance with Part 5 of Schedule 14 [DBFO
Co's 5 Year Environmental Management Plan] and shall design and construct the New
Road and operate and maintain the Project Facilities.
14.9.1
in a manner designed to meet the DBFO Co's 5 Year Environmental
Performance Targets and the Annual Environmental Performance Targets
contained in such DBFO Co's 5 Year Environmental Management Plan;
and
14.9.2
without prejudice to Clause 14.9.1, so as to achieve at all times the
Minimum Environmental Performance Levels.
14.10 Changes to O&M Standards
14.10.1
Subject to Clause 14.11 [Step Changes in O&M Standards], any proposal
submitted by the DBFO Co to the Department's Nominee pursuant to
Clause 14.2.3 shall identify as applicable:
14.10.1.1 the standard or specification that the DBFO Co proposes as an
O&M Standard or should no longer constitute an O&M
Standard;
14.10.1.2 any amendments to the terms used in such standard or
specification as may be necessary to ensure the proper
application of such standard or specification to the operation
and maintenance of the Project Facilities;
14.10.1.3 any consequential amendments to Part 4 of Schedule 6 [O&M
Standards];
14.10.1.4 any consequential amendments to Part 2 of Schedule 6 [O&M
Requirements]; and
14.10.1.5 any other consequential amendments to this Agreement.
14.11 Step Change in O&M Standards
14.11.1
Where the DBFO Co believes that the submission of a proposal to the
Department's Nominee pursuant to Clause 14.2.3 would constitute a
submission in respect of a Step Change, it shall (instead of giving a notice
in accordance with Clause 14.10 [Changes to O&M Standards]) give a
notice (a "Step Change Notice") to that effect on the Department's
Nominee.
14.11.2
The Step Change Notice shall:
14.11.2.1 identify the details required by Clauses 14.10.1.1 to 14.10.1.5
[Changes to O&M Standards];
14.11.2.2 give details of the variation to the Operations which will
become necessary as a result of the implementation of the
change in Department's Standards; and
14.11.2.3 set out the basis of its belief that the implementation of the
change in Department's Standards would constitute a Step
Change.
14.11.3
Within 60 days of receipt of a Step Change Notice, the Department's
Nominee shall notify the DBFO Co that:
14.11.3.1 he agrees that a Step Change has occurred and that the
provisions of Clause 14.11.5 shall apply; or
14.11.3.2 he agrees that a Step Change has occurred and that the
provisions of Clause 14.11.6 shall apply; or
14.11.3.3 he does not agree that a Step Change has occurred, in which
case the Department's Nominee shall set out in the notice the
grounds of objection.
14.11.4
Where the Department's Nominee fails to respond to a Step Change Notice
within such 60 day period, the DBFO Co shall not be obliged to implement
the change in Department's Standards the subject of such Step Change
Notice and the Department's Nominee shall be deemed to have given a
notice to the DBFO Co under Clause 14.11.3.2.
14.11.5
Where the Department's Nominee gives (or is deemed to give) a notice
under Clause 14.11.3.1 or Clause 14.11.9.1, the Department's Nominee
shall initiate a Department's Change and the provisions of Annex 1 to Part
1 of Schedule 12 [Department's Change] shall apply.
14.11.6
Where the Department's Nominee gives (or is deemed to give) a notice
under Clause 14.11.3.2 or Clause 14.11.9.2, the DBFO Co shall not be
obliged to implement the change in Department's Standards the subject of
such Step Change Notice and the DBFO Co shall be deemed to have
discharged its obligations under Clause 14.2.3.1 and Clause 14.2.3.2.
14.11.7
Where the Department's Nominee gives a notice under Clause 14.11.3.3,
the Parties shall negotiate for a period of 60 days in an attempt to agree
whether a Step Change has occurred.
14.11.8
If the Parties fail to reach an agreement in accordance with Clause 14.11.7
within such 60 day period, then either Party may refer the Dispute to the
Disputes Resolution Procedure.
14.11.9
If it is determined under the Disputes Resolution Procedure that a Step
Change has occurred, the Department's Nominee shall, within 14 days of
such determination, give a notice to the DBFO Co specifying that either:
14.11.9.1 he wishes to initiate a Department's Change and that the
provisions of Clause 14.11.5 shall apply in respect of such
Step Change; or
14.11.9.2 he does not wish to initiate a Department's Change and that the
provisions of Clause 14.11.6 shall apply in respect of such
Step Change.
14.11.10 If the Department's Nominee fails to give a notice under Clause 14.11.9
within such 14 day period, the Department's Nominee shall be deemed to
have given a notice under Clause 14.11.9.1 and the provisions of Clause
14.11.5 shall apply as though the Department's Nominee had given notice
under Clause 14.11.9.1.
15.
TRAFFIC MANAGEMENT
15.1 Traffic Management
15.1.1
Subject to Clause 15.2 [Liaison and Diversionary Measures], from the
O&M Commencement Date, general management of traffic on the Project
Road shall be the responsibility of the DBFO Co.
15.1.2
Users shall be subject to the same Laws as those using the remainder of the
public highway network, and the enforcement of those Laws shall be the
responsibility of the police.
15.2
Liaison and Diversionary Measures
15.2.1
The DBFO Co shall be responsible during the conduct of the Operations
for ensuring compliance with the reasonable requirements of the Secretary
of State in respect of then existing highways (other than the Project Road)
for which he is the highway authority, of other highway authorities and of
the police with regard to the management of traffic which may be affected
by the carrying out of the Operations, all in accordance with the Liaison
Procedures.
15.2.2
Without prejudice to any authorisations required under any Law and
without prejudice to any other requirement of this Agreement, any
proposal by the DBFO Co to use Diversionary Measures shall be notified
to the Department's Nominee under the Review Procedure, explaining the
need for the same and the period during which such Diversionary
Measures will be used. Save in an emergency, the DBFO Co shall not
implement any such Diversionary Measures unless and until there has
been no objection to its proposal for the same under the Review
Procedure. The period during which such Diversionary Measures may be
used shall not exceed the period to which there has been no objection
under the Review Procedure.
15.2.3
If as a result of an emergency the need arises to use Emergency
Diversionary Measures, then subject to Clause 15.2.1 the DBFO Co may
effect the same, provided that the DBFO Co shall as soon as reasonably
practicable advise the Department's Nominee of such Emergency
Diversionary Measures and the reasons therefor and the DBFO Co shall
take reasonable steps to minimise the duration of such Emergency
Diversionary Measures.
15.3 Lane Closures
15.3.1
Within 60 days after the date of execution of this Agreement the DBFO Co
shall submit to the Department's Nominee in accordance with the Review
Procedure a Schedule of Lane Closures in respect of the Project Road for
the First Contract Year and the next succeeding Contract Year. Not later
than 1st January in each Contract Year after the First Contract Year the
DBFO Co shall submit to the Department's Nominee in accordance with
the Review Procedure a Schedule of Lane Closures in respect of the
Project Road for the next succeeding Contract Year. Any such Schedule
of Lane Closures shall give details of the proposed start and end dates for
each period of Lane Closure and the works to be carried out.
15.3.2
Not later than 60 days prior to the commencement of any Quarter, the
DBFO Co may submit to the Department's Nominee in accordance with
the Review Procedure a revision of the Schedule of Lane Closures
submitted pursuant to Clause 15.3.1 showing proposed revisions to the
periods of Lane Closure in respect of such Quarter. If there is no
objection to any such revision in accordance with the Review Procedure,
then it shall replace the annual Schedule of Lane Closures in respect of
such Quarter.
15.3.3
The Department's Nominee may raise comments in respect of any period of
Lane Closure requested in a Schedule of Lane Closures submitted by the
DBFO Co pursuant to Clause 15.3.1 or Clause 15.3.2 in accordance with
paragraph 3.6 of Part 2 of Schedule 7 [Review Procedure]. In such event,
the Department's Nominee shall notify the DBFO Co thereof with reasons
and shall indicate, in the case of an objection pursuant to paragraph 3.6.3
of Part 2 of Schedule 7 [Review Procedure], an appropriate duration for
such Lane Closure and in any other case a period when the unacceptable
period can be re-scheduled, on the basis that each such re-scheduled period
shall be as close as reasonably practicable to the requested period of Lane
Closure and of equal duration or, if the DBFO Co has indicated another
period and/or duration that would be preferable to it and that is acceptable
to the Department's Nominee, such other period and/or duration. The
DBFO Co shall thereupon amend the relevant Schedule of Lane Closures
accordingly and re-submit the same to the Department's Nominee in
accordance with the Review Procedure.
15.3.4
The DBFO Co shall not effect any Lane Closures save:
15.3.4.1 in accordance with a Schedule of Lane Closures to which no
objection has been made under the Review Procedure;
15.3.4.2 in accordance with the procedures set out in Clause 15.3.6;
15.3.4.3 in an emergency, in accordance with Clause 15.3.7;
15.3.4.4 for Type C lane closures (as defined in Section 6 of Chapter 8
of the Traffic Signs Manual); or
15.3.4.5 in accordance with an instruction from the police.
The DBFO Co shall not effect any Lane Closure without first obtaining
any order in respect of such Lane Closure necessary under any Law.
15.3.5
Notwithstanding that there has been no objection to a Schedule of Lane
Closures in accordance with the Review Procedure, the Department's
Nominee may upon 90 days prior written notice require the DBFO Co to
re-schedule a period of Lane Closure if due to a change in any
circumstances such re-scheduling is necessary to satisfy the standards set
out in paragraph 3.9.1 or 3.9.2 of Part 2 of Schedule 7 [Review
Procedure], provided, however, that the Department's Nominee may not
require:
15.3.5.1 that such period of Lane Closure be brought forward by more
than 60 days from the scheduled date of commencement of
such period of Lane Closure; or
15.3.5.2 that a period of Lane Closure be deferred by more than 60
days from the scheduled date of commencement of such period
of Lane Closure.
15.3.6
If the need arises for unprogrammed maintenance or repair works (not
being an emergency) requiring Lane Closures otherwise than in
accordance with an approved Schedule of Lane Closures, the DBFO Co
shall advise the Department's Nominee of such need and request approval
of the proposed commencement date and estimated duration of the
requisite Lane Closures. The Department's Nominee's approval of such
works shall not be unreasonably withheld or delayed, having regard to the
factors set out in paragraph 3.6 of Part 2 of Schedule 7 [Review
Procedure].
15.3.7
If as a result of an emergency the need arises for unprogrammed
maintenance or repair works requiring Lane Closures otherwise than in
accordance with an approved Schedule of Lane Closures, the DBFO Co
shall effect such Lane Closures, provided that the DBFO Co shall as soon
as reasonably practicable advise the Department's Nominee of such
closure and the reasons therefor and shall take all reasonable steps to
minimise the duration of such Lane Closure.
15.3.8
In the event of an emergency occurring on a Connecting Road, at the
request of the Department's Nominee the DBFO Co shall as far as is
reasonably practicable temporarily remove or modify any existing Lane
Closures and delay any proposed Lane Closures under any Schedule of
Lane Closures to which there has been no objection under the Review
Procedure which in either such case conflict with any lane closures or
other arrangements implemented to deal with the emergency.
15.3.9
The DBFO Co shall promptly remove traffic cones or other traffic
management equipment which is no longer required.
15.4 Information Requirements
15.4.1
The DBFO Co shall provide to the Secretary of State such information
(including without limitation details of proposed Lane Closures and
information about its traffic safety and management measures on the
Project Road) as may be required for purposes of any information service
operated by or on behalf of the Secretary of State from time to time. Such
information shall contain such details, be in such format and be sent to
such address at such times as may be notified to the DBFO Co by the
Secretary of State from time to time.
15.4.2
The DBFO Co shall, in accordance with Clause 16.9 [Information for the
Public], operate a telephone service connected to any telephone system and
number nominated from time to time by the Secretary of State in relation
to all or any part of the Trunk Road Network.
15.5. Secretary of State's Maintenance
15.5.1
Without prejudice to Clause 15.3.8, the Secretary of State shall use
reasonable endeavours to co-ordinate his maintenance programme for the
Connecting Roads with any Schedule of Lane Closures in respect of the
Project Road to which there has been no objection under the Review
Procedure, so as to minimise any disruption to the operation of the Project
Road.
15.5.2
Within 90 days after the date of execution of this Agreement the
Department's Nominee shall provide to the DBFO Co a Schedule of Lane
Closures in respect of the Connecting Roads for the First Contract Year
and the next succeeding Contract Year. Not later than 1st February in
each Contract Year after the First Contract Year the Department's
Nominee shall provide to the DBFO Co a Schedule of Lane Closures in
respect of the Connecting Roads for the next succeeding Contract Year.
15.5.3
Other than in the case of emergency, the Department's Nominee shall give
prompt notice to the DBFO Co of any revisions to the Schedule of Lane
Closures provided to the DBFO Co pursuant to Clause 15.5.2.
15.5.4
The Schedule of Lane Closures provided to the DBFO Co pursuant to
Clause 15.5.2 and any revisions thereto provided pursuant to Clause
15.5.3 shall be for information purposes only. The Secretary of State
shall have no liability to the DBFO Co in respect of any variations of or
departures from any such Schedule of Lane Closures.
16.
SIGNING AND COMMUNICATIONS
16.1
Traffic Signs Provisions
The DBFO Co shall procure that all Traffic Signs on or near the Project Road shall
be in accordance with the Traffic Signs Provisions and the Traffic Signs Manual,
except:
16.1.1 to the extent required by any contrary provision in the Technical
Requirements;
16.1.2 to the extent required by any Department's Change; or
16.1.3 for any Traffic Signs on the Project Road on the Commencement Date,
provided that any such Traffic Signs which under the Traffic Signs
Provisions are required by a specified time to be replaced by signs of a
different design or removed shall be so replaced or removed.
16.2
New Signs
Save to the extent that any of the same are specified by the Technical Requirements
or any Department's Change and notwithstanding and without prejudice to any
obligation to obtain any necessary authorisations in accordance with the Traffic
Signs Provisions in respect thereof, the DBFO Co shall submit the proposed layout,
location, type, size, colour and content of all Traffic Signs or other signs (including
without limitation the signs referred to in Clause 16.5 [Notification Signs]) to be
located on or near the Project Road to the Department's Nominee in accordance
with the Review Procedure. The Department's Nominee shall be entitled to raise
comments on any such proposal only on the grounds set out in paragraph 3.7 of
Part 2 of Schedule 7 [Review Procedure].
16.3
Local Roads
Signing on roads for which the Secretary of State is not the highway authority shall
be subject to agreement between the DBFO Co and the relevant local highway
authority.
16.4
Directional Signs
Without prejudice to the DBFO Co's obligations to provide signs near the Project
Road in accordance with the Technical Requirements the Secretary of State shall, at
his own cost, install on motorways or trunk roads for which the Secretary of State
is the highway authority (other than the Project Road) such further signs notifying
motorists of the access to the Project Road as shall be necessary in accordance with
the Secretary of State's duties as highway authority.
16.5
Notification Signs
The DBFO Co shall install on the Project Road at distances not further than 1
kilometre from each Motorway junction or Class A Road which is an access to or
exit from the Project Road signs notifying Users of the telephone number for
enquiries and complaints in respect of the Project Road required pursuant to Clause
15.4 [Information Requirements] and in accordance with Clause 16.9 [Information
for the Public].
16.6
Additional Signs
For the avoidance of doubt, the Secretary of State may require the DBFO Co to
place Traffic Signs (other than those required in accordance with the Technical
Requirements or Clauses 16.4 [Directional Signs] and 16.5 [Notification Signs]) on
or near the Project Road or to remove any such Traffic Signs. Where the Secretary
of State does so require such requirement shall be treated as a Department's
Change.
16.7
Removal of Signs
The DBFO Co shall, at its own cost (unless otherwise directed by the Secretary of
State), remove all signs referred to in Clause 16.5 [Notification Signs] within 30
days following termination of this Agreement.
16.8
Communications
16.8.1
The DBFO Co shall comply with the Communications Requirements.
16.8.2
The DBFO Co shall obtain in a timely manner and maintain in force
any licence or consent required under the Telecommunications Act
1984 in order to perform its obligations under this Agreement.
16.9
Information for the Public
In relation to any provision of information to the public pursuant to this Agreement
including, without limitation, pursuant to Clauses 15.4 [Information Requirements]
and 16.5 [Notification Signs] the DBFO Co shall comply with the requirements set
out in paragraph 2.7.2 of Part 2 of Section 2 of Schedule 6 [O&M Requirements].
17.
DEFECTS IN THE EXISTING ROAD
17.1 Latent Defects
For the purposes of this Agreement, the term ''Latent Defect'' shall mean any defect in
the Existing Road at the date hereof which could not reasonably have been ascertained
by a competent person acting in accordance with Good Industry Practice during the
inspection referred to in Clause 6.1.1 or from an analysis of all relevant information
available to the DBFO Co prior to the date of execution of this Agreement (including,
without limitation, the information referred to in Clause 38.2.1).
17.2 Reporting of Latent Defects
Without prejudice to paragraph 2.8 of Part 2 of Schedule 14 [Reports], in the event
that a Latent Defect shall become apparent, the DBFO Co shall promptly give notice to
the Secretary of State identifying such defect.
17.3 Remedial Action
For the avoidance of doubt, the DBFO Co shall be responsible for any remedial or
other works required as a result of any defect in the Project Road, including, without
limitation, any Latent Defect.
17.4 Costs of Defects
17.4.1
All costs of and associated with any defect in the Project Road (including
without limitation any Latent Defect) and any remedial or other works in
respect thereof shall be borne by the DBFO Co, provided that this
obligation to bear costs shall not extend to:
17.4.1.1
the costs of damage to the Existing Road caused as a
direct result of road traffic accidents or ship collisions (not
involving the DBFO Co, its contracting associates or any
other of the DBFO Co's contractors or sub-contractors) which
occurs during the period between the execution of this
Agreement and the day immediately preceding the O&M
Commencement Date; or
17.4.1.2
any costs arising from a failure by the Secretary of
State to comply with his obligations under Clause 14.1.4; or
17.4.1.3
the costs of any Existing Road Damage to the extent
that the Secretary of State receives the proceeds of the policy
of insurance set out in paragraph 2.1 of Part 1 to Schedule 10
as a consequence of such damage and applies the same
towards the repair of the Existing Road Damage.
17.4.2
For the avoidance of doubt, the Secretary of State
shall have no liability to the DBFO Co in respect of any loss of profit, loss
of income, loss of contract or any other losses arising out of or in
connection with the existence of any Latent Defect or any remedial or
other works required as a result of any Latent Defect.
17.5 Enforcement of Rights against Third Parties
17.5.1
If the DBFO Co suffers loss as a result of any Latent Defect and it wishes
the Secretary of State to exercise any rights against any Third Party
Contractor which the Secretary of State may have in respect of any
Defective Work giving rise to such Latent Defect, then the DBFO Co may
serve a notice on the Secretary of State asking him to exercise any right he
may have to make a claim against the relevant Third Party Contractor (the
''Third Party Contractor Claim Notice'');
17.5.2
The Third Party Contractor Claim Notice shall:
17.5.2.1 describe such claim in a level of detail sufficient to enable the
Secretary of State to understand the basis for such claim;
17.5.2.2 set out the DBFO Co's detailed estimate of the value of such
claim; and
17.5.2.3 contain an undertaking on the part of the DBFO Co (in a form
reasonably satisfactory to the Secretary of State) to meet all
costs and/or liabilities properly incurred by the Secretary of
State in pursuing such claim.
17.5.3
The Secretary of State shall be under no obligation to exercise any right in
respect of any Defective Work against any Third Party Contractor if he
considers, and either it is agreed by the DBFO Co or decided by an Expert
appointed under the Disputes Resolution Procedure, that there is no
reasonable prospect of making a successful and financially worthwhile
claim in relation to such right.
17.5.4
Where the Secretary of State is successful in a claim against a Third Party
Contractor in respect of Defective Work pursuant to a Third Party
Contractor Claim Notice he shall account to the DBFO Co for the
Recovery Amount following the final conclusion of the relevant
proceedings by the Secretary of State against the Third Party Contractor
and the expiry of the time for any appeal.
17.5.5
Nothing in this Clause 17.5 [Enforcement of Rights against Third Parties]
shall derogate from or relieve the DBFO Co of any of its obligations under
this Agreement.
FOSSILS AND ANTIQUITIES
18.1 Archaeological Works
18.1.1
The DBFO Co shall procure that the Archaeologist has unrestricted access
to the Site and the Adjacent Areas at all reasonable times and, without
limitation to Clause 18.3 [Disposal], shall give due regard to any
recommendation of the Archaeologist in regard to any archaeological
surveys or inspections of the Site or the Adjacent Areas.
18.1.2
The DBFO Co shall carry out the Archaeological Works.
18.1.3
In connection with Maintenance Works, the DBFO Co shall undertake such
further archaeological surveys and consultations with English Heritage
and the archaeologists of the relevant local authorities as is consistent with
Annex 10/E to Part 2 of Schedule 4 [Archaeology] mutatis mutandis.
18.1.4
At all times when an Archaeologist is or is required to be appointed in
accordance with this Agreement, the DBFO Co shall at all times ensure
that he has expertise in the area of archaeology relevant to any Fossils and
Antiquities discovered on the Site or Adjacent Areas.
18.1.5
The DBFO Co shall comply with all the requirements of Annex 10/E to
Part 2 of Schedule 4.
18.2 Ownership
As between the Secretary of State and the DBFO Co, all Fossils and Antiquities shall
be the property of the Secretary of State.
18.3 Disposal
The DBFO Co shall take all reasonable precautions to prevent the removal of, or
damage to, any Fossils and Antiquities. It shall immediately notify the Department's
Nominee of the discovery of any Fossils and Antiquities and shall carry out any orders
of the Department's Nominee regarding the examination and disposal of the same,
provided that
18.3.1
if such Fossils and Antiquities comprise Archaeological Remains and as at
the date of such notification there is an Archaeological Design in respect
of the examination and disposal of such Fossils and Antiquities to which
there has been no objection under the Review Procedure, then:
18.3.1.1 the DBFO Co shall proceed to examine and dispose of such
Fossils and Antiquities in accordance with such
Archaeological Design and Good Industry Practice; and
18.3.1.2 if such Fossils and Antiquities comprise Unforeseeable
Archaeological Features, the Department's Nominee shall be
deemed, for the purposes of Clause 18.4 [Costs], to have given
an order in accordance with this Clause 18.3 to examine and
dispose of such Fossils and Antiquities in accordance with
such Archaeological Design and Good Industry Practice,
but without prejudice to the ability of the Department's Nominee to give
further orders pursuant to this Clause 18.3 regarding the examination and
disposal of such Fossils and Antiquities;
18.3.2
if such Fossils and Antiquities comprise Archaeological Remains and as at
the date of such notification there is no Archaeological Design in respect
of the examination and disposal of such Fossils and Antiquities to which
there has been no objection under the Review Procedure, then the
provisions of paragraphs 6.1 to 6.8 of Annex 10/E to Part 2 of Schedule 4
shall apply (as applicable);
18.3.3
if such Fossils and Antiquities do not comprise Archaeological Remains
and as at the date of such notification there is Design Data in respect of
the examination and disposal of such Fossils and Antiquities to which
there has been no objection under the Review Procedure, then
18.3.3.1 the DBFO Co shall proceed to examine and dispose of such
Fossils and Antiquities in accordance with such Design Data
and Good Industry Practice; and
18.3.3.2 if such Fossils and Antiquities comprise Unforeseeable
Archaeological Features, the Department's Nominee shall be
deemed, for the purposes of Clause 18.4 [Costs], to have given
an order to the DBFO Co in accordance with this Clause 18.3
to examine and dispose of such Fossils and Antiquities in
accordance with such Archaeological Design and Good
Industry Practice,
but without prejudice to the ability of the Department's Nominee to give
further orders pursuant to this Clause 18.3 regarding the examination and
disposal of such Fossils and Antiquities; or
18.3.4
if such Fossils and Antiquities do not comprise Archaeological Remains
and as at the date of such notification there is no Design Data in respect of
the examination and disposal of such Fossils and Antiquities to which
there has been no objection under the Review Procedure, then as soon as
reasonably practicable after such notification the DBFO Co shall submit
to the Department's Nominee under the Review Procedure its proposals for
the examination and disposal of such Fossils and Antiquities and:
18.3.4.1 the DBFO Co shall proceed to implement such of its proposals
to which there has been no objection under the Review
Procedure;
18.3.4.2 if such Fossils and Antiquities comprise Unforeseeable
Archaeological Features then upon there being no objection
under the Review Procedure to the DBFO Co's proposals, the
Department's Nominee shall be deemed, for the purposes of
Clause 18.4 [Costs], to have given an order in accordance
with this Clause 18.3 to proceed to implement such proposal,
but without prejudice to the ability of the Department's Nominee to give
further orders pursuant to this Clause 18.3 regarding the examination and
disposal of such Fossils and Antiquities.
18.3.5
Save as provided in Clause 18.4 [Costs], the DBFO Co shall not be entitled
to recover from the Secretary of State any costs it incurs as a consequence
of carrying out such orders of the Department's Nominee. The DBFO Co
shall take all reasonable steps consistent with Good Industry Practice to
minimise any delay to completion of the Works as a result of carrying out
such orders.
18.4 Costs
If:
18.4.1
the DBFO Co notifies the Department's Nominee of the discovery of
Fossils and Antiquities in accordance with Clause 18.3 [Disposal] and
such Fossils and Antiquities comprise Unforeseeable Archaeological
Features;
18.4.2
the Department's Nominee gives (or is deemed to give) orders in
accordance with Clause 18.3 [Disposal] regarding the examination and
disposal of such Unforeseeable Archaeological Features; and
18.4.3
in consequence of compliance with the orders of the Department's Nominee
referred to in Clause 18.4.2 there will be a delay in or increase in the cost
of the Works or the conduct of the Operations,
then the Department's Nominee shall as soon as reasonably practicable request a Department's
Change pursuant to Annex 1 to Part 1 of Schedule 12 [Department's Change] or give notice of
Additional Works pursuant to Part 1 of Schedule 13 [Procedure for Additional Works]. Save
as agreed or determined pursuant to Annex 1 or Annex 2 to Part 1 of Schedule 12, no increases
in costs will be allowed as a consequence of compliance with the orders of the Department's
Nominee referred to in Clause 18.4.2.
19.
HANDBACK
19.1 Handback Requirements
Upon the Expiry Date, each element of the Project Facilities shall comply with the
Handback Requirements.
19.2 Initial Inspection
19.2.1
Not less than 57 months nor more than 63 months prior to the expected
Expiry Date, the DBFO Co and the Department's Nominee shall conduct a
joint inspection (the ''Initial Inspection'') of the pavement of the Project
Road and all Structures forming part of the Project Road. If no date for
the Initial Inspection has been agreed between the DBFO Co and the
Department's Nominee, the Department's Nominee may initiate the Initial
Inspection during such period by giving at least 30 days' notice to that
effect to the DBFO Co and such inspection shall be conducted on the date
specified in such notice.
19.2.2
Such inspection shall comply with the requirements set out in paragraph 2
of Part 4 of Schedule 4 [Handback Requirements].
19.3 Renewal Programme
19.3.1
Within 90 days after the completion of the Initial Inspection, the DBFO Co
shall provide to the Department's Nominee a report on the condition of the
pavement of the Project Road and the Structures referred to in Clause
19.2.1 and a notice setting out:
19.3.1.1 the DBFO Co's proposals as to the Renewal Works;
19.3.1.2 the DBFO Co's proposals as to the Renewal Programme; and
19.3.1.3 the DBFO Co's estimate of the Renewal Amount.
19.3.2
The proposals referred to in Clause 19.3.1.1 shall be made, inter alia:
19.3.2.1 on the basis of an assessment of the Residual Life of the
relevant element of the Project Facilities in accordance with
the provisions of paragraph 2 of Part 4 of Schedule 4
[Handback Requirements]; and
19.3.2.2 on the assumption that the Project Facilities will be maintained
in accordance with the O&M Requirements for the remainder
of the Contract Period.
19.3.3
The Department's Nominee may, within 90 days after receipt of the notice
from the DBFO Co in accordance with Clause 19.3.1, by notice to the
DBFO Co object to the proposals in respect of any or all of the Renewal
Works, the Renewal Programme and the Renewal Amount as set out in the
DBFO Co's notice. The notice from the Department's Nominee shall give
details of the grounds for such objection and shall give the Department's
Nominee's proposals in respect of the Renewal Works and Renewal
Programme and his estimate of the Renewal Amount.
19.3.4
If no agreement is reached between the DBFO Co and the Department's
Nominee as to any matter referred to in the notice given in accordance
with Clause 19.3.3 within 60 days of receipt by the DBFO Co of such
notice, then either the DBFO Co or the Department's Nominee may refer
the matter to the Disputes Resolution Procedure for determination:
19.3.4.1 in the case of an objection in respect of the Renewal Works,
whether or not the objection is justified and whether any
alternative proposals by the Department's Nominee are more
appropriate to ensure that the pavement of the Project Road
and the relevant Structures will satisfy the Handback
Requirements on the Expiry Date (on the basis referred to in
Clause 19.3.2);
19.3.4.2 in the case of an objection in respect of the Renewal
Programme, what programme would be reasonable for the
implementation of the Renewal Works; and
19.3.4.3 in the case of an objection in respect of the Renewal Amount,
what amount would represent the reasonable cost of carrying
out the Renewal Works, on the assumption that such Renewal
Works will be carried out in accordance with Good Industry
Practice.
19.3.5
Upon agreement or determination in accordance with the Disputes
Resolution Procedure of the Renewal Works and the Renewal Programme,
the DBFO Co shall procure that the Renewal Works are carried out in
accordance with the Renewal Programme. For the avoidance of doubt, the
DBFO Co shall procure at its own cost that the Renewal Works are
carried out notwithstanding that the actual cost of the Renewal Works may
be higher than the Renewal Amount.
19.3.6
For the avoidance of doubt, neither the agreement of the Department's
Nominee to any Renewal Works, Renewal Programme or Renewal
Amount, nor the participation of the Department's Nominee in any
inspection under this Clause 19 [Handback], nor the complete or partial
carrying out of the Renewal Works shall relieve or absolve the DBFO Co
from:
19.3.6.1 its obligation under Clause 19.1 [Handback Requirements]; or
19.3.6.2 any obligation to conduct any other inspection or perform any
other works in accordance with the O&M Requirements.
19.4 Second Inspection
19.4.1
Not less than 15 months nor more than 18 months prior to the expected
Expiry Date, the DBFO Co and the Department's Nominee shall conduct a
joint inspection (the ''Second Inspection'') of all elements of the Project
Facilities, including without limitation the pavement and the Structures
referred to in Clause 19.2.1 (whether or not the Renewal Works in respect
of the pavement and such Structures have been carried out).
19.4.2
Such inspection shall comply with the requirements set out in paragraph 2
of Part 4 of Schedule 4 [Handback Requirements] as applicable to each
element of the Project Facilities.
19.5 Revised Renewal Programme
19.5.1
Within 60 days after the completion of the Second Inspection, the DBFO
Co shall provide to the Department's Nominee a report on the condition of
the Project Facilities and a notice setting out:
19.5.1.1 the DBFO Co's proposals as to any revisions or additions to
the Renewal Works (including without limitation those
referred to in Clause 19.5.6) required in order to procure that
all elements of the Project Facilities will, on the Expiry Date,
satisfy the Handback Requirements;
19.5.1.2 the DBFO Co's proposals as to any revisions to the Renewal
Programme as a consequence of such revisions or additions to
the Renewal Works; and
19.5.1.3 the DBFO Co's estimate of any changes in the Renewal
Amount as a consequence of such revisions or additions to the
Renewal Works.
19.5.2
The proposals referred to in Clause 19.5.1.1 shall be made, inter alia, on
the basis set out in Clause 19.3.2.
19.5.3
The Department's Nominee may, within 28 days after receipt of the notice
from the DBFO Co in accordance with Clause 19.5.1, by notice to the
DBFO Co object to any proposed revisions or additions to any or all of the
Renewal Works, the Renewal Programme and the Renewal Amount as set
out in the DBFO Co's notice. The notice from the Department's Nominee
shall give details of the grounds for such objection and shall give the
Department's Nominee's proposals in respect of such matters.
19.5.4
If no agreement is reached between the DBFO Co and the Department's
Nominee as to any matter referred to in the notice given in accordance
with Clause 19.5.3 within 28 days of receipt by the DBFO Co of such
notice, then either the DBFO Co or the Department's Nominee may refer
the matter to the Disputes Resolution Procedure for determination:
19.5.4.1 in the case of an objection in respect of any revisions or
additions to the Renewal Works, whether or not the objection
is justified and whether any alternative proposals by the
Department's Nominee are more appropriate to ensure that
each element of the Project Facilities will satisfy the
Handback Requirements on the Expiry Date (on the basis
referred to in Clause 19.3.2);
19.5.4.2 in the case of an objection in respect of any revisions to the
Renewal Programme, what programme would be reasonable
for the implementation of the Renewal Works (as revised or
added to in accordance with the provisions of this Clause 19.5
[Revised Renewal Programme]); and
19.5.4.3 in the case of an objection in respect of any change in the
Renewal Amount, what amount would represent the
reasonable cost of carrying out the Renewal Works (as
revised or added to in accordance with the provisions of this
Clause 19.5 [Revised Renewal Programme]).
19.5.5
Upon agreement or determination in accordance with the Disputes
Resolution Procedure of any revision or addition to the Renewal Works or
the Renewal Programme, the DBFO Co shall procure that the Renewal
Works (as so revised or added to) are carried out in accordance with the
Renewal Programme (as so revised). For the avoidance of doubt, the
DBFO Co shall procure, at its own cost, that the Renewal Works (as so
revised or added to) are carried out notwithstanding that the actual cost of
the Renewal Works may be higher than the Renewal Amount (as changed
in accordance with this Clause 19.5 [Revised Renewal Programme]).
19.5.6
The Renewal Works proposed pursuant to Clause 19.5.1.1 shall include,
inter alia, the following:
19.5.6.1 the renewal of all reflecting road studs on the Project Facilities
within the last 6 months of the Contract Period, provided that
metal housings having a Residual Life of at least 5 years at
the Expiry Date need not be renewed; and
19.5.6.2 the renewal of all lamps on the Project Facilities within the last
6 months of the Contract Period.
19.6 Handback Inspection
19.6.1
Not later than 28 days after the Expiry Date, the DBFO Co and the
Department's Nominee shall conduct a joint inspection of the Project
Facilities (the ''Handback Inspection''). Such inspection shall comply with
the requirements set out in paragraph 2 of Part 4 of Schedule 4 [Handback
Requirements] as applicable to each element of the Project Facilities.
19.6.2
Within 90 days after the completion of the Handback Inspection, the
Department's Nominee shall either:
19.6.2.1 issue to the DBFO Co a Handback Certificate; or
19.6.2.2 notify the DBFO Co in writing of his decision not to issue the
Handback Certificate and state the reason for such decision.
19.6.3
The Department's Nominee may refuse to issue the Handback Certificate if:
19.6.3.1 the DBFO Co shall have failed to complete all of the Renewal
Works; or
19.6.3.2 the Project Facilities for any other reason do not comply with
the Handback Requirements in all respects.
19.6.4
Any notice given by the Department's Nominee in accordance with Clause
19.6.2.2 shall set out each respect in which the Renewal Works have not
been completed or the Project Facilities do not comply with the Handback
Requirements and shall state the Department's Nominee's estimate of the
cost of completing such Renewal Works and/or of procuring that the
Project Facilities comply in all respects with the Handback Requirements.
19.6.5
The DBFO Co may, within 28 days after receipt of a notice given in
accordance with Clause 19.6.2.2, by notice to the Department's Nominee
object to any matter set out in the Department's Nominee's notice. The
notice from the DBFO Co shall give details of the grounds for such
objection and shall give the DBFO Co's proposals in respect of such
matters.
19.6.6
If no agreement is reached between the DBFO Co and the Department's
Nominee as to any matter referred to in the notice given in accordance
with Clause 19.6.5 within 60 days of receipt by the Department's Nominee
of such notice, then either the DBFO Co or the Department's Nominee
may refer the matter to the Disputes Resolution Procedure for
determination, as the case may be:
19.6.6.1 whether the Renewal Works have been completed;
19.6.6.2 whether the Project Facilities comply in all respects with the
Handback Requirements; and
19.6.6.3 of the estimated cost of procuring that such Renewal Works
are completed and that the Project Facilities comply in all
respects with the Handback Requirements.
19.6.7
If it is agreed or determined in accordance with the Disputes Resolution
Procedure that the DBFO Co has not completed the Renewal Works or
that the Project Facilities do not comply in all respects with the Handback
Requirements, then without prejudice to any other right or remedy of the
Secretary of State the DBFO Co shall pay to the Secretary of State an
amount equal to the estimated cost of completing such Renewal Works or
procuring that the Project Facilities comply in all respects with the
Handback Requirements, as agreed or determined in accordance with
Clause 19.6.6 (the ''Handback Amount''). Such payment shall be made
not later than 14 days after such estimated cost has been agreed or
determined in accordance with this Clause 19.6 [Handback Inspection].
19.7 Retention Account
19.7.1
The Secretary of State and the DBFO Co shall procure that the Retention
Account is established with a bank located in the United Kingdom not later
than the date which is 5 years prior to the expected Expiry Date. The
Secretary of State may (if he so chooses) by notice in writing to the DBFO
Co, designate the Retention Account as a ''Charged Retention Account''.
Any interest accrued on any money standing to the credit of the Retention
Account shall be credited to the Retention Account. All sums standing to
the credit of the Retention Account from time to time, including without
limitation any accrued interest, shall be dealt with only in accordance with
the following provisions of this Clause 19 [Handback].
19.7.2
Subject to Clause 19.7.3, from the date which is 5 years prior to the
expected Expiry Date, the Secretary of State shall withhold from any
payment which would otherwise be due to the DBFO Co under this
Agreement in respect of any DBFO Payment a sum equal to 40% of such
payment. The Secretary of State shall procure that such sum is deposited
into the Retention Account on the date on which payment of such sum
would, absent the provisions of this Clause 19.7.2, be due to the DBFO
Co.
19.7.3
When the amount standing to the credit of the Retention Account (including
any accrued interest but less any bank charges and less any deductions
required by any Law to be made from such account) is equal to the
Retention Sum, then subject to Clause 19.7.5.1 the Secretary of State shall
not be entitled to withhold any further sums in accordance with Clause
19.7.2 and the DBFO Co shall be entitled to receive directly the full
amount of any sum due to it under any other provision of this Agreement.
19.7.3A If when the Retention Sum is agreed or determined, the amount already
standing to the credit of the Retention Account (including any accrued
interest but less any bank charges and less any deductions required by Law
to be made from such account) exceeds the Retention Sum, then without
prejudice to Clause 19.7.5.1 the Secretary of State and the DBFO Co
shall, within 14 days after agreement or determination of the Retention
Sum, pay the amount of such excess out of the Retention Account to the
DBFO Co.
19.7.4
If, following the Initial Inspection, it is agreed or determined in accordance
with Clause 19.3 [Renewal Programme] that no Renewal Works are
required, then within 14 days of such agreement or determination the
Secretary of State and the DBFO Co shall pay to the DBFO Co all sums
standing to the credit of the Retention Account (including any accrued
interest but less any bank charges and less any deductions required by any
Law to be made from such account), but without prejudice to the
provisions of Clause 19.7.5.
19.7.5
If, as a result of the Second Inspection:
19.7.5.1 the Renewal Amount is increased, then the provisions of
Clause 19.7.2 shall apply, or shall again apply, until the
amount held in the Retention Account equals the increased
Retention Sum;
19.7.5.2 there is a decrease in the Renewal Amount, such that the total
amount held in the Retention Account (including accrued
interest but less any bank charges and less any deductions
required by any Law to be made from such account) exceeds
the revised Retention Sum, then the Secretary of State and the
DBFO Co shall, within 14 days of the agreement or
determination of the revised Renewal Amount in accordance
with the provisions of Clause 19.5 [Revised Renewal
Programme], pay the amount of such excess out of the
Retention Account to the DBFO Co.
19.7.6
Within 14 days after the issue of a Handback Certificate in accordance
with Clause 19.6.2.1, the Secretary of State and the DBFO Co shall pay
the monies standing to the credit of the Retention Account (including any
accrued interest but less any bank charges and less any deductions
required by any Law to be made from such account) to the DBFO Co.
19.7.7
If the Department's Nominee gives a notice in accordance with Clause
19.6.2.2, then pending the agreement or determination in accordance with
the Disputes Resolution Procedure of all matters referred to in that notice,
the Secretary of State and the DBFO Co shall retain in the Retention
Account whichever is the lesser of:
19.7.7.1 the amount standing to the credit of the Retention Account
(including accrued interest), and
19.7.7.2 the amount stated by the Department's Nominee in the notice
given in accordance with Clause 19.6.2.2 as his estimate of
the cost of completing the Renewal Works and/or of procuring
that the Project Facilities comply in all respects with the
Handback Requirements,
and the balance (if any) of any amount standing to the credit of the
Retention Account (including any accrued interest but less any bank
charges and less any deductions required by any Law to be made from
such account) shall be paid to the DBFO Co in accordance with Clause
19.7.6.
19.7.8
If any sum is retained in the Retention Account in accordance with Clause
19.7.7, then the Secretary of State and the DBFO Co shall continue to
hold such sum in the Retention Account pending the agreement or
determination under the Disputes Resolution Procedure of all matters
raised in the notice given by the Department's Nominee in accordance with
Clause 19.6.2.2.
19.7.9
Within 14 days after the agreement or determination in accordance with the
Disputes Resolution Procedure of the Handback Amount, the Secretary of
State and the DBFO Co shall pay out of the Retention Account to the
Secretary of State an amount equal to the Handback Amount or, if the
amount standing to the credit of the Retention Account is insufficient to
pay the Handback Amount in full, the entire amount (including accrued
interest but less any bank charges and less any deductions required by any
Law to be made from such account) standing to the credit of the Retention
Account. Any remaining sums standing to the credit of the Retention
Account (after deducting the amount payable to the Secretary of State and
any bank charges and any deductions required by any Law to be made
from such account) shall be paid by the Secretary of State and the DBFO
Co out of the Retention Account to the DBFO Co.
19.7.10 If the amount standing to the credit of the Retention Account is less than the
Handback Amount, then the payment of any sum to the Secretary of State
in accordance with Clause 19.7.9 in or towards satisfaction of the
Handback Amount shall not in any way prejudice or affect any other
rights or remedies of the Secretary of State for the purpose of recovering
the remainder of the Handback Amount.
19.7.11
Upon the occurrence of an Event of Default, the Secretary of State may, at
his option and without prejudice to any of his other rights or remedies,
require that any amount standing to the credit of the Retention Account be
applied in payment of any amount due from the DBFO Co to the Secretary
of State or becoming due as a consequence of such Event of Default or
any termination of this Agreement (including, without limitation, any
damages arising from such Event of Default). The DBFO Co and the
Secretary of State shall pay to the Secretary of State out of the Retention
Account such sum or, if the amount standing to the credit of the Retention
Account is insufficient to pay such amount in full, the entire amount
(including accrued interest but less bank charges and less any deductions
required by any Law to be made from such account) standing to the credit
of the Retention Account upon termination of this Agreement. Any
remaining sums standing to the credit of the Retention Account (after
deducting the amount payable to the Secretary of State and any bank
charges and any deductions required by any Law to be made from such
account) shall be paid by the Secretary of State and the DBFO Co out of
the Retention Account to the DBFO Co.
19.7.12
Subject to satisfaction of the conditions set out in Sub-Clauses 19.7.12(a)
and (b) below if, at any time following the establishment of the Retention
Account, the DBFO Co has carried out, in compliance with the
requirements of this Agreement, any of the Renewal Works (as such works
are modified in accordance with Clause 19.5) it shall be entitled to
withdraw from the Retention Account an amount (the "Interim Withdrawal
Sum") equal to 40% of the reasonable cost of carrying out those elements
of the Renewal Works provided that:
(a) after such withdrawal the amount remaining in the Retention Account
is not less than the value of A calculated in accordance with the
following formula:
A = (0.4 x [B+C]) – [D+E]
Where:
B = the value of the Renewal Amount agreed or determined in
accordance with Clause 19.3 as increased (if applicable) in
accordance with Clause 19.5;
C = the reasonable estimated cost of carrying out any further
Maintenance Works or other works of renewal,
reconstruction, repair or reinstatement required to be carried
out in order to procure that the Project Facilities will, on the
Expiry Date, satisfy the Handback Requirements that have
been identified since the later of the date that the Renewal
Amount was last calculated and the date that the last
withdrawal from the Retention Account was made by the
DBFO Co pursuant to this Clause including, for the
avoidance of doubt, any such costs that were included as the
value of C in any previous calculation of value of A;
D = the value of any previous withdrawals from the Retention
Account made by the DBFO Co in accordance with this
Clause;
E = the proposed Interim Withdrawal Sum;
(b) if following the proposed withdrawal the amount in the Retention
Account would be less than the value of A then the DBFO Co shall
be entitled to withdraw so much of the Interim Withdrawal Sum as
would result in the amount remaining in the Retention Account
following such withdrawal being a sum that is not less than the value
of A.
19.7.13
The foregoing provisions of this Clause 19.7 [Retention Account] shall not
apply if, not later than the date which is 5 years prior to the expected
Expiry Date, the DBFO Co procures that a performance guarantee is
provided to the Secretary of State in respect of the DBFO Co's obligations
under this Clause 19 [Handback] (other than this Clause 19.7 [Retention
Account]) by a bank or other institution approved by the Secretary of
State and in form and substance acceptable to him (in each case in his
absolute discretion).
21.
SECRETARY OF STATE'S OBLIGATIONS
21.1 Connecting Roads
Without prejudice to Clause 39.1.15, the Secretary of State shall repair and maintain
the Connecting Roads throughout the Contract Period having regard to the character of
the highway and the traffic which is reasonably to be expected to use it and to the
standard of maintenance appropriate for a highway of that character and used by such
traffic.
21.2 Information
The Secretary of State shall provide to the DBFO Co such information within his
possession or control with respect to the Project as the DBFO Co may reasonably
request to enable it to perform its obligations under this Agreement, provided that the
Secretary of State shall have no obligation to provide any information with respect to
which he is subject to an obligation of confidentiality (whether under any Law or
contract or otherwise).
PART III
RELATIONSHIPS AND MONITORING
22.
REPRESENTATIVES
22.1 The Department's Nominee
22.1.1
The Secretary of State has appointed the Department's Nominee to act as
his agent in connection with all Operations. The Department's Nominee
shall exercise the functions set out in Part 1 of Schedule 7 [Department's
Nominee] and such other functions in respect of this Agreement as the
Secretary of State may notify to the DBFO Co from time to time.
22.1.2
The Secretary of State may at any time, by notice to the DBFO Co, change
the Department's Nominee.
22.1.3
During any period when there is no Department's Nominee, the Secretary
of State shall carry out the functions which would otherwise be performed
by the Department's Nominee.
22.1.4
Except as expressly stated in this Agreement or as otherwise authorised in
writing by or on behalf of the Secretary of State, the Department's
Nominee shall have no authority to relieve the DBFO Co of any of its
obligations under this Agreement.
22.1.5
Except as notified by the Secretary of State to the DBFO Co in writing and
subject to the limitation in Clause 22.1.4 the DBFO Co shall be entitled to
treat any act of the Department's Nominee which is authorised by this
Agreement as being expressly authorised by the Secretary of State, and the
DBFO Co shall not be required to determine whether an express authority
has in fact been given.
22.1.6
Any decision by any Department's Nominee is specific to the circumstances
to which it relates, and shall not be construed as binding on, or limiting
any other decision to be made by, that or any other Department's Nominee,
whether in the same or similar circumstances or otherwise.
22.1.7
For the avoidance of doubt the Department's Nominee shall be entitled to
consult anyone he considers appropriate in connection with the discharge
of his duties in relation to this Agreement.
22.2 DBFO Co's Representative
22.2.1
The DBFO Co shall appoint a competent and qualified person to act as its
agent in connection with this agreement. Such appointment shall be
subject to the approval of the Secretary of State, such approval not to be
unreasonably withheld or delayed.
22.2.2
The DBFO Co's Representative shall have full authority to act on behalf of
the DBFO Co for all purposes of this Agreement. The Secretary of State
and the Department's Nominee shall be entitled to treat any act of the
DBFO Co's Representative in connection with this Agreement as being
expressly authorised by the DBFO Co, and the Secretary of State and the
Department's Nominee shall not be required to determine whether any
express authority has in fact been given.
22.3 Change of Representatives
22.3.1
The Secretary of State may, at any time and from time to time by notice to
the DBFO Co, terminate the appointment of any Department's Nominee or
appoint one or more substitute Department's Nominees. Any such notice
shall specify the date on which such termination or substitution shall have
effect, which date shall, other than in the case of an emergency, be such as
will not cause serious inconvenience to the DBFO Co in the execution of
its obligations hereunder.
22.3.2
Save in the case of death or serious illness, the appointment of the DBFO
Co's Representative shall not be terminated by the DBFO Co without the
prior approval of the Secretary of State. Immediately upon the DBFO
Co's Representative ceasing to act and prior to any termination of the
appointment by the DBFO Co, the DBFO Co shall by notice to the
Secretary of State appoint a substitute. Such appointment shall be subject
to the approval of the Secretary of State.
23.
MANAGEMENT SYSTEMS
23.1 Management Systems and Documentation
23.1.1
The DBFO Co shall procure that all aspects of the Operations are the
subject of Management Systems which comply with the provisions of this
Clause 23 [Management Systems].
23.1.2
The Management Systems referred to in Clause 23.1.1 shall comprise:
23.1.2.1 Quality Management Systems;
23.1.2.2 Environmental Management Systems; and
23.1.2.3 Health & Safety Management Systems.
23.1.3
The Management Systems referred to in Clause 23.1.1 shall comply with:
23.1.3.1 the Technical Requirements (other than the requirements set
out in Clauses 23.1.3.2, 23.1.3.3 and 23.1.3.4);
23.1.3.2 in the case of the Quality Management Systems, BS ENO ISO
9001: 2000 or its successors;
23.1.3.3 in the case of Environmental Management Systems, BS EN
ISO 14001 or its successors;
23.1.3.4 in the case of the Health & Safety Management Systems,
OHAS 18001 or its successors; and
23.1.3.5 Good Industry Practice,
and shall be reflected in appropriate documentation which is appropriate
for the Management System in question, provided always that the Quality
Management Systems shall be reflected in Quality Documentation which
complies with the requirements set out in Part 1 of Schedule 5 [Principles
for Quality Documentation].
23.1.4
Each Quality Management System shall be registered with and certified by
an accredited third party assessment body not later than 18 months after
the date of this Agreement.
23.1.5
The DBFO Co shall not commence or permit the commencement of any
aspect of the Operations before those parts of:
23.1.5.1 the Quality Documentation;
23.1.5.2 the Environmental Management System Documentation; and
23.1.5.3 the Health & Safety Management System Documentation,
which concern such aspect of the Operations have been submitted to the
Department's Nominee under the Review Procedure and there has been no
objection thereto in accordance with the Review Procedure (on the grounds
set out in paragraph 3.9 of Part 2 of Schedule 7 [Review Procedure]).
23.1.6
Where any aspect of the Operations is performed by more than one
contractor or sub-contractor, then the provisions of this Clause 23
[Management Systems] shall apply in respect of each of such contractors
or sub-contractors.
23.1.7
The DBFO Co shall submit to the Department's Nominee in accordance
with the Review Procedure any proposed changes or additions to or
revisions of any of:
23.1.7.1 the Quality Documentation;
23.1.7.2 the Environmental Management System Documentation; or
23.1.7.3 the Health & Safety Management System Documentation, and
no such changes, additions or revisions shall be given effect unless there
has been no objection thereto in accordance with the Review Procedure (on
the grounds set out in paragraph 3.9 of Part 2 of Schedule 7 [Review
Procedure]).
23.1.8
Without limitation to the generality of Clause 23.1.7, the DBFO Co shall
from time to time submit to the Department's Nominee in accordance with
the Review Procedure any changes to:
23.1.8.1 the Quality Documentation;
23.1.8.2 the Environmental Management System Documentation; or
23.1.8.3 the Health & Safety Management System Documentation,
and required for such documentation to continue to reflect Management
Systems which comply with the requirements set out in Clause 23.1.3.
The Department's Nominee may object to any such proposed change only
on the grounds set out in paragraph 3.9 of Part 2 of Schedule 7 [Review
Procedure].
23.1.9
If the DBFO Co fails to propose any change required pursuant to Clause
23.1.8, then the Secretary of State may propose such change and it shall
be dealt with in accordance with the Review Procedure as though it had
been proposed by the DBFO Co.
23.1.10
If there is no objection under the Review Procedure to a part of the
documentation referred to in Clause 23.1.5 or a change, addition or
revision proposed pursuant to Clause 23.1.7, Clause 23.1.8 or Clause
23.1.9, then the relevant documentation shall be amended to incorporate
such part, change, addition or revision.
23.2 Quality Documentation
23.2.1
Without limitation to the generality of Clause 23.1.3, there shall be:
23.2.1.1 Quality Documentation for the DBFO Co describing its
Quality Management System for all aspects of the Operations
meeting the requirements set out in Annex 1 to Part 1 of
Schedule 5 [Quality Documentation for the DBFO Co] (the
"DBFO Co's Quality Documentation");
23.2.1.2 Quality Documentation for the Contractor describing its
Quality Management System for undertaking the activities
covered by the Construction Contract and meeting the
requirements set out in Annex 2 to Part 1 of Schedule 5
[Quality Documentation for the Contractor] (the "Contractor's
Quality Documentation");
23.2.1.3 Quality Documentation for the Designer describing its Quality
Management System for undertaking the activities covered by
the Design Contract and meeting the requirements set out in
Annex 3 to Part 1 of Schedule 5 [Quality Documentation for
the Designer] (the "Designer's Quality Documentation");
23.2.1.4 Quality Documentation for the Operator describing its Quality
Management System for undertaking the activities covered by
the Operation and Maintenance Contract and meeting the
requirements set out in Annex 4 to Part 1 of Schedule 5
[Quality Documentation for the Operator] (the "Operator's
Quality Documentation"); and
23.2.1.5 Quality Documentation for any other party contracting with
the DBFO Co describing the Quality Management System for
undertaking the activities covered by that party's contract with
the DBFO Co and meeting the requirements set out in Annex
5 to Part 1 of Schedule 5 [Other Quality Documentation].
23.2.2
The DBFO Co shall comply with the DBFO Co's Quality Documentation
and shall procure that:
23.2.2.1
the Designer complies with the Designer's Quality
Documentation;
23.2.2.2 the Contractor complies with the Contractor's Quality
Documentation;
23.2.2.3
the Operator complies with the Operator's Quality
Documentation; and
23.2.2.4 any other party contracting with the DBFO Co complies with
that party's Quality Documentation.
23.3 Environmental Management System Documentation
23.3.1
Without limitation to the generality of Clause 23.1.3, there shall be:
23.3.1.1 Environmental Management System Documentation for the
DBFO Co describing the Environmental Management Systems
for undertaking the Operations; and
23.3.1.2 Environmental Management System Documentation for any
other party contracting with the DBFO Co describing the
Environmental Management Systems for undertaking the
activities covered by that party's contract with the DBFO Co.
23.3.2
The DBFO Co shall comply with the Environmental Management System
Documentation referred to in Clause 23.3.1.1 and shall procure any party
contracting with the DBFO Co complies with the Environmental
Management System Documentation that describes the Environmental
Management Systems for undertaking the activities covered by that
contract with the DBFO Co.
23.4 Health & Safety Management System Documentation
23.4.1
Without limitation to the generality of Clause 23.1.3, there shall be:
23.4.1.1 Health & Safety Management System Documentation for the
DBFO Co describing the Health & Safety Management
Systems for undertaking the Operations; and
23.4.1.2 Health & Safety Management System Documentation for any
other party contracting with the DBFO Co describing the
Health & Safety Management System for undertaking the
activities covered by that party's contract with the DBFO Co.
23.4.2
The DBFO Co shall comply with the Health and Safety Management
System Documentation referred to in Clause 23.4.1.1 and shall procure
any party contracting with the DBFO Co complies with the Health and
Safety Management System Documentation that describes the Health and
Safety Management Systems for undertaking the activities covered by that
contract with the DBFO Co.
23.5 Manuals, Plans and Procedures
If any documentation required by Clause 23.1.3 refers to, relies on or incorporates any
manual, plan, procedure or like document then such manual, plan, procedure or other
document or the relevant parts thereof shall (unless the Department's Nominee
otherwise agrees) be submitted to the Department's Nominee at the time that the
relevant documentation or part of or change, addition or revision to the documentation
is submitted in accordance with the Review Procedure, and the contents of such
manual, plan, procedure or other document shall be taken into account in the
consideration of the relevant documentation or part of or change, addition or revision
to the documentation in accordance with the Review Procedure. The Department's
Nominee may require the amendment of any such manual, plan, procedure or other
document to the extent necessary to enable the relevant documentation to satisfy the
requirements of Clause 23.1.3.
23.6 Additional Information
Notwithstanding any other provision of this Clause 23 [Management Systems], the
DBFO Co shall provide to the Department's Nominee such information as the
Department's Nominee may reasonably require to demonstrate compliance with this
Clause 23 [Management Systems].
23.7 Trials and Testing
23.7.1
Where the DBFO Co is required by Table NG 1/1 in the Notes for
Guidance to carry out any calibration, sample, trial or test, such
calibration, sample, trial or test shall be carried out by the Testing
Contractor in accordance with the following provisions of this Clause 23.7
[Trials and Testing].
23.7.2
Save as referred to in Clause 23.7.3, all on-site and off-site calibrations,
samples, trials and tests shall be carried out by laboratories accredited by
the United Kingdom Accreditation Service (''UKAS'') for such
calibrations, samples, trials and tests.
23.7.3
In respect of any calibration, sample, trial or test to be carried out at an on-
site laboratory during an initial period not exceeding 30 days from the first
calibration, sample, trial or test to be carried out at that laboratory:
23.7.3.1 the DBFO Co shall take two samples for calibration, sampling,
trial or testing, one of which shall be calibrated, sampled, tried
and tested at the on-site laboratory; and
23.7.3.2 if the on-site laboratory does not obtain a UKAS accreditation
within such initial period, then the calibration, sample, trial or
test referred to in Clause 23.7.3.1 shall not constitute a valid
calibration, sample, trial or test in accordance with this
Agreement and the second set of samples shall be taken to and
calibrated, sampled, tried or tested at an off-site laboratory
which is UKAS accredited.
23.7.4
For the avoidance of doubt, the DBFO Co shall be responsible, without
limitation, at its own expense for any remedial work required as a result of
any failure to pass any calibration, sample, trial or test required in
accordance with this Agreement or as a result of any laboratory not being
accredited as required by this Agreement.
23.8 DBFO Co Quality Director
The DBFO Co shall at all times, employ a DBFO Co Quality Director, who shall,
irrespective of his other responsibilities, have defined authority for ensuring the
establishment and maintenance of the DBFO Co's Quality Management System and
reporting on the performance of the DBFO Co's Quality Management System. The
identity of the DBFO Co Quality Director (and any replacement) and his job
specification and responsibilities shall be subject to the approval of the Secretary of
State. Without limitation to the foregoing, the job specification and responsibilities of
the DBFO Co Quality Director shall include:
23.8.1
ensuring the effective operation of the DBFO Co's Quality Management
System;
23.8.2
auditing the DBFO Co's Quality Management System and the other
Quality Management Systems referred to in this Clause 23 [Management
Systems] at regular intervals and reporting the findings of such audits to
the Department's Nominee;
23.8.3
reviewing all Quality Management Systems referred to in this Clause 23
[Management Systems] at intervals agreed with the Department's Nominee
to ensure their continued suitability and effectiveness;
23.8.4
liaising with the Department's Nominee on all matters relating to quality
management; and
23.8.5
ensuring that relevant quality records are retained for the retention periods
required by Clause 25 [Records].
23.9 Quality Monitoring
Without limitation to Clause 26 [Monitoring of Performance], the Department's
Nominee may carry out audits of the Management Systems referred to in Clause 23
[Management Systems] (including without limitation all Management Systems
Documentation) at approximate intervals of 3 months and may carry out other periodic
monitoring, spot checks and auditing of such Management Systems.
24.
REPORTS AND INFORMATION
24.1 Required Reports
The DBFO Co shall submit to the Department's Nominee the reports specified in Part
2 of Schedule 14 [Reports], in such numbers as provided therein, which reports shall,
at the Department's Nominee's request, be accompanied by a copy of such report or
any part thereof on computer diskette or other electronic storage device in such form
and compatible with such software as the Department's Nominee shall reasonably
require.
24.2 Form
The form of such Reports shall be agreed with the Department's Nominee, such
agreement not to be unreasonably withheld.
24.3 Further Information
The DBFO Co shall at any time and from time to time at its own cost provide to the
Department's Nominee such information (including any copy correspondence) with
respect to the Project as the Department's Nominee may reasonably require.
24.4 Objections to Reports
24.4.1
If the Department's Nominee considers that any Report either has not been
compiled in accordance with the provisions of this Agreement or has been
based on erroneous information or data, then it may serve a notice to that
effect on the DBFO Co within 28 days of receipt of such Report objecting
to such Report.
24.4.2
If any such objection has not been resolved by agreement between the
Department's Nominee and the DBFO Co within 14 days after the service
of such notice, then either of them may refer the matter to the Disputes
Resolution Procedure.
24.5 Revisions to Reports
If either:
24.5.1
the resolution (whether by agreement or determination under the Disputes
Resolution Procedure) of any objection made pursuant to Clause 24.4.1;
or
24.5.2
the discovery of any Missing Data,
requires any revision or adjustment to any Report, then the DBFO Co shall, as soon as
practicable, issue revised versions of each affected Report and such revised Report
shall for all purposes of this Agreement take the place of the original Report.
24.6 TUPE Information
24.6.1
Where notified in writing by the Secretary of State to do so, the DBFO Co
shall provide TUPE Information to the Secretary of State within 14 days
of such notice.
24.6.2
The Secretary of State may disclose TUPE Information to any Prospective
Tenderer and, if requested in writing by the DBFO Co to do so, shall
ensure that prior to such disclosure the Prospective Tenderer undertakes
not to disclose (unless required by law to do so) the information to any
other person other than a person who:
24.6.2.1 is a servant or agent (including legal adviser) of the
Prospective Tenderer; and
24.6.2.2 has undertaken not to disclose that information unless required
by law to do so.
24.6.3
Where TUPE Information has been provided, the DBFO Co shall:
24.6.3.1 inform the Secretary of State of any change to the information
provided or provide any new TUPE Information not
previously provided;
24.6.3.2 clarify any matter upon which clarification is requested by the
Secretary of State; and
24.6.3.3 co-operate with any other request made by the Secretary of
State concerning the TUPE Information or the DBFO Co's
employees or the employees of its contractors or sub-
contractors,
within 14 days of any such change, discovery of new information, or
receipt of such request.
24.6.4
Subject to Clause 24.6.2 above and unless required by law to do so, the
Secretary of State shall not disclose TUPE Information (or any part of that
information) to any other person.
24.6.5
For the purposes of this Clause 24.6 [TUPE Information], ''TUPE
Information'' means written details of the following to the extent that the
DBFO Co is not prohibited by Legislation from revealing the same:
24.6.5.1 the total number of employees employed by the DBFO Co or
by any of its contractors and sub-contractors whose work (or
any part of it) is work undertaken for the purposes of this
Agreement;
24.6.5.2 in relation to each employee who falls within the scope of
Clause 24.6.5.1 above:
24.6.5.2.1
the employee's date of birth and gender and the
terms of any pension scheme of which the
employee is a member (so that appropriate
pension entitlements can be calculated and
provided for); and
24.6.5.2.2
the employee's salary, job title, normal
working hours, length of service, contractual
period of notice, any pay settlement covering
future dates which has already been agreed
by the DBFO Co and any redundancy
entitlement;
24.6.5.3 information relating to or connected with the employment of
employees falling within the scope of Clause 24.6.5.1 above,
including details of:
24.6.5.3.1
terms and conditions of employment including
terms incorporated from
any collective
agreement;
24.6.5.3.2
any staff handbook or employment policies or
procedures;
24.6.5.3.3
any outstanding or potential liability for past
breaches of such contracts;
24.6.5.3.4
any employee who is on sick, maternity or
other statutory or contractual leave (other
than normal holiday leave) whether paid or
unpaid;
24.6.5.3.5
any outstanding or potential statutory liability
(for example, any claim for unfair dismissal
or under non-discrimination legislation); and
24.6.5.3.6
any other outstanding or potential liability to
be met by the Prospective Tenderer if its
tender is accepted; and
24.6.5.4 such other information as the Secretary of State may
reasonably require in relation to the DBFO Co's employees or
the employees of its contractors (other than the name or as far
as is possible other details which enable any employee to be
identified unless both the DBFO Co and that employee have
consented in writing to the provision of such details).
24.6.6
For the purposes of this Clause 24.6 [TUPE Information], ''Prospective
Tenderer'' means a person who has been or is to be invited to submit a
tender in relation to the provision of works or services of a similar type to
any of those provided by the DBFO Co in relation to the Project Road or
any part of the Project Road.
24.7 Changes to the Workforce
24.7.1
During the 12 month period preceding the expiry of this Agreement or at
any time after either Party has given notice to terminate this Agreement,
the DBFO Co shall not without the prior written agreement of the
Secretary of State:
24.7.1.1 materially amend or offer, promise or agree for the future
materially to amend the terms and conditions of employment
of any employee falling within the scope of Clause 24.6.5.1;
or
24.7.1.2 materially increase or make offers of employment so as
materially to increase the number of employees whose work
(or any part of it) is work undertaken for the purposes of this
Agreement.
24.7.2
In Clause 24.7.1 above, what is material:
24.7.2.1 for the purposes of the phrase ''materially amend'' shall be
determined by considering the individual contract of
employment as a whole; or
24.7.2.2 for the purposes of the phrase ''materially increase'' shall be
determined by considering this Agreement as a whole.
24.8 Parliamentary Questions and Issues
24.8.1
Without prejudice to Clause 24.3, the DBFO Co shall, at its own cost and
within the timescale from time to time prescribed by the Secretary of State
to ensure compliance with all relevant procedures, provide any information
within the possession of the DBFO Co or any company which is at the
relevant time an Associated Company of the DBFO Co or any of their
respective directors, officers, employees, servants or agents which is
requested by the Secretary of State in relation to his statements to or
responses to questions or issues raised by or on behalf of the United
Kingdom Parliament, or any member thereof (provided that the DBFO Co
(or such other company) is not prohibited by any Legislation from
providing the same).
24.8.2
Notwithstanding the provisions of Clause 50 [Confidentiality], the
Secretary of State shall be entitled to disclose in the course of carrying out
his public functions any information to which Clause 24.8.1 applies to the
extent necessary for the purpose of discharging such public function.
24.9 Development Control
Without prejudice to Clause 24.3, the DBFO Co shall, upon request by the Secretary
of State, consider and provide advice and recommendations to the Secretary of State in
respect of all development proposals (whether or not in the immediate vicinity of the
Project Facilities) which might in the opinion of the Secretary of State have a safety or
traffic impact upon the whole or any part of the Project Facilities. Without prejudice
to the generality of the foregoing the DBFO Co shall within such reasonable period
specified by the Secretary of State and using Good Industry Practice:
24.9.1
review the development proposals (including, any planning application and
related papers);
24.9.2
submit to the Secretary of State preliminary, reasoned advice describing in
detail the safety and traffic implications (if any) that such proposals might
have in relation to the Project Facilities;
24.9.3
advise the Secretary of State whether it considers that any further action
(including the commissioning of any further investigations or studies) is
required or desirable in the circumstances as a consequence of such
proposals;
24.9.4
keep the Secretary of State informed of the progress of the development
proposals including the progress of any planning application,
provided that such further action as referred to in Clause 24.9.3 (other than further
review or advice by the DBFO Co which shall be provided on terms to be agreed
between the Secretary of State and the DBFO Co) that the Secretary of State
determines is necessary shall be commissioned by the Secretary of State at his own
expense.
25.
RECORDS
25.1 Required Records
25.1.1
The DBFO Co shall maintain and update those records relating to the
Project set out in Part 1 of Schedule 14 [Records].
25.1.2
The Secretary of State shall be entitled at his own cost within 180 days
after the Commencement Date to deliver up to the DBFO Co the existing
records of the Secretary of State (or copies thereof) in respect of the
Project Facilities (or any part thereof). In such event, the DBFO Co shall
retain such records in safe storage at its own cost and such records shall
thereafter be treated for all purposes as though they were part of the
records referred to in Clause 25.1.1 except that there shall be no obligation
on the DBFO Co to retain the records delivered by the Secretary of State
pursuant to this Clause 25.1.2 in any different or better condition than that
in which they were provided by the Secretary of State. For the avoidance
of doubt this exception shall not alter or diminish the DBFO Co's
obligations regarding the treatment and keeping of new data and records
that are created using information from those records.
25.2 Audit
The records referred to in Clause 25.1 [Required Records] shall be kept in good order
and in such form as to be capable of audit (including by electronic means) by the
Department's Nominee.
The DBFO Co shall make such records available for
inspection by or on behalf of the Secretary of State and the Department's Nominee at
all reasonable times.
25.3 Copies
The Secretary of State and the Department's Nominee shall be entitled to take copies of
all such records free of charge and for that purpose to use such copying facilities as are
maintained at the place where the records are kept.
25.4 Retention of Records
25.4.1
Without prejudice to any Legal Requirement, all records referred to in
Clause 25.1 [Required Records] shall be retained for no less than the
period specified in respect of such records in Part 1 of Schedule 14
[Records] or, if no such period is specified, a period of 7 years after the
end of the Contract Year to which such records relate.
25.4.2
Where the period for the retention of any records (as set out against the
relevant class of records in Part 1 of Schedule 14 [Records]) has expired,
then the DBFO Co shall notify the Secretary of State as to what it intends
to do with such records. If it intends to dispose of them or subsequently
decides to dispose of them, the DBFO Co shall notify the Secretary of
State, and if the Secretary of State shall within 40 days of such notice elect
to receive those records or any part of them the DBFO Co, at its own cost,
shall deliver up such records to the Secretary of State in the manner and at
such location as the Secretary of State shall reasonably specify.
25.4.3
Upon the termination, for whatever reason, of this Agreement, the DBFO
Co shall, at its own cost, deliver up to the Secretary of State, in the
manner and at such location as the Secretary of State shall reasonably
specify, all such records as are referred to in Clause 25.1 [Required
Records] which were in existence at the Termination Date (or, where those
records are required by Law to remain with the DBFO Co, copies thereof)
or such part of such records as the Secretary of State may by notice to the
DBFO Co specify. The Secretary of State shall make available to the
DBFO Co all the records the DBFO Co delivers up pursuant to this
Clause 25.4.3, subject to reasonable notice.
25.4.4
The DBFO Co shall retain in safe storage for a period of not less than 5
years following the Termination Date all such records as are referred to in
Clause 25.4.3 which the Secretary of State does not require to be delivered
up to him. The costs of retaining those records in safe storage shall be
borne:
25.4.4.1 by the DBFO Co where the termination arises as a result of an
Event of Default;
25.4.4.2 by the Secretary of State where the termination arises as a
result of a DBFO Co Termination Event; and
25.4.4.3 in cases of termination other than those governed by Clauses
25.4.4.1 and 25.4.4.2 by the DBFO Co and the Secretary of
State in equal proportions.
25.5 Computer Records
To the extent that the records of the DBFO Co are to be created or maintained on a
computer or other electronic storage device, then the DBFO Co shall agree with the
Department's Nominee a procedure for back-up and off-site storage for copies of such
records and shall adhere to such agreed procedure and shall cause the Contractor, the
Designer, the Operator and its or their sub-contractors to implement and adhere to such
agreed procedure.
26.
MONITORING OF PERFORMANCE
26.1 Breach of this Agreement
26.1.1 The DBFO Co shall notify the Department's Nominee of the occurrence of any
matter specified in Schedule 18 [Penalty Points] and any other breach of its
obligations under this Agreement as soon as practicable after it becomes aware
of such matter but in any case within 7 days of such matter becoming apparent
to the DBFO Co or, if earlier, of the date upon which the same ought
reasonably to have become apparent to the DBFO Co.
26.1.2 If at any time the Department's Nominee is of the opinion that the DBFO Co
has failed to perform any of its obligations under this Agreement (whether or
not such failure has been notified under Clause 26.1.1) and such failure is
capable of remedy, then the Department's Nominee will, unless such
remediable failure relates to either safety, health or security or constitutes an
emergency or constitutes or gives rise to a Nuisance or unless a notice under
this Clause has been served in respect of the same kind of failure within the
preceding one year or where the matter to which the failure relates occurs
annually only then within the preceding two years (each such failure being an
"Immediate Penalty Point Failure"), serve a notice (a "Remedial Notice") on
the DBFO Co requiring the DBFO Co (at its own cost and expense) to remedy
such failure (and any damage resulting from such failure) within a reasonable
period (the "Remedial Period") and for the avoidance of doubt a failure to
perform shall include a failure to remedy as required by this Clause 26.1.2.
26.1.3 Without prejudice to Clause 26.1.2, if an Immediate Penalty Point Failure shall
occur, then the Department's Nominee may (in his absolute discretion) serve a
Remedial Notice on the DBFO Co.
26.2 Penalty Points
26.2.1
If at any time:
26.2.1.1 any Report indicates or the Department's Nominee is notified
or otherwise becomes aware that the DBFO Co has failed to
perform any of its obligations under this Agreement which
failure is incapable of remedy;
26.2.1.2 the Department's Nominee serves a Remedial Notice under
Clause 26.1.2 or 26.1.3 and the DBFO Co fails to remedy the
failure within the Remedial Period; or
26.2.1.3
an Immediate Penalty Point Failure occurs and the
Department's Nominee does not serve a Remedial Notice
under Clause 26.1.3,
then the Department's Nominee may (without prejudice to any other right
or remedy available to the Secretary of State) by notice to the DBFO Co
award points (herein called "Penalty Points") calculated by reference to the
table set out in Schedule 18 [Penalty Points] provided always that any
notice awarding Penalty Points which would result in the DBFO Co
having been awarded in excess of 100 Penalty Points in any 1 year period
shall be counter-signed by a representative of the Secretary of State who is
more senior than the Department's Nominee.
26.2.2
The Parties acknowledge and agree that:
26.2.2.1 Schedule 18 [Penalty Points] provides a list of examples of
matters which may attract Penalty Points but is only by way
of illustration of the matters for which Penalty Points may be
awarded and the severity attributed to such defaults and in no
way restricts the Department's Nominee's right to award
Penalty Points for other failures by the DBFO Co to perform
its obligations under this Agreement (including for the
avoidance of doubt its obligations under the Construction
Requirements) or to enforce other remedies in respect of such
failures. For the avoidance of doubt, the number of points set
out in Schedule 18 [Penalty Points] in respect of a matter is
the maximum number of Penalty Points which may be
awarded in respect of a single breach of the relevant
obligation;
26.2.2.2 in respect of any single failure by the DBFO Co to perform its
obligations under this Agreement (or where a Remedial Notice
has been served, any failure by the DBFO Co to remedy the
failure within the Remedial Period) not listed in Schedule 18,
the number of Penalty Points which may be awarded shall be
consistent with the number of Penalty Points attributable to
breaches of a similar severity which are listed in Schedule 18
and, in any event, shall not exceed 5 Penalty Points (but, in
the case of a failure which is capable of remedy, without
prejudice to the right to award further Penalty Points if the
failure is not remedied); and
26.2.2.3 if a single act or a single failure to act by or on behalf of the
DBFO Co results in a breach of more than one of the DBFO
Co's obligations under this Agreement so that the
Department's Nominee would be entitled to award Penalty
Points in respect of each of those breaches, the maximum
aggregate number of Penalty Points that the Department's
Nominee can award in respect of the breaches caused by such
act shall be the lesser of (i) 12 Penalty Points and (ii) the
aggregate of the numbers of Penalty Points that the
Department's Nominee would have been entitled to award for
each of the breaches that resulted from the relevant single act
or a single failure to act.
26.2.3
The DBFO Co may, within 28 days of receipt of any notice pursuant to
Clause 26.2.1, object to the award of any such Penalty Points or, where
Penalty Points have been awarded in respect of a matter which is not set
out in Schedule 18 [Penalty Points], to the number of such Penalty Points.
If the Department's Nominee and the DBFO Co are unable to reach
agreement on any such matter within 14 days of such objection by the
DBFO Co, either may refer the Dispute for resolution under the Disputes
Resolution Procedure. In respect of any Dispute as to the number of
Penalty Points to be awarded pursuant to Clause 26.2.2, the issue for
decision shall be either how many Penalty Points should be awarded in
comparison with the number of Penalty Points set out in Schedule 18
[Penalty Points] for defaults of equivalent severity or the application of
Clause 26.2.2.3.
26.3 Warning Notices
Without prejudice to any other right or remedy available to the Secretary of State, if at
any time the DBFO Co has committed any material breach of its obligations under this
Agreement or has been awarded a total of 100 or more Penalty Points in any 3 year
period, then the Department's Nominee may give written notice (herein called a
"Warning Notice") to the DBFO Co setting out in general terms the matter or matters
giving rise to such notice and containing a reminder to the DBFO Co of the
implications of such notice. Any such notice shall state on its face that it is a
"Warning Notice" and shall be signed by or on behalf of the Secretary of State by a
representative of the Secretary of State who is more senior than the Department's
Nominee.
26.4 Increased Monitoring
In the event of the DBFO Co either:
26.4.1
being awarded a total of 50 or more Penalty Points in any 1 year period; or
26.4.2
receiving one or more Warning Notices,
the Department's Nominee may (without prejudice to any other right or remedy
available to the Secretary of State) by notice to the DBFO Co increase the level of its
monitoring of the DBFO Co until such time as the DBFO Co shall have demonstrated
to the reasonable satisfaction of the Department's Nominee that it will perform and is
capable of performing its obligations under this Agreement. The notice to the DBFO
Co shall specify the additional measures to be taken by the Department's Nominee in
monitoring the DBFO Co in response to the matters which led to such Penalty Points
being awarded or Warning Notice sent. The DBFO Co shall compensate the Secretary
of State for all costs incurred by him as a result of such increased level of monitoring
(including, without limitation, the relevant administrative expenses of the Secretary of
State, including an appropriate sum in respect of general staff costs and overheads).
26.5 Step-In Rights
26.5.1
Without prejudice to Clause 26.5.2, if at any time the Department's
Nominee serves a notice under Clause 26.1.2 and the DBFO Co fails to
remedy the failure within the Remedial Period, then the Secretary of State
may (without prejudice to any other right or remedy available to him)
himself take such steps as necessary to remedy such failure or engage
others to take such steps, and the provisions of Clauses 26.5.3 and 26.5.4
shall apply.
26.5.2
Notwithstanding any other provision of this Agreement and without
prejudice to any other right or remedy of the Secretary of State:
26.5.2.1 in the event that the Secretary of State considers that a breach
by the DBFO Co of an obligation under this Agreement may
create an immediate and serious threat to public safety; or
26.5.2.2 in the event of an emergency; or
26.5.2.3 where it appears to the Secretary of State necessary or
expedient in the interests of road safety; or
26.5.2.4 where it appears to the Secretary of State necessary in order to
secure the carrying out of any statutory function,
the Secretary of State may give notice requiring the DBFO Co forthwith to
take such steps as he considers necessary or expedient to mitigate or
preclude such state of affairs. In the event that the DBFO Co shall fail to
take such steps as the Secretary of State may think necessary and within
such time as the Secretary of State shall think fit, then the Secretary of
State may take such steps himself or engage others to take such steps, and
the provisions of Clauses 26.5.3 and 26.5.4 shall apply.
26.5.3
To the extent that the Parties shall agree, or it shall be determined under the
Disputes Resolution Procedure, that the DBFO Co had not failed to
perform its obligations under this Agreement (in the case of any action
taken pursuant to Clause 26.5.1) or the Secretary of State was not
reasonable in requiring the DBFO Co to take such steps as are referred to
in Clause 26.5.2 or, in the case of Clause 26.5.2.1, that no such breach
had occurred or, in the case of Clause 26.5.2.4, such steps were not
necessary in order to secure the carrying out of any statutory function (any
such determination to be made on the basis of the facts available to the
Secretary of State at the time he took or required such action to be taken),
then the provisions of Annex 3 to Part 1 of Schedule 12 [Compensation
Events] shall apply.
26.5.4
Except in the circumstances referred to in Clause 26.5.3, the DBFO Co
shall reimburse the Secretary of State for all costs incurred by him in
taking the steps or engaging others to take the steps referred to in Clause
26.5.1 or Clause 26.5.2 (including, without limitation, the relevant
administrative expenses of the Secretary of State, including an appropriate
sum in respect of general staff costs and overheads).
26.6 Removal of Personnel
The Department's Nominee may require the DBFO Co to remove forthwith from the
Site and Adjacent Areas any person who, in the opinion of the Department's Nominee,
misconducts himself or is incompetent or negligent in the proper performance of his
duties, or whose presence on the Site or Adjacent Areas is otherwise considered by the
Department's Nominee to be undesirable, and such person shall not be again allowed
upon the Site or the Adjacent Areas without the consent of the Department's Nominee.
26.7 Persistent Neglect
26.7.1
If the Department's Nominee reasonably considers that the DBFO Co is
neglecting persistently to comply with any of its obligations under this
Agreement and provided that the Department's Nominee shall have issued
Penalty Points in respect of such failure to perform such obligation in
accordance with Clause 26.2:
26.7.1.1 on at least 3 separate occasions within the previous 48 months,
where the obligation in question only falls to be performed
once per year;
26.7.1.2 on at least 3 separate occasions within the previous 24 month
period where the obligation in question only falls to be
performed twice per year;
26.7.1.3 on at least 6 separate occasions within the previous 24 month
period where the obligation in question falls to be performed
quarterly;
26.7.1.4 on at least 9 separate occasions within the previous 12 month
period where the obligation in question falls to be performed
monthly;
26.7.1.5 on at least 9 separate occasions within the previous 6 month
period where the obligation in question falls to be performed
fortnightly;
26.7.1.6 on at least 9 separate occasions within the previous 3 month
period, where the obligation falls to be performed weekly;
26.7.1.7 on at least 15 separate occasions within the previous month
(provided that each such occasion relates to a failure
occurring on a different day within such month), where the
obligation falls to be performed on a daily or continuous
basis; or
26.7.1.8 where the frequency of performance of an obligation falls
between any categories listed in Clauses 26.7.1.1 to 26.7.1.7
above, on that number of occasions determined in accordance
with Clause 26.7.1A within a period determined in accordance
with Clause 26.7.1A,
then the Department's Nominee may (without prejudice to any other right
or remedy available to the Secretary of State) issue a Persistent Neglect
Notice in respect of such persistent neglect.
26.7.1A Where the frequency of performance of an obligation (the "Relevant
Obligation") falls between the categories listed in Clauses 26.7.1.1 to
26.7.1.7, then for the purposes of Clause 26.7.1.8 the number of occasions
upon which Penalty Points shall have been issued and the period during
which such Penalty Points shall have been issued in respect of such
Relevant Obligation in order for the Department's Nominee to issue a
Persistent Neglect Notice shall each be determined on a pro rata basis
(rounded up to the nearest whole number) by reference to frequencies of
performance, the numbers of Penalty Points and periods referred to in
Clauses 26.7.1.1 to 26.7.1.7 and the frequency with which the Relevant
Obligation falls to be performed.
26.7.2
Within 28 days of receipt of a Persistent Neglect Notice the DBFO Co shall
issue to the Department's Nominee:
26.7.2.1 where the Persistent Neglect Notice relates to breach of an
obligation which such breach is capable of remedy, a Persistent
Neglect Remedy Programme for the DBFO Co to remedy such
breach within a reasonable time;
26.7.2.2 a Persistent Neglect Notice Plan; and
26.7.2.3 a Persistent Neglect Undertaking.
26.7.3
Within 14 days of receipt of a Persistent Neglect Remedy Programme in
accordance with Clause 26.7.2, the Department's Nominee shall notify
the DBFO Co whether or not he considers the Persistent Neglect Remedy
Programme to be reasonable. If the Department's Nominee does not so
notify the DBFO Co then the Persistent Neglect Remedy Programme
issued by the DBFO Co in accordance with Clause 26.7.2 shall be deemed
agreed. Where the Department's Nominee notifies the DBFO Co that he
does not consider the Persistent Neglect Remedy Programme to be
reasonable then the Parties shall use their reasonable endeavours to agree
any necessary amendments to the Persistent Neglect Remedy Programme.
In the absence of agreement within 7 days of the Department's Nominee's
notification then either Party may refer the matter for resolution under the
Disputes Resolution Procedure.
26.7.4
Within 14 days of receipt of a Persistent Neglect Notice Plan in accordance
with Clause 26.7.2, the Department's Nominee shall notify the DBFO Co
whether or not he considers the Persistent Neglect Notice Plan to be
reasonable. If the Department's Nominee does not so notify the DBFO Co
then the Persistent Neglect Notice Plan issued by the DBFO Co in
accordance with Clause 26.7.2 shall be deemed agreed. Where the
Department's Nominee notifies the DBFO Co that he does not consider the
Persistent Neglect Notice Plan to be reasonable then the Parties shall use
their reasonable endeavours to agree any necessary amendments to the
Persistent Neglect Notice Plan. In the absence of agreement within 7 days
of the Department's Nominee's notification then either Party may refer the
matter for resolution under the Disputes Resolution Procedure.
26.7.5
Where a Persistent Neglect Notice issued by the Department's Nominee
relates to breach of an obligation which such breach is capable of remedy,
the DBFO Co shall remedy such breach in accordance with the Persistent
Neglect Remedy Programme agreed or determined in accordance with
Clause 26.7.3.
26.7.6
The DBFO Co shall implement any Persistent Neglect Notice Plan agreed
or determined in accordance with Clause 26.7.4.
27.
STATUTORY POWERS
27.1 Application
Whenever the exercise by the Secretary of State of any statutory power is essential to
enable the DBFO Co to perform any obligation under this Agreement, the provisions of
this Clause 27 [Statutory Powers] shall apply, save where the provisions of Clauses
8.6.3 and 8.6.4 and/or Clause 28.4.4 and/or Clause 29.3.4 and/or Part 3 of Schedule
13 [Subsequent Schemes] and/or Schedule 22 [Security of the Site] apply.
27.2 Procedure
27.2.1
If the DBFO Co believes that the exercise by the Secretary of State of any
statutory power is essential to enable the DBFO Co to perform any
obligation under this Agreement, the DBFO Co shall give notice to that
effect to the Secretary of State.
27.2.2
Any notice given by the DBFO Co in accordance with Clause 27.2.1 shall:
27.2.2.1 clearly specify the action requested of the Secretary of State,
the duty of the DBFO Co under this Agreement in respect of
which such action is requested and the reasons why such
action by the Secretary of State is required;
27.2.2.2 indicate the time by which the requested action is required; and
27.2.2.3 set out any recommendation by the DBFO Co in respect of the
requested action.
27.2.3
Within 21 days after receipt of a notice given in accordance with Clause
27.2.1, the Secretary of State shall acknowledge receipt of such notice and
shall give his good faith estimate of the date on which he will respond on
the merits of the request, provided that no such estimate shall be binding
on the Secretary of State.
27.2.4
The Secretary of State shall respond to the merits of the request contained
in the notice given in accordance with Clause 27.2.1 as soon as
reasonably practicable in the circumstances, taking into consideration,
inter alia, any requirement for consultation with the public or other
interested parties in connection with such request.
27.3 No Fetter on Discretion
The Secretary of State shall consider on its merits in accordance with his statutory
duties any request for action contained in a notice given in accordance with Clause
27.2.1. Without in any way limiting the discretion of the Secretary of State in
responding to any such request, the Secretary of State shall, in reaching any such
decision, give consideration, inter alia, to the matters set out in Clause 27.4 [Relevant
Considerations]. The decision of the Secretary of State on the merits of the request
shall not be subject to review under the Disputes Resolution Procedure.
27.4 Relevant Considerations
The considerations referred to in Clause 27.3 [No Fetter on Discretion] are the
following:
27.4.1
whether the Secretary of State has the statutory power to take the action
requested;
27.4.2
whether there is any alternative course available to the DBFO Co (and the
cost of such alternative course) which would not require action by the
Secretary of State;
27.4.3
the effect the requested action would have on the interests of any third
parties;
27.4.4
whether the timing and substance of the request is such as to enable the
Secretary of State to consider the merits of the request in accordance with
the principles of procedural fairness (taking into account, where
appropriate, the necessity or desirability of consultation with other
interested parties); and
27.4.5
whether the action requested would have any implications for safety, either
of Users or of any other third parties.
27.5 Refusal of Request
27.5.1
Subject to Clauses 27.5.2 and 27.5.4, if, in the exercise of his discretion,
the Secretary of State refuses to take the action requested, then the DBFO
Co shall be relieved from liability under this Agreement to the extent that
by reason of such refusal the DBFO Co is not able to perform the
obligations identified in the request contained in the notice given in
accordance with Clause 27.2.1.
27.5.2
The DBFO Co shall be relieved of its liability in accordance with Clause
27.5.1 only if it has taken all steps necessary to mitigate the effects of the
refusal of the Secretary of State to take the requested action.
27.5.3
If the failure to take any action requested in a notice given in accordance
with Clause 27.2.1 renders impossible (and not merely more expensive)
the DBFO Co's performance of this Agreement (as a whole) or has a
fundamental effect on the rights or obligations of the DBFO Co under this
Agreement, then following:
27.5.3.1 consultation for a period of not less than 120 days from the
date of the Secretary of State's response under Clause 27.2.4
to reach a solution acceptable to both Parties; and
27.5.3.2 (if applicable) such period as is reasonably necessary for the
implementation of such solution,
the DBFO Co shall be entitled to terminate this Agreement in accordance
with Clause 42.4 [Termination under Clause 27].
27.5.4
For the avoidance of doubt any refusal to take action to
promote a Subsequent Scheme shall not relieve the DBFO Co
of any liability under this Agreement.
27.6 Traffic Regulation Orders
Whether or not Clause 27.1 [Application] applies, the DBFO Co (at its own cost) shall
be responsible for, and shall provide to the Secretary of State, all data gathering,
document preparation, administrative and other support and liaison (including
preparation of plans, publication of notices, administrative steps required to serve
notices and serving notices) in such manner and at such times as to enable the
Secretary of State to make any traffic regulation order in respect of the Project Road.
28.
STATUTORY UNDERTAKERS
28.1 Definitions
For the purpose of this Clause 28 [Statutory Undertakers]:
28.1.1
''Apparatus'' means all apparatus (including apparatus as defined in the 1991
Act) located in, on, under, over, across, along or adjacent to the Site or
Adjacent Areas;
28.1.2
''Authorised Functions'' means each of the functions conferred on the
Secretary of State by the 1991 Act which the DBFO Co is authorised by
the Secretary of State from time to time to exercise pursuant to Clause
28.4.1 or 28.4.5, as the case may be;
28.1.3
''Authorisation Period'' means:
28.1.3.1
(save as provided in Clause 28.1.3.2) the period commencing
on the O&M Commencement Date and expiring 10 years
therefrom or on the termination of this Agreement, whichever
is earlier;
28.1.3.2
in relation to those parts of the Project Facilities shown as
New Road, Adjacent Areas Temporary Adjacent Areas and
Existing Areas on drawings numbers A249/03/02-001 to 004
(inclusive) set out in Part 7 of Schedule 3 [Drawings], but
only in relation to those functions listed in Paragraph 4 of Part
1 of Schedule 19 and only to the extent that such functions are
exercisable in relation to those areas, the period commencing
on the date of this Agreement and expiring 10 years herefrom
or on the termination of this Agreement, whichever is earlier.
28.1.4
''Bridge Authority'' has the meaning given in Section 88 (1)(b) of the 1991
Act;
28.1.5
''Codes of Practice'' means the codes of practice issued from time to time
pursuant to Part III of the 1991 Act;
28.1.6
''Diversionary Works'' means works involving the diversion, change in level,
protection or removal of Apparatus or other works in relation to Apparatus
which are necessary to facilitate the execution of the Operations;
28.1.7
''Highway Authority'' has the same meaning as ascribed in the Highways
Act;
28.1.8
''Major Highway Works'' means both major highway works as defined in
Section 86(3) of the 1991 Act and major bridge works as defined in Section
88 (2) of the 1991 Act;
28.1.9
''the Regulations'' means regulations issued pursuant to Part III of the 1991
Act;
28.1.10 ''Renewed Authorisation Period'' has the meaning given in Clause 28.4.5.2;
28.1.11 ''Street Authority'' has the meaning given in Section 49(1) of the 1991 Act;
28.1.12 ''Street Works Licences'' has the meaning given in Section 50(1) of the 1991
Act;
28.1.13 ''Sample Inspections'' has the meaning given to it in the Code of Practice
entitled Code of Practice for Inspections;
28.1.14 ''Traffic Authority'' has the meaning given in Section 121A of the Road
Traffic Regulation Act 1984;
28.1.15 ''Works for Road Purposes'' has the meaning given in Section 86(2) of the
1991 Act;
28.1.16 ''1991 Act'' means the New Roads and Street Works Act 1991;
28.1.17 ''1995 Order'' means the Contracting Out (Highway Functions) Order 1995
(SI 1995/1986);
28.1.18 ''affected'' or ''affecting'' shall be regarded as including the meaning given to
''affected'' in Section 105(4) of the 1991 Act; and
28.1.19 ''Street Works Register'' means the register referred to in Section 53(1) of the
1991 Act.
28.2 Primary Duty of Co-ordination
28.2.1 The DBFO Co covenants with the Secretary of State to use its best endeavours
to co-ordinate the execution of works of all kinds affecting the Project
Facilities and the surrounding highway network:
28.2.1.1 in the interests of safety;
28.2.1.2 so as to minimise the inconvenience to persons using the Project
Facilities having regard in particular to the needs of people with
disabilities; and
28.2.1.3 so as to protect the structure of the Project Facilities and the integrity
of Apparatus,
and in accordance with all relevant Codes of Practice.
28.2.2 The DBFO Co shall comply with such directions as to the co-ordination of
works of all kinds, including the co-ordination of works on streets other than
the Project Road, as the Secretary of State may give from time to time
consistent with Good Industry Practice.
28.3 The 1991 Act
28.3.1 In constructing and operating the Project Facilities and otherwise performing
the Operations, the DBFO Co shall comply with the 1991 Act, the
Regulations, the Codes of Practice and any requirements of Statutory
Undertakers notified to the DBFO Co or the Secretary of State pursuant to the
1991 Act.
28.3.2 The DBFO Co shall notify the Secretary of State of all proposed Major
Highway Works, Diversionary Works and Works for Road Purposes
necessary in connection with the Operations and shall contract, commit or
compromise in respect of such works with Statutory Undertakers and carry out
any such works in accordance with the 1991 Act, the Regulations, the Codes
of Practice and the provisions of this Clause 28 [Statutory Undertakers].
28.3.3 The DBFO Co will be responsible for all costs of, and shall make all payments
due to, Statutory Undertakers in connection with any Diversionary Works.
28.3.4 Subject to Clauses 28.3.5 and 28.6.2 the Secretary of State will pay to the
DBFO Co within 28 days of receipt any monies actually received by him from
any Statutory Undertaker in respect of the Project Facilities pursuant to any
provision of the 1991 Act, the Regulations or the Codes of Practice, other than
fees relating to Sample Inspections.
28.3.5 If a contribution is made to the Secretary of State pursuant to Section 78 of the
1991 Act then payment will only be made to the DBFO Co if the contribution
relates to costs actually incurred or likely to be incurred by the DBFO Co
during the Pre-Commencement Period or the Contract Period and the DBFO
Co shall pay to the Secretary of State any contribution received if the
contribution does not relate to the DBFO Co's costs incurred or likely to be
incurred during the Pre-Commencement Period or the Contract Period.
28.3.6 At the request of the DBFO Co, and subject to an indemnity for all costs
including administrative costs, general staff costs and overheads, the Secretary
of State will use his reasonable endeavours to recover all damages, losses,
charges, fees, contributions and costs due to the Secretary of State as Street
Authority in respect of the Project Facilities pursuant to the 1991 Act, the
Regulations or Codes of Practice. Subject to the last sentence of this Clause
28.3.6, any such damages, losses, charges, fees, contributions and costs (but
excluding any fees relating to Sample Inspections and excluding any damages,
losses, charges, fees, contributions and costs recovered that relate to the period
before or after the Contract Period and/or relate to costs and expenses directly
incurred by the Secretary of State himself as Street Authority) shall be for the
account of the DBFO Co whether recovered by the Secretary of State directly
or by the DBFO Co acting under the Secretary of State's authorisation
pursuant to Clause 28.4.1. Without prejudice to Clause 28.3.4, the Secretary
of State will pay to the DBFO Co within 28 days of receipt any monies
actually received by him directly pursuant to this Clause 28.3.6 less the costs
in respect of which the Secretary of State is indemnified by the DBFO Co
pursuant to this Clause 28.3.6.
28.3.7 Other than where the DBFO Co keeps the Street Works Register pursuant to
Clause 28.4 [Contracting Out of Functions] the DBFO Co shall provide to the
keeper of the Street Works Register such information as may be prescribed
pursuant to Sections 53 and 54 of the 1991 Act and such other information of
which it becomes aware as is eligible for registration and shall make any
payment or payments to such party as the Secretary of State may require
pursuant to Section 53(5) of the 1991 Act, and the DBFO Co shall maintain,
at all times, a terminal linked to the Street Works Register for the purposes of
giving and receiving notices and information affecting the Project Road and the
surrounding road network.
28.3.8 Subject to the provisions of Section 50 and Schedule 3 of the 1991 Act, the
Secretary of State will, as soon as is reasonably practicable after receiving a
request from the DBFO Co, grant a Street Works Licence to the DBFO Co in
respect of any specified part of the Project Road on the following terms:
28.3.8.1 it shall be non-assignable;
28.3.8.2 it shall not inure beyond the shorter of the Contract Period and the
period during which the Secretary of State is Street Authority in
respect of the Project Road; and
28.3.8.3 it shall only be exercisable after consultation with any affected
Relevant Authority or person owning Apparatus.
28.3.9 [Not used.]
28.3.10
The DBFO Co shall notify the Secretary of State of any possible offence
committed or likely to be committed by a Statutory Undertaker under the 1991
Act of which the DBFO Co is or should reasonably be aware and shall provide
such information relating to such offence as may be specified by the Secretary
of State.
28.3.11
Without limitation to Clause 3.4 [Standard of Performance] the
DBFO Co will, at all times, assist and facilitate the Secretary of State in
carrying out, and shall take all steps necessary to ensure that the Secretary of
State is able to comply with, his duties under the 1991 Act, the Regulations
and the Codes of Practice.
28.3.12
The DBFO Co shall take such actions as are appropriate to
inform all interested parties of its role on behalf of the Secretary of State
pursuant to Clauses 28.4 [Contracting Out of Functions] and 28.5
[Management of Operations affecting Apparatus].
28.4 Contracting Out of Functions
28.4.1 Subject to the provisions of this Clause 28.4 [Contracting Out of Functions]
and pursuant to the 1995 Order, the DBFO Co is hereby authorised by the
Secretary of State as Street Authority, Highway Authority, Bridge Authority
and Traffic Authority (as the case may be) for the Authorisation Period to
exercise in respect of the Project Facilities each of the functions of the
Secretary of State listed in Part 1 of Schedule 19 [Authorised Functions]. The
DBFO Co shall take such actions as are necessary for the efficient transfer of
any such function to the DBFO Co.
28.4.2 From the O&M Commencement Date and for as long as any authorisation
made under this Clause 28.4 [Contracting Out of Functions] is effective, the
DBFO Co shall exercise properly and fully each of the Authorised Functions
in respect of the Project Facilities.
28.4.3 The authorisation made under this Clause 28.4 [Contracting Out of Functions]
in respect of an Authorised Function is made on the following terms:
28.4.3.1 it shall be non assignable; and
28.4.3.2 the DBFO Co shall not delegate any such Authorised Function
provided that this will not prohibit the DBFO Co from sub-
contracting the performance of any works or services arising as a
result of the DBFO Co's exercise of any such Authorised Function.
28.4.4 On or before the expiry of the Authorisation Period (or any Renewed
Authorisation Period) in respect of an Authorised Function the DBFO Co may
request the Secretary of State to renew the authorisation for any period not
exceeding 10 years from the date of renewal. The decision whether or not to
renew the authorisation in whole or in part shall be in the absolute discretion
of the Secretary of State. The decision of the Secretary of State shall not be
subject to review under the Disputes Resolution Procedure.
28.4.5 If, following a request under Clause 28.4.4, the Secretary of State decides to
renew the authorisation, he shall confirm the same by notice in writing to the
DBFO Co. Such notice shall specify:
28.4.5.1 the function of the Secretary of State which the DBFO Co is
authorised to exercise in respect of the Project Facilities; and
28.4.5.2 the authorisation period, which shall not exceed the shorter of the
Contract Period and 10 years from the date of the renewal (the
''Renewed Authorisation Period'').
28.4.6 If the 1995 Order or any replacement order made under Sections 69 and 77 of
the Deregulation and Contracting Out Act 1994 shall cease for whatever
reason to be in effect, the DBFO Co may request the Secretary of State to take
such action as necessary to bring into effect a further order in respect of part
or all of the functions the subject of the original order. The provisions of
Clauses 27.2 [Procedure], 27.3 [No Fetter on Discretion] and 27.4 [Relevant
Considerations] (but for the avoidance of doubt not Clause 27.5 [Refusal of
Request]) shall apply mutatis mutandis to any such request.
28.4.7 In exercising the Authorised Functions the DBFO Co shall act in accordance
with the principles of administrative law which govern the conduct of the
Secretary of State and, without prejudice to the generality of the foregoing,
shall:
28.4.7.1 obey all relevant Legal Requirements, and administrative and
procedural requirements;
28.4.7.2 not take any decisions or actions which may be considered perverse
and liable to be quashed; and
28.4.7.3 obey the rules of natural justice.
28.4.8 For so long as any authorisation under this Clause 28.4 [Contracting Out of
Functions] is effective the DBFO Co shall include in the Monthly Report
details of all actions taken by the DBFO Co pursuant to the Authorised
Functions, including without limitation details of:
28.4.8.1 all notices given and received;
28.4.8.2 all directions and consents given to Statutory Undertakers;
28.4.8.3 all agreements, commitments or compromises reached with Statutory
Undertakers with regard to Diversionary Works; and
28.4.8.4 any arbitration proceedings commenced or proposed.
28.4.9 Without prejudice to the generality of Clause 28.4.8, the DBFO Co shall
provide the Department's Nominee with copies of all consents and directions
given by the DBFO Co and all notices given and received by the DBFO Co
pursuant to the 1991 Act.
28.4.10
If the DBFO Co fails to exercise any Authorised Function in the manner set
out in Clause 28.4.7 then the Secretary of State may withdraw or suspend the
authorisation in respect of such Authorised Function. Such suspension or
withdrawal shall not be treated by the DBFO Co as a repudiation by the
Secretary of State.
28.4.11
If an authorisation under this Clause 28.4 [Contracting Out of Functions] is
revoked by the Secretary of State, other than in accordance with Clause
28.4.10, then for the purposes of Section 73 of the Deregulation and
Contracting Out Act 1994 ''relevant contract'' shall mean this Clause 28.4
[Contracting Out of Functions] and no other provision of this Agreement.
28.4.12
On the expiry, revocation, withdrawal or suspension of an authorisation
under this Clause 28.4 [Contracting Out of Functions], the DBFO Co shall
take such actions as are necessary for the efficient transfer of any such
function to such person as the Secretary of State may designate.
28.5 Management of Operations Affecting Apparatus
28.5.1 If, at any time an authorisation under Clause 28.4 [Contracting Out of
Functions] is revoked or expires (and is not renewed) the DBFO Co shall be
released from exercising and shall not exercise the relevant Authorised
Function. Subject to Clause 28.5.3, the DBFO Co shall instead perform those
services set out in Part 2 of Schedule 19 [Services in Relation to the Secretary
of State's Functions] (if any) which relate to the same function of the Secretary
of State as the Authorised Function which has been revoked or has expired.
28.5.2 In addition to its obligations under Clause 28.4 [Contracting Out of Functions]
or Clause 28.5.1 (as the case may be) but subject to Clause 28.5.3, the DBFO
Co shall throughout the Contract Period perform the services set out in Part 3
of Schedule 19 [Other Services].
28.5.3 In carrying out its services pursuant to this Clause 28.5 [Management of
Operations Affecting Apparatus], the DBFO Co shall not contract with, enter
into binding commitments with, compromise with, give a notice of intention to
proceed to, impose obligations upon, issue Street Works Licences to or seek to
recover costs from Statutory Undertakers or carry out works affecting
Statutory Undertakers without the prior written approval of the Secretary of
State.
28.5.4 For the purposes of Clause 28.5.3, the approval of the Secretary of State may
be given from time to time either in terms relating to a particular contract,
commitment, compromise or works or upon terms relating to particular classes
of contracts, commitments, compromises or works.
28.5.5 Actions taken by the DBFO Co pursuant to this Clause 28.5 [Management of
Operations Affecting Apparatus] and Part 2 or Part 3 of Schedule 19 shall not
in any way limit or fetter the discretion of the Secretary of State in the
discharge or exercise of his duties or powers. The decision of the Secretary of
State on the merits of any recommendation made by the DBFO Co pursuant to
this Clause 28.5 [Management of Operations Affecting Apparatus] and Part 2
or Part 3 of Schedule 19 shall not be subject to review under the Disputes
Resolution Procedure.
28.6 The Secretary of State's Responsibility
28.6.1 Without prejudice to the DBFO Co's obligations pursuant to Clause 28.3.12 the
Secretary of State shall:
28.6.1.1 from time to time, at the request of the DBFO Co, notify Statutory
Undertakers that, subject to the terms and conditions set out in this
Clause 28 [Statutory Undertakers], the DBFO Co will be exercising
the Authorised Functions or will be performing the services set out
in Clause 28.5 [Management of Operations affecting Apparatus]
(as the case may be); and
28.6.1.2
notify the DBFO Co promptly of any Statutory Undertaker's
requirements or notices or any notices from Street Authorities for
streets other than the Project Road (but which affect the Project
Road) which he receives pursuant to the 1991 Act, the Regulations
or the Codes of Practice.
28.6.2 If works are necessary as a consequence of an event described in Section 82(2)
of the 1991 Act then those works shall be considered as a Department's
Change and any sums received by the Secretary of State from any Statutory
Undertaker shall not be subject to Clause 28.3.4.
29.
OTHER FUNCTIONS OF THE SECRETARY OF STATE
29.1 Definitions
For the purpose of this Clause 29 [Other Functions of the Secretary of State]:
29.1.1 ''Highway Authority'' has the same meaning as ascribed in the Highways Act;
29.1.2 ''Statutory Provisions'' means the provisions of the statutes and regulations set
out in Schedule 20 [Contracted Out Functions of the Secretary of State] and
(subject to Clause 29.3.7.3) the provisions of any statute or regulation which
the Secretary of State has authorised the DBFO Co to exercise pursuant to
Clause 29.3.7;
29.1.3 ''Third Party'' means any third party (but excluding any Statutory Undertaker to
the extent that the provisions of Clause 28 [Statutory Undertakers] apply in
relation to such Statutory Undertaker in any particular case);
29.1.4 ''Third Party Authorised Functions'' means each of the functions conferred on
the Secretary of State by the Statutory Provisions, which the DBFO Co is
authorised by the Secretary of State from time to time to exercise pursuant to
Clause 29.3.1, Clause 29.3.5 or (subject to Clause 29.3.7.3) Clause 29.3.7;
29.1.5 ''Third Party Authorisation Period'' means, in the case of an authorisation
pursuant to Clause 29.3.1 and subject to Clause 29.3.2, the period
commencing on the O&M Commencement Date and expiring 10 years
therefrom or on the termination of this Agreement, whichever is earlier, or, in
the case of an authorisation pursuant to Clause 29.3.7.3, the period specified
in the notice given by the Secretary of State pursuant to Clause 29.3.7.2.2;
29.1.6 ''Third Party Renewed Authorisation Period'' has the meaning given in Clause
29.3.5.2; and
29.1.7 ''1995 Order'' means the Contracting Out (Highway Functions) Order 1995 (SI
1995/1986).
29.2 General
29.2.1
Without limitation to Clause 3.4 [Standard of Performance], the DBFO Co
will, at all times, assist and facilitate the Secretary of State in carrying out,
and shall take all steps necessary to ensure that the Secretary of State is
able to comply with, his duties under the Statutory Provisions.
29.2.2
The DBFO Co shall take such actions as are appropriate to inform all
interested parties of its role on behalf of the Secretary of State pursuant to
Clauses 29.3 [Contracting Out of Functions] and 29.4 [Management of
Operations].
29.3 Contracting Out of Functions
29.3.1 Subject to the provisions of this Clause 29.3 [Contracting Out of Functions] and
pursuant to the 1995 Order, the DBFO Co is hereby authorised by the Secretary of
State as Highway Authority and as Minister under the Parish Councils Act 1957 (as
the case may be) for the Third Party Authorisation Period to exercise in respect of the
Project Facilities each of the functions of the Secretary of State listed in Schedule 20
[Contracted Out Functions of the Secretary of State]. The DBFO Co shall take such
actions as are necessary for the efficient transfer of any such function to the DBFO Co.
29.3.2 From the O&M Commencement Date and for as long as any authorisation made under
this Clause 29.3 [Contracting Out of Functions] is effective, the DBFO Co shall
exercise properly and fully each of the Third Party Authorised Functions in respect of
the Project Facilities.
29.3.3 The authorisation made under this Clause 29.3 [Contracting Out of Functions] in
respect of a Third Party Authorised Function is made on the following terms:
29.3.3.1 it shall be non assignable; and
29.3.3.2 the DBFO Co shall not delegate any such Third Party Authorised Function
provided that this will not prohibit the DBFO Co from sub-contracting the
performance of any works or services arising as a result of the DBFO Co's
exercise of any such Third Party Authorised Function.
29.3.4 On or before the expiry of the Third Party Authorisation Period (or any Third Party
Renewed Authorisation Period) in respect of a Third Party Authorised Function the
DBFO Co may request the Secretary of State to renew the authorisation for any period
not exceeding 10 years from the date of renewal. The decision whether or not to renew
the authorisation in whole or in part shall be in the absolute discretion of the Secretary
of State. The decision of the Secretary of State shall not be subject to review under the
Disputes Resolution Procedure.
29.3.5 If, following a request under Clause 29.3.4, the Secretary of State decides to renew the
authorisation, he shall confirm the same by notice in writing to the DBFO Co. Such
notice shall specify:
29.3.5.1 the function of the Secretary of State which the DBFO Co is authorised to
exercise in respect of the Project Facilities; and
29.3.5.2 the authorisation period, which shall not exceed the shorter of the Contract
Period and 10 years from the date of the renewal (the ''Third Party
Renewed Authorisation Period'').
29.3.6 If the 1995 Order or any replacement order made under Sections 69 and 77 of the
Deregulation and Contracting Out Act 1994 shall cease for whatever reason to be in
effect, the DBFO Co may request the Secretary of State to take such action as
necessary to bring into effect a further order in respect of part or all of the functions
the subject of the original order. The provisions of Clauses 27.2 [Procedure], 27.3 [No
Fetter on Discretion] and 27.4 [Relevant Considerations] (but for the avoidance of
doubt not Clause 27.5 [Refusal of Request]) shall apply mutatis mutandis to any such
request.
29.3.7 The DBFO Co may at any time and from time to time request the Secretary of State to
authorise it to exercise any one or more of the functions conferred on the Secretary of
State by the provisions of any of the statutes or regulations set out in any of the
schedules to the 1995 Order (other than those functions authorised pursuant to Clause
29.3.1 and Clause 28.4.1) and the following provisions shall apply to any such request
by the DBFO Co:
29.3.7.1 the provisions of Clauses 27.2 [Procedure], 27.3 [No Fetter on Discretion]
and 27.4 [Relevant Considerations] (but for the avoidance of doubt not
Clause 27.5 [Refusal of Request]) shall apply mutatis mutandis in relation
to any such request pursuant to this Clause 29.3.7;
29.3.7.2 if the Secretary of State decides to make any such authorisation, he shall
confirm the same by a notice in writing to the DBFO Co. Such notice
shall specify:
29.3.7.2.1 the function(s) of the Secretary of State which the DBFO Co is
authorised to exercise in respect of the Project Facilities; and
29.3.7.2.2 the authorisation period, which shall not exceed the shorter of
the Contract Period and 10 years from the date of the grant of
the authorisation; and
29.3.7.3 each of the statutes or regulations setting out one of the functions so
authorised shall be deemed to be a Statutory Provision from the date of the
authorisation and the provisions of this Clause 29 [Other Functions of the
Secretary of State] applicable to Third Party Authorised Functions (other
than this Clause 29.3.7) shall apply mutatis mutandis in respect of such
function from such date.
The decision of the Secretary of State whether or not to accede to any request of the
DBFO Co pursuant to this Clause 29.3.7 in whole or in part shall not be subject to
review under the Disputes Resolution Procedure.
29.3.8 In exercising the Third Party Authorised Functions the DBFO Co will act in
accordance with the principles of administrative law which govern the conduct of the
Secretary of State and, without prejudice to the generality of the foregoing, will:
29.3.98.1 obey all relevant Legal Requirements, and administrative and procedural
requirements;
29.3.8.2 not take any decisions or actions which may be considered perverse and
liable to be quashed in a court of law; and
29.3.8.3 obey the rules of natural justice.
29.3.9 For so long as any authorisation under this Clause 29.3 [Contracting Out of Functions]
is effective the DBFO Co shall include in the Monthly Report details of all actions
taken by the DBFO Co or which the DBFO Co is aware of relating to the Third Party
Authorised Functions, including without limitation details of:
29.3.9.1 all notices given and received;
29.3.9.2 all directions, permissions and consents given to Third Parties in the
exercise of any Third Party Authorised Functions;
29.3.9.3 all agreements, commitments or compromises reached with Third Parties
in the exercise of any Third Party Authorised Functions; and
29.3.9.4 any legal proceedings (including without limitation any appeals)
commenced or proposed or threatened to be commenced in relation to any
Statutory Provision or the exercise of any Third Party Authorised
Function.
29.3.10
Without prejudice to the generality of Clause 29.3.9, the DBFO Co shall
provide the Department's Nominee with copies of all permissions, consents, directions
and proceedings issued by the DBFO Co and all notices given and received by the
DBFO Co and all proceedings (including without limitation any appeals) commenced
against the DBFO Co in respect of any Statutory Provision or the exercise of any Third
Party Authorised Function.
29.3.11
If the DBFO Co fails to exercise any Third Party Authorised Function in
the manner referred to in Clause 29.3.8 then the Secretary of State may withdraw or
suspend the authorisation in respect of such Third Party Authorised Function. Such
suspension or withdrawal shall not be treated by the DBFO Co as a repudiation by the
Secretary of State.
29.3.12
If an authorisation under this Clause 29.3 [Contracting Out of Functions]
is revoked by the Secretary of State, other than in accordance with Clause 29.3.11,
then for the purposes of Section 73 of the Deregulation and Contracting Out Act 1994
''relevant contract'' shall mean this Clause 29.3 [Contracting Out of Functions] and no
other provision of this Agreement.
29.3.13
On the expiry, revocation, withdrawal or suspension of an authorisation
under this Clause 29.3 [Contracting Out of Functions], the DBFO Co shall take such
actions as are necessary for the efficient transfer of any such function to such person as
the Secretary of State may designate.
29.4 Management of Operations
29.4.1
If at any time and from time to time:
29.4.1.1
an authorisation under Clause 29.3 [Contracting Out of
Functions] is revoked or expires (and is not renewed) the
DBFO Co shall be released from exercising and shall not
exercise the relevant Third Party Authorised Function and,
subject to Clause 29.4.5 and unless otherwise directed by the
Secretary of State, the DBFO Co shall instead perform those
services set out in Clause 29.4.2 insofar as they apply to the
same function of the Secretary of State as the Third Party
Authorised Function which has been revoked or has expired;
29.4.1.2
a Third Party requests the DBFO Co or the Secretary of State
(and the Secretary of State notifies the DBFO Co of such
request) to exercise in relation to the Project Facilities or the
Operations any function of the Secretary of State as Highway
Authority under any statute or regulation (other than a Third
Party Authorised Function) (an ''Other Function''), then,
subject to Clause 29.4.5 and unless otherwise directed by the
Secretary of State, the DBFO Co shall perform those services
set out in Clause 29.4.2 insofar as they apply to the Other
Function.
29.4.2
In the circumstances referred to in Clauses 29.4.1.1 and 29.4.1.2, in
relation to:
29.4.2.1 any application for a permission, consent, authorisation or
other form of approval relating to the Project Facilities or the
execution of the Operations the grant of which is required by
Law to be made by or on behalf of the Secretary of State (an
''Application''), the DBFO Co shall assemble all requisite
documentation to support and explain the relevant Application
and shall prepare a recommendation in respect of (i) any terms
and conditions to be attached to any consent to the Application
(if relevant) and (ii) the merits of the relevant Application, and
submit the same to the Secretary of State. Upon the Secretary
of State granting or refusing any Application, the DBFO Co
shall upon notice from the Secretary of State take all necessary
steps to give effect to any such grant or refusal and comply
with the terms thereof;
29.4.2.2 any proceedings commenced by a Third Party relating to any
decision made or condition imposed on an Application
(''Appeal''), the DBFO Co shall assemble all requisite
documentation and evidence to defend the Appeal and shall
prepare a recommendation in respect of the merits of the
relevant Appeal and submit the same to the Secretary of State;
29.4.2.3 any power to carry out any works on the Project Road by or on
behalf of the Secretary of State and to recover the expenses
from any Third Party, the DBFO Co shall assemble all
relevant documentation and evidence necessary to explain why
the said works should be carried out and prepare a
recommendation as to how the said expenses should be
recovered;
29.4.2.4 any requirement for a notice or a direction to a Third Party
which is required by Law to be made by or on behalf of the
Secretary of State (a ''Direction''), the DBFO Co shall
assemble all requisite documentation to support and explain
the Direction and prepare a recommendation as to whether the
Direction should be made and the terms thereof. Upon the
Secretary of State making a Direction the DBFO Co shall
serve the Direction on the relevant Third Party on behalf of
the Secretary of State;
29.4.2.5 any power to manage, maintain or provide facilities on any
part of the Project Facilities by or on behalf of the Secretary of
State, the DBFO Co shall prepare recommendations to the
Secretary of State as and when required by the Secretary of
State in respect of the exercise of the aforementioned powers
in relation to the Project Facilities; and
29.4.2.6 any right of the Secretary of State as Highway Authority in
relation to the Project Facilities to object to a proposed course
of action by a Third Party (''Objection''), the DBFO Co shall
assemble all requisite documentation and evidence in relation
to the Objection and prepare a recommendation in relation to
the Objection and submit the same to the Secretary of State.
29.4.3
As part of the Liaison Procedures the DBFO Co shall establish with the
Department's Nominee a procedure for the communication of the matters
referred to in Clause 29.4.2 to the Secretary of State.
29.4.4
Without limitation to Clause 3.4 [Standard of Performance], the DBFO Co
shall deal with all matters relating to its obligations pursuant to Clause
29.4.2 in a timely and expeditious manner so as to ensure that the
Secretary of State is able to discharge or exercise any relevant duty,
power or discretion within the time required by Law.
29.4.5
In carrying out its services pursuant to this Clause 29.4 [Management of
Operations], the DBFO Co shall not contract with, enter into binding
commitments with, compromise with, give a notice of intention to proceed
to, impose obligations upon, respond to any Application from or Appeal
by, issue any Direction to or seek to recover costs from any Third Party
or carry out works affecting any Third Party without the prior written
approval of the Secretary of State.
29.4.6
For the purposes of Clause 29.4.5, the approval of the Secretary of State
may be given from time to time either in terms relating to a particular
matter relating to the relevant Statutory Provision or upon terms relating
to particular classes of such matters.
29.4.7
Actions taken by the DBFO Co pursuant to this Clause 29.4 [Management
of Operations] shall not in any way limit or fetter the discretion of the
Secretary of State in the discharge or exercise of his duties or powers.
The decision of the Secretary of State on the merits of any
recommendation made by the DBFO Co pursuant to Clause 29.4.2 shall
not be subject to review under the Disputes Resolution Procedure.
29.5 The Secretary of State's Responsibility
Without prejudice to the DBFO Co's obligations pursuant to Clause 29.2.2, the
Secretary of State shall:
29.5.1
from time to time, at the request of DBFO Co, notify Third Parties that,
subject to the terms and conditions set out in this Clause 29 [Other
Functions of the Secretary of State], the DBFO Co will be exercising the
Third Party Authorised Functions or will be performing the services set
out in Clause 29.4 [Management of Operations] (as the case may be); and
29.5.2
notify the DBFO Co promptly of any Third Party's requirements, notices or
details of legal proceedings which he receives relating to the Statutory
Provisions.
30.
OTHER THIRD PARTIES
30.1 Third Party Claims
30.1.1
The DBFO Co shall deal with any complaints received (whether received
orally or in writing, and whether from a User or others) in a prompt,
courteous and efficient manner.
30.1.2
If the DBFO Co receives any Claim from a third party relating wholly to
any period prior to:
30.1.2.1 the date of execution of this Agreement; or
30.1.2.2 the O&M Commencement Date where such third party Claim
relates to the Existing Road
and in any such case such claim does not result from any act, omission or
default by, or by any person on behalf of, the DBFO Co, the DBFO Co
shall not be liable to indemnify the Secretary of State in respect thereof
pursuant to Clause 39.1 and it shall promptly forward such Claim to the
Secretary of State. All other Claims from third parties shall be dealt with
in accordance with the provisions of Clause 39 [Indemnities].
30.2 Claims Against Third Parties
30.2.1
As between the Secretary of State and the DBFO Co, the DBFO Co will
bear, without recourse to the Secretary of State:
30.2.1.1 any Claim or Loss suffered by the Secretary of State arising in
connection with the Project Facilities; and
30.2.1.2 any Claim or Loss suffered by the DBFO Co, its agents,
contractors or sub-contractors of any tier or the employees of
any of them,
which is caused in any of the cases referred to in Clauses 30.2.1.1 and
30.2.1.2 by the acts or omissions of any user of the Project Facilities
including, without limitation, any damage to property, any personal injury
or death, and any loss of income (including without limitation any
reduction in DBFO Payments).
30.2.2
For the avoidance of doubt, nothing in Clause 30.2.1 shall affect:
30.2.2.1 any right of the Secretary of State to make or recover any
Claim against any person referred to in Clause 30.2.1 for
damage suffered by the Secretary of State, its agents or
contractors (other than the DBFO Co) or sub-contractors of
any tier or the employees of any of them; or
30.2.2.2 any right of the DBFO Co to make or recover any Claim
against any person referred to in Clause 30.2.1 for damage
suffered by the DBFO Co, its agents, contractors or sub-
contractors of any tier, or the employees of any of them.
30.3 Conduct of Claims Against Third Parties
30.3.1
Subject to the prior consent of the Secretary of State (such consent not to
be unreasonably withheld or delayed and to be on such terms as the
Secretary of State may reasonably require), the DBFO Co may if
necessary bring any action against a person referred to in Clause 30.2.1 in
the name of the Secretary of State, provided that the DBFO Co shall
indemnify and keep indemnified the Secretary of State against all costs
and expenses of and Losses and Claims arising out of any such action.
30.3.2
With respect to any action brought under Clause 30.3.1 and without
prejudice to any terms which the Secretary of State may reasonably
require in accordance with such Clause 30.3.1:
30.3.2.1 the DBFO Co shall keep the Secretary of State fully informed
about the conduct of any such action;
30.3.2.2 the DBFO Co shall consult with the Secretary of State about
the conduct of any such action and shall take account of the
reasonable requirements of the Secretary of State in the
conduct of such action; and
30.3.2.3 the DBFO Co shall not settle any such action without the
consent of the Secretary of State, provided that such consent
shall not be required to the settlement of any action if the
amount of the claim at issue does not exceed £20,000 (in
December 2002 prices).
30.4 Police
The DBFO Co shall comply at all times with all instructions of the police in respect of
the Project Facilities.
30.5 Interested Parties
30.5.1
The DBFO Co shall discharge the Requirements of Interested Parties.
30.5.2
Without limitation to Clause 30.5.1, the DBFO Co shall be responsible for
discharging:
30.5.2.1 any reasonable requirements of any Relevant Authorities;
30.5.2.2 any requirement of any Interested Party which is legally
enforceable against the Secretary of State or the DBFO Co,
of which the DBFO Co has notice or ought reasonably to be aware from
time to time.
30.6 Abnormal Loads
30.6.1
Without prejudice to Clause 30.6.2, the DBFO Co will receive and process
notifications for the movement of Abnormal Loads, required by the Motor
Vehicles (Authorisation of Special Types) (General) Order 2003. On
request, the DBFO Co will, without charge, supply relevant information
to third parties regarding the routeing of abnormal loads. The DBFO Co
will additionally co-ordinate, obtain (in such form as may be specified
from time to time by the Secretary of State), complete, index and hold
indemnities from hauliers.
30.6.2
The Secretary of State shall promptly advise the DBFO Co of any notice it
receives of any Abnormal Load to be transported over the Project Road.
The DBFO Co shall be responsible for liaising with the police and other
relevant persons regarding any Abnormal Load and for carrying out any
necessary related works.
30.6.3
For the avoidance of doubt, the provisions of Clause 30.2.1 shall apply in
respect of any Claim or Loss arising directly or indirectly as a result of
any such Abnormal Load.
30.7 Litter Authority
30.7.1
If and so long as required by the Secretary of State to do so, the DBFO Co
shall discharge in respect of the Project Road (or any part thereof
specified by the Secretary of State) the duties of the Secretary of State
under Sections 89(1) and 89(2) of the Environmental Protection Act
1990. In discharging those duties, the DBFO Co shall have regard to any
codes of practice in force under Section 89(7) of such Act from time to
time.
30.7.2
For the avoidance of doubt, in respect of any period during which, or any
part of the Project Road in respect of which, the Secretary of State has not
given a notice pursuant to Clause 30.7.1, the DBFO Co shall procure
access for the Relevant Authority in accordance with Clause 14.4.2 to
discharge the duties under Sections 89(1) and 89(2) of the Environmental
Protection Act 1990.
30.8 Shared Facilities
30.8.1
The DBFO Co shall be fully responsible, at its own expense, for the
operation and maintenance of any facilities which form part of the Project
Facilities (including, without limitation, those facilities set out in Part 4 of
Schedule 3 [Shared Facilities]) whose use is shared with any person. The
DBFO Co may agree such cost sharing arrangements as it deems
appropriate with any such person, provided always that in no
circumstances shall such agreement adversely affect the Secretary of
State.
30.8.2
Without prejudice to Clause 30.8.1, if any electrical power supply, lighting,
pumping station, drainage or other apparatus serving the Project Facilities
also serves any facilities (other than the Project Facilities) for which the
Secretary of State is the highway authority, then:
30.8.2.1 the DBFO Co shall use all reasonable endeavours to procure,
at the earliest date practicable, the installation of equipment
measuring the cost of that service in respect of the Project
Facilities and shall make payment for such supply directly to
the provider of such service; and
30.8.2.2 in respect of any period during which there is no such separate
measurement equipment installed, the Secretary of State shall
in the first instance meet the cost of such supply and he shall
be reimbursed by the DBFO Co a proportion of such cost
equal, in the case of an electricity supply, to the ratio of the
power rating of the DBFO Co's equipment which is connected
to that supply to the power rating of all equipment which is
connected to that supply and in the case of other services an
equitable amount taking account of each Party's relative usage
and reliance upon the service.
30.8.3
If any electrical power supply, lighting, pumping station, drainage or other
apparatus serving the Project Facilities also serves any facilities (other
than the Project Facilities) for which any highway authority other than the
Secretary of State is the highway authority, then:
30.8.3.1 the DBFO Co shall make arrangements with the relevant
highway authority in relation to the payment for such service
and, as between the Secretary of State and the DBFO Co, the
DBFO Co shall be responsible for any such payment; and
30.8.3.2 the DBFO Co shall, if any works are to be carried out affecting
such service, use all reasonable endeavours to agree with the
relevant highway authority that separate equipment shall be
installed measuring the cost of that service in respect of the
Project Facilities.
30.9 Network Rail
30.9.1
Subject to Clause 30.9.7 and 30.9.8 the Secretary of State hereby grants
the DBFO Co the authority to, and the DBFO Co shall, act as agent for
and on behalf of the Secretary of State in relation to the exercise and
discharge of the rights, obligations and duties of the Secretary of State
under the Network Rail Agreement.
30.9.2
During the period for which the DBFO Co is appointed as agent for and
on behalf of the Secretary of State in accordance with Clause 30.9.1, the
Secretary of State shall, as soon as is reasonably practicable, pass to the
DBFO Co copies of all correspondence, documents or other
communications received by the Secretary of State from Network Rail or
otherwise, which concern, affect or are otherwise relevant to the rights,
obligations and duties of the Secretary of State under the Network Rail
Agreement
30.9.3
Without prejudice to the rights and entitlements of the DBFO Co under
this Agreement, if:
30.9.3.1 it appears to the DBFO Co that Network Rail is not performing
its obligations under the Network Rail Agreement; or
30.9.3.2 the DBFO Co wishes to challenge a decision of Network Rail
under the Network Rail Agreement
the DBFO Co shall give notice to that effect to the Secretary of State
specifying the measures which the DBFO Co proposes to take (and in
relation to Clause 30.9.3.1, the obligation which the DBFO Co considers
that Network Rail has breached).
30.9.4
Upon receipt of a notice given in accordance with Clause 30.9.3, the
Parties shall consult with each other with regard to the measures which
the DBFO Co proposes to take. As soon as is reasonably practicable
(having regard to the urgency and circumstances of the case) and in any
event within 10 Working Days of receipt of the aforesaid notice, the
Secretary of State shall either:
30.9.4.1 grant authority to the DBFO Co to take such measures
proposed by the DBFO Co or such other measures as the
DBFO Co and the Secretary of State may agree (including, as
the case may be, legal proceedings) in the name of and on
behalf of the Secretary of State for the enforcement of, or
authority otherwise to enforce on behalf of the Secretary of
State, any of the rights of the Secretary of State under the
Network Rail Agreement; or
30.9.4.2 give a notice to the DBFO Co requesting any further
information which the Secretary of State may reasonably
require for the purpose of evaluating the proposed measures;
or
30.9.4.3 withhold such authority, and the provisions of Clause 30.9.12
shall apply.
30.9.5
If the Secretary of State requests further information in accordance with
Clause 30.9.4.2, the DBFO Co shall submit such information to the
Secretary of State. As soon as reasonably practicable (having regard to
the urgency and circumstances of the case) and in any event with 5
Working Days of receipt of such further information, the Secretary of
State shall either:
30.9.5.1 grant authority to the DBFO Co to take the measures proposed
by the DBFO Co or such other measures as the DBFO Co and
the Secretary of State may agree (including, as the case may
be, legal proceedings) in the name of and on behalf of the
Secretary of State for the enforcement of, or authority
otherwise to enforce on behalf of the Secretary of State, any of
the rights of the Secretary of State under the Network Rail
Agreement; or
30.9.5.2 withhold such authority and the provisions of Clause 30.9.12
shall apply.
30.9.6
If authority is granted by the Secretary of State in accordance with Clause
30.9.4.1 or Clause 30.9.5.1, the DBFO Co may in the name of and on
behalf of the Secretary of State take such measures as notified in
accordance with Clause 30.9.3 or such measures as the DBFO Co and the
Secretary of State may agree, subject always to Clauses 30.9.7 and 30.9.9
and to the following provisions:
30.9.6.1 the DBFO Co shall, in doing anything in the name of or on
behalf of the Secretary of State pursuant to Clause 30.9.4.1 or
Clause 30.9.5.1, act in accordance with the terms of such
authority and in accordance with any relevant Law and
procedural requirements to which the Secretary of State is
subject and in a manner so as not to cause the Secretary of
State to be in breach of any such Law or any duty upon him
and so as not knowingly to detract from the image and
reputation of the Secretary of State as highway authority;
30.9.6.2 the DBFO Co shall keep the Secretary of State fully informed
and consult with him about the progress of all measures
proposed or taken by the DBFO Co pursuant to this Clause
30.9 and shall promptly provide the Secretary of State with all
information (including copies of any documents or evidence of
any kind) reasonably requested by him concerning such
measures; and
30.9.6.3 to the extent that any such measures comprise legal
proceedings, the DBFO Co shall not compromise or settle any
such legal proceedings without the consent of the Secretary of
State, provided that such consent shall not be required to the
settlement of any legal proceedings if the amount the subject of
such legal proceedings does not exceed £20,000 (in March
2002 prices);
30.9.7
The DBFO Co shall indemnify and keep indemnified the Secretary of
State, his servants and agents in respect of any Claims or Losses of any
person (including, for the avoidance of doubt, the Secretary of State and
the DBFO Co) arising out of:
30.9.7.1 the performance or non-performance of the DBFO Co's
obligations as the agent of the Secretary of State in accordance
with Clause 30.9.1;
30.9.7.2 a breach of the Network Rail Agreement by the Secretary of
State as a consequence of the DBFO Co acting as agent for
and on behalf of the Secretary of State in accordance with
Clause 30.9.1; and/or
30.9.7.3 the taking of any measures authorised in accordance with
Clause 30.9.4.1 or Clause 30.9.5.1,
and including, without limitation, any liabilities of the Secretary of State
under the Network Rail Agreement (other than any liabilities arising out
of clause 2.11 of the Network Rail Agreement to the extent that the same
arise by virtue of the existence of the Bridge (as defined in the Network
Rail Agreement)).
30.9.8
Notwithstanding the other provisions of this Clause 30.9, the DBFO Co
shall not be required to discharge the obligations of the Secretary of State
(but shall co-operate with the Secretary of State to the extent necessary to
enable him to discharge those obligations that the DBFO Co is not
required to discharge):
30.9.8.1 arising under:
30.9.8.1.1
clause 3.11 of the Network Rail Agreement,
save to the extent that:
30.9.8.1.1.1 the DBFO Co has failed to
comply with an obligation
under this Agreement or the
Secretary of State would
himself, but for the provisions
of this Clause 30.9 be entitled
to take or require the DBFO
Co to take such action; and
30.9.8.1.1.2 (insofar as there are any costs
payable under Clause 3.11)
the costs to be paid to
Network Rail arise as a direct
consequence of the
circumstances set out in
Clause 30.9.8.1.1.1 above;
30.9.8.1.2 clause 5.1 of the Network Rail Agreement to the
extent that such obligation:
30.9.8.1.2.1 arises solely by reason of the
existence of the Bridge and/or the
Road (each as defined in the
Network Rail Agreement); or
30.9.8.1.2.2 does not arise as a direct
consequence of the Operations,
or the performance of, or failure
to perform, any obligations of the
DBFO Co under this Agreement;
30.9.8.1.3
paragraph 1(H) of schedule 2 of the Network
Rail Agreement but only to the extent that:
30.9.8.1.3.1 the same arises by virtue of the
existence of the Bridge (as
defined in the Network Rail
Agreement) and would have
arisen irrespective of the
design of the Bridge and
neither could have been
avoided by using a different
method of construction to that
adopted by the DBFO Co nor
has been caused by a breach
by the DBFO Co of some
other term of this Agreement;
or
30.9.8.1.3.2 such obligation neither:
(a) arises directly as a
result of injury or
damage caused as a
direct consequence of
the Operations; nor
(b) is a direct consequence
of the Operations or the
performance
of, or
failure to perform, any
obligations of the
DBFO Co under this
Agreement;
30.9.8.2 to pay any costs (including, without limitation, any Costs (as
defined in the Network Rail Agreement)) of Network Rail
unless such costs are:
30.9.8.2.1
reasonable, properly and reasonably incurred
and properly and reasonably payable; and
30.9.8.2.2
in the case of the costs referred to in paragraph
1(F) of schedule 2 of the Network Rail
Agreement, incurred solely as a consequence
of and prior to the completion of the Works
(as defined in the Network Rail Agreement);
or
30.9.8.3 arising as a consequence of a breach by the Secretary of State
of his obligation not to commence construction of the Works
(as defined in the Network Rail Agreement) prior to the Works
Commencement Date (as defined in the Network Rail
Agreement) pursuant to clause 2.2.3 of the Network Rail
Agreement (unless such breach is a consequence of a breach
by the DBFO Co of any provision of this Agreement other
than this Clause 30.9);
30.9.8.4 to exercise his statutory duties pursuant to the Network Rail
Agreement.
30.9.9
The Secretary of State shall be entitled at any time in his absolute
discretion to revoke (in whole or in part including, without limitation, as
to any specific proceedings) any authority granted pursuant to this Clause
30.9 by giving notice to that effect to the DBFO Co and thereupon in
respect of the relevant measures:
30.9.9.1 the authority of the DBFO Co to continue taking such
measures in the name of and on behalf of the Secretary of
State shall cease;
30.9.9.2 the Secretary of State shall take over the conduct of such
measures (including, as the case may be, any relevant legal
proceedings or other matter being conducted in the name of the
Secretary of State or on his behalf) and shall be entitled to
conduct, compromise or discontinue the same as the Secretary
of State sees fit in his absolute discretion;
30.9.9.3 the DBFO Co shall promptly take all steps necessary to
transfer the conduct of such measures to the Secretary of State
and shall give to the Secretary of State all documents in the
DBFO Co's possession relating to any such measures
(including, as the case may be, any relevant legal proceedings
or the enforcement of any rights or a Court order) and shall
provide such further assistance as the Secretary of State may
reasonably require to effect an orderly transfer of the conduct
of such measures to the Secretary of State; and
30.9.9.4 the DBFO Co shall be released from its indemnity under
Clause 30.9.7 save for:
30.9.9.4.1
any accrued or contingent liability thereunder
which arose before the date of revocation of
authority by the Secretary of State pursuant
to Clause 30.9.9;
30.9.9.4.2
any liability which arises out of or in
connection with any breach by the DBFO Co
of its obligations under this Clause 30.9
whether occurring before or after the date of
revocation of such authority; or
30.9.9.4.3
any liability which arises out of or in
connection with the manner in which the
DBFO Co exercised such authority (whether
or not in breach of this Clause 30.9) where
such liability ought reasonably to have been
avoided by the DBFO Co.
30.9.10
A decision by the Secretary of State to revoke any authority pursuant
to Clause 30.9.9 shall not be subject to review under the Disputes
Resolution Procedure.
30.9.11
Any authority granted to the DBFO Co by the Secretary of State in
accordance with this Clause 30.9 shall not preclude the Secretary of
State from taking any action whether by way of proceedings or
otherwise in connection with Network Rail Agreement or any other
matter.
30.9.12
If and to the extent that the Secretary of State:
30.9.12.1
withholds his authority to take measures, or fails to
agree the measures to be taken, pursuant to Clause
30.9.4 or Clause 30.9.5; or
30.9.12.2
revokes any authority granted pursuant to this Clause
30.9 in accordance with Clause 30.9.9 or Clause
30.9.13.6; or
30.9.12.3
withholds his consent pursuant to Clause 30.9.6.3 to
settlement by the DBFO Co of any legal proceedings
which the DBFO Co was authorised to pursue
pursuant to Clause 30.9.4.1 or Clause 30.9.5.1,
unless the reason for the taking of such action by the Secretary of State
is solely in consequence of the DBFO Co being in breach of its
obligations under this Agreement (including, without limitation, Clause
30.9.6), the provisions of Annex 3 to Part 1 of Schedule 12
[Compensation Event] shall, if applicable, be given effect.
30.9.13
Subject to and in accordance with this Clause 30.9.13, the Secretary of
State shall pay to the DBFO Co the amount of any Network Rail
Loss. The Secretary of State shall only be liable to the DBFO Co in
respect of any Network Rail Loss as follows:
30.9.13.1
If a Network Rail Loss becomes apparent and the
DBFO Co wishes the Secretary of State to exercise
any rights against Network Rail which the Secretary
of State may have in respect of such Network Rail
Loss, then the DBFO Co may serve a notice on the
Secretary of State asking him to exercise any rights he
may have to make a claim against Network Rail.
30.9.13.2
Any notice given in accordance with Clause 30.9.13.1
shall:
30.9.13.2.1
describe such claim in a level of detail
sufficient to enable the Secretary of
State to understand the basis for such
claim in respect of such Network Rail
Loss;
30.9.13.2.2
set out the DBFO Co's detailed
estimate of the amount of the Network
Rail Loss;
30.9.13.2.3
contain an undertaking on the part of
the DBFO Co (in a form reasonably
satisfactory to the Secretary of State)
to meet all the costs and/or liabilities
incurred by the Secretary of State in
pursuing such claim.
30.9.13.3
The Secretary of State shall be under no obligation to
exercise any right in respect of any claim in respect of
such Network Rail Loss nor shall he have any liability
under this Clause 30.9.13 if:
30.9.13.3.1
he has not received a notice which
satisfies the requirements of Clause
30.9.13.2; or
30.9.13.3.2
he considers, and either it is agreed by
the DBFO Co or decided by an Expert
appointed under the Disputes
Resolution Procedure, that there is no
reasonable prospect of making a
successful and financially worthwhile
claim in relation to such right.
30.9.13.4
Subject to Clause 30.9.13.2, the Secretary of State shall
in his sole discretion either:
30.9.13.4.1
proceed to enforce or compromise such
rights in respect of such Network Rail
Loss against or with Network Rail at
the cost of and in accordance with the
reasonable directions of the DBFO
Co; or
30.9.13.4.2
take such actions as may be necessary
to enable the DBFO Co (at its own
expense) to enforce or compromise
such rights in respect of such Network
Rail Loss against or with Network
Rail in the name of the Secretary of
State and in such circumstance the
DBFO Co shall keep the Secretary of
State fully informed and consult with
him about the conduct of the
proceedings and/or actions,
provided that the Secretary of State may prescribe
such conditions in relation to the conduct of any such
proceedings or actions as he shall reasonably require.
30.9.13.5
The Secretary of State may at time, if the DBFO Co is
enforcing or seeking to enforce such rights in respect of
such Network Rail Loss in a vexatious manner or is
pursuing or seeking to pursue such rights at a time
when there is no reasonable prospect of a successful
outcome, by notice to the DBFO Co in writing recover
full control of the proceedings and/or negotiations,
including without limitation, the right to settle or
discontinue. In such circumstances the DBFO Co shall
not be released from its undertaking for costs.
30.9.13.6
In addition to and without prejudice to Clause
30.9.13.5, the Secretary of State may at any time, if he
considers in his absolute discretion that to do so is
required on policy grounds, by notice to the DBFO Co
in writing recover full control of the proceedings and/or
negotiations, including without limitation, the right to
settle or discontinue. In such event (but unless Clause
30.9.13.5 applies), the DBFO Co shall from the date of
such notice be released from its undertaking for costs
(in respect of the costs incurred both prior to and
following the service of such notice) and the Secretary
of State shall within 30 days after service of such
notice repay to the DBFO Co all costs previously paid
by the DBFO Co pursuant to its undertaking.
30.9.13.7
Where the Secretary of State pursuant to Clause
30.9.13.4.1, or the DBFO Co pursuant to Clause
30.9.13.4.2, is successful in a claim against Network
Rail with respect to a Network Rail Loss, but the
Network Rail Loss exceeds (such excess being referred
to in this Clause 30.9.13.7 as the “Excess Network
Rail Lossâ€) the aggregate of:
30.9.13.7.1
the Network Rail Recovery Amount;
and
30.9.13.7.2
the amount that the DBFO Co is
entitled to recover in respect of the
Network Rail Loss under any
insurance policy (whether effected
pursuant to this Agreement or
otherwise)
then following the final conclusion of any proceedings
by the Secretary of State against Network Rail with
respect to the Network Rail Loss and the expiry of the
time for any appeal without a successful appeal being
made, the Secretary of State shall account to the DBFO
Co for so much of the Excess Network Rail Loss as the
Secretary of State pursuant to Clause 30.9.13.4.1, or
the DBFO Co pursuant to Clause 30.9.13.4.2, would
have recovered from Network Rail had the claim in
respect of the Network Rail Loss not been subject to
the cap on liability contained in clause 5.2.2 of the
Network Rail Agreement and provided that, for the
purposes of calculating such amount, it shall be
assumed that Network Rail would not have been
entitled to reduce or avoid to any extent the amount
recoverable from it by the Secretary of State under the
Network Rail Agreement in reliance solely on the
ground that the Secretary of State is entitled to limit his
liability under the terms of this Clause 30.9.13.
30.9.13.8
The Secretary of State shall not be obliged to pay the
DBFO Co any sums under this Clause 30.9.13 other
than the Network Rail Recovery Amount and any sum
payable by the Secretary of State pursuant to Clause
30.9.13.7.
30.9.14
Nothing in this Clause 30.9 shall derogate from or relieve the DBFO
Co of any of its obligations under this Agreement
PART V
CHANGE, LIABILITIES AND TERMINATION
34.
CHANGE PROCEDURE
If at any time after the date of this Agreement an Eligible Change occurs, except and to
the extent that the same arises out of a breach by the DBFO Co (or any person for
whom it is responsible) of any obligations under this Agreement or the Project
Documents, the provisions of Schedule 12 [Change] shall apply.
35.
CHANGE IN LAW
35.1 Relevant Change in Law
35.1.1
If the DBFO Co believes that a Relevant Change in Law has occurred
which is a Compensation Event, the DBFO Co may give a notice pursuant
to paragraph 1.1 of Annex 3 to Part 1 of Schedule 12 [Compensation
Events] and the General Change Procedure shall apply subject to the
provisions of Annex 3 to Part 1 of Schedule 12 [Compensation Events].
35.1.2
Where, after the date of this Agreement, any Relevant Change in Law is
repealed or modified or any Law is enacted or modified the effect of which
is to neutralise or reduce the discriminatory effect of a Relevant Change in
Law, then the Secretary of State may give a notice to that effect to the
DBFO Co and the provisions of Annex 3 to Part 1 of Schedule 12
[Compensation Events] shall apply, mutatis mutandis, as if such event
were a Compensation Event, with references to the Secretary of State
being deemed to be references to the DBFO Co, and vice versa, and with
references to Relevant Change in Law being replaced by references to the
repeal, modification or enactment referred to in this Clause 35.1.2. For
the avoidance of doubt, the Secretary of State shall be the ''Proponent'' and
the DBFO Co shall be the ''Other Party'' for the purposes of the General
Change Procedure.
35.2 Deemed Department's Change
35.2.1
Where the DBFO Co believes that a Change in Law constitutes a Deemed
Department's Change, it may, within 28 days of the relevant Change of
Law coming into effect or if later, within 28 days of the date that the
DBFO Co ought reasonably to have become aware of the effect of the
Deemed Department's Change, serve a notice (a ''Deemed Department's
Change Notice'') to that effect on the Department's Nominee.
35.2.2
The Deemed Department's Change Notice shall:
35.2.2.1 identify the relevant Change in Law;
35.2.2.2 give details of the variation to the Works and/or the Operations
which has become necessary as a result of the relevant
Change in Law; and
35.2.2.3 set out the basis of its belief that if the same had been effected
in accordance with the terms of this Agreement, it would have
constituted a Department's Change.
35.2.3
Within 60 days of receipt of the Deemed Department's Change Notice, the
Department's Nominee shall notify the DBFO Co that either:
35.2.3.1 he agrees that a Deemed Department's Change has occurred; or
35.2.3.2 he does not agree that a Deemed Department's Change has
occurred, in which case the Department's Nominee shall set
out in the notice the grounds of objection.
35.2.4
Where the Department's Nominee fails to respond to a Deemed
Department's Change Notice within such 60 day period, a Deemed
Department's Change shall be deemed to have occurred and the DBFO Co
may serve a notice on the Department's Nominee requiring him to issue a
Department's Change and the provisions of Annex 1 of Part 1 of Schedule
12 [Department's Change] shall apply.
35.2.5
Where the Department's Nominee gives a notice under Clause 35.2.3, the
Parties shall negotiate for a period of 60 days in an attempt to agree:
35.2.5.1 whether a Deemed Department's Change has occurred; and
35.2.5.2 where a Deemed Department's Change has occurred, the effect,
if any, it has on the Works and/or the Operations.
35.2.6
If the Parties fail to agree any matter referred to in Clause 35.2.5 within
such 60 day period, then either Party may refer the Dispute to the Disputes
Resolution Procedure.
35.2.7
Where the Department's Nominee agrees, or it is determined in accordance
with the Disputes Resolution Procedure, that there has been a Deemed
Department's Change, the Department's Nominee shall issue a
Department's Change and the provisions of Annex 1 of Part 1 of Schedule
12 [Department's Change] shall apply.
35.2.8
The provisions of Clause 3.5.1.13 shall not be construed as denying the
DBFO Co the benefit of the provisions of this Clause 35.2.
36.
ADDITIONAL WORKS AND SUBSEQUENT SCHEMES
36.1 Additional Works Services
Where the Secretary of State requires the DBFO Co to carry out any Additional Works
Services, the DBFO Co shall procure that such Additional Works Services are carried
out in accordance with the provisions of Part 1 of Schedule 13 [Procedure for
Additional Works].
36.2 Compensation
36.2.1
The DBFO Co shall be entitled to compensation from the Secretary of
State in respect of Additional Works Services, calculated in accordance
with the provisions of Part 2 of Schedule 13 [Payment for Additional
Works Services].
36.2.2
The provisions of Annex 2 of Part 1 of Schedule 12 [Additional Works]
shall apply with respect to any Change in Costs, or Change in Revenue of
the DBFO Co consequential upon the carrying out of any Additional
Works provided that where the Additional Works are not carried out by
the DBFO Co or any Associated Company of the DBFO Co or by the
Sponsor or any Associated Company of the Sponsor or Holdco and the
Secretary of State elects not to procure that the Additional Works
Contractor enters into a direct agreement with the DBFO Co providing a
warranty in favour of the DBFO Co in terms that are, at the relevant time,
reasonably and ordinarily to be expected to be provided by a skilled and
experienced contractor carrying out such works the DBFO Co shall be
entitled to include in its estimate of any Change in Costs a reasonable
amount in respect of the risk of any defects in the Additional Works not
attributable to the DBFO Co.
36.3 Subsequent Schemes
Where the DBFO Co desires a Subsequent Scheme to be carried out, the provisions of
Part 3 of Schedule 13 [Subsequent Schemes] shall apply.
36.4 Improvements
Where the DBFO Co desires to make any Improvement to the Project Facilities, the
provisions of Part 4 of Schedule 13 [Improvements] shall apply.
36.5 Defects in Additional Works
36.5.1 Without prejudice to paragraph 6 of Part 1 of Schedule 13 [Procedure for
Additional Works] and without prejudice to Clause 17.3 [Remedial Action],
from the date of completion specified in the Additional Works Completion
Certificate in respect of any Additional Works, the DBFO Co shall be
responsible for any remedial or other works required as a result of any defect
in such Additional Works including, without limitation, any latent defect.
36.5.2 All costs of and associated with any such defect in such Additional Works
(including, without limitation, any latent defect therein) and any remedial or
other works in respect thereof shall be borne by the DBFO Co.
36.5.3 For the avoidance of doubt, the Secretary of State shall have no liability to the
DBFO Co in respect of any loss of profit, loss of income, loss of contract or
any other losses arising out of or in connection with the existence of any such
latent defect in the Additional Works or any remedial works required as a
result of any latent defect.
36.5.4 If the DBFO Co suffers loss as a result of any defect in any such Additional
Works (including, without limitation, any latent defect therein) and it wishes
the Secretary of State to exercise any rights against any Additional Works
Contractor which the Secretary of State may have in respect of any such defect
in such Additional Works (including, without limitation, any latent defect
therein) then the DBFO Co may serve a notice on the Secretary of State asking
him to exercise any right he may have to make a claim against the relevant
Additional Works Contractor (the "Additional Works Contractor Notice") and
the provisions of Clause 17.5.2 to 17.5.5 inclusive shall apply mutatis
mutandis in respect of the Additional Works Contractor Notice, with reference
therein to:
36.5.4.1
the "Third Party Contractor Claim Notice" being deemed to be a
reference to the "Additional Works Contractor Notice";
36.5.4.2 "Third Party Contractor" being deemed to be a reference to the
relevant "Additional Works Contractor";
36.5.4.3 "Defective Work" being deemed to be a reference to the relevant defect
in the Additional Works; and
36.5.4.4
the definition of "Recovery Amount" being deemed to mean the
amount (net of any costs of recovery) which the Secretary of State
has recovered from the relevant Additional Works Contractor in
respect of the relevant defect in the relevant Additional Works the
subject of the Additional Works Contractor Notice.
37.
FORCE MAJEURE
37.1 Relief from Liability
The Parties shall be relieved from liability under this Agreement to the extent that by
reason of Force Majeure they are not able to perform their obligations under this
Agreement provided that it is agreed that for the purposes of this Agreement the
provisions of paragraphs 1.3 and 1.4 of Schedule 11 shall only be deemed to constitute
Force Majeure insofar as:
37.1.1 they affect the ability of the Secretary of State in the performance of his
obligations; or
37.1.2 they affect the DBFO Co in the performance of its obligations but do not also
constitute a risk which has become Uninsurable and to which the provisions of
Clause 20.7 apply.
37.2 Notice
Relief under Clause 37.1 [Relief from Liability] shall not be given unless the Party
intending to claim relief has, by notice to the other Party within 10 days of becoming
aware of the event of Force Majeure or, if later, of the failure to perform, informed the
other Party that it intends to claim relief. Such notice shall contain such relevant
information relating to such failure as is available, including (without limitation) the
actions being taken to remedy such failure to perform and an estimate of the period of
time required to remedy such failure.
37.3 Obligation to Remedy
As soon as practicable after the occurrence of an event of Force Majeure the Party
affected shall take all reasonable steps in accordance with Good Industry Practice to
remedy the failure to perform and relief under this Clause 37 [Force Majeure] shall
cease to be available to a Party to the extent that it fails so to take all such reasonable
steps to remedy the failure.
37.4 Consequences of Force Majeure
If the Parties agree or it is determined through the Disputes Resolution Procedure that
Eligible Force Majeure:
37.4.1
has, prior to the issue of the Completion Certificate, delayed the DBFO Co
in completing the Works then the Contract Period shall be extended by a
period equal to the period of such delay, provided that the cumulative
aggregate of all such extensions pursuant to this Clause 37.4.1 shall not,
in any event, exceed 180 days;
37.4.2
has, prior to the issue of the Completion Certificate caused damage to the
Works:
37.4.2.1 the DBFO Co shall give notice thereof to the Department's
Nominee together with details of the effect thereof and the
proposed steps to rectify the damage and the costs thereof;
37.4.2.2 the Parties shall enter into discussions concerning the event of
Eligible Force Majeure and the damage with the intent that, as
soon as possible after the cessation of the event of Eligible
Force Majeure, rectification work can be commenced;
37.4.2.3 following agreement between the Parties on the rectification
works to be carried out, or in default of agreement upon a
decision under the Disputes Resolution Procedure, the DBFO
Co shall procure that such rectification works are carried out
as though the Secretary of State had requested a Department's
Change in respect of such Works and the provisions of Annex
1 of Part 1 of Schedule 12 [Department's Change] shall apply,
except that:
37.4.2.3.1
the DBFO Co shall not be entitled to give a
notice under paragraph 2.1 of Annex 1 to
Part 1 of Schedule 12 [Department's
Change]; and
37.4.2.3.2
for purposes of determining the Revised Value
in accordance with paragraph 6 of Part 2 of
Schedule 12 [General Change Procedure], no
Change in Revenue shall be taken into
account;
37.4.3
occurring after the issue of the Completion Certificate, has substantially
affected the vehicle flow and/or vehicle speed on the Project Road in a
manner which in itself (and not through any default by the DBFO Co) has
the effect of reducing materially the Congestion Management Payments
payable to the DBFO Co, then the Contract Period shall be extended by a
period equal to the period during which the vehicle flow and/or vehicle
speed on the Project Road has been so affected, provided that:
37.4.3.1 there shall be no extension of the Contract Period for any
occurrence of Eligible Force Majeure unless such occurrence
affects vehicle flow and/or vehicle speed for more than 7
consecutive days, and
37.4.3.2 the aggregate extension of the Contract Period pursuant to this
Clause 37.4.3 shall not in any event exceed 180 days;
37.4.4
has, at any time caused damage to the Existing Road (other than any
Upgraded Section), or has after the issue of the Completion Certificate
caused damage to either the New Road or the Off-Site Facilities then, and
subject always to Clause 37.6:
37.4.4.1 the DBFO Co shall give notice thereof to the Department's
Nominee together with details of the effect thereof and the
proposed steps to rectify the damage and the costs thereof;
37.4.4.2 the Parties shall enter into discussions concerning the event of
Eligible Force Majeure and the damage with the intent that, as
soon as possible after the cessation of the event of Eligible
Force Majeure, rectification work can be commenced;
37.4.4.3 following agreement between the Parties on the rectification
works to be carried out, or in default of agreement upon a
decision under the Disputes Resolution Procedure, the DBFO
Co shall procure that such rectification works are carried out
as though they were Additional Works in accordance with the
provisions of Annex 2 of Part 1 of Schedule 13 [Procedure for
Additional Works ] and the provisions of Part 1 of Schedule
12 [Additional Works] shall apply, except that for purposes of
determining the Revised Value in accordance with paragraph
6 of Part 2 of Schedule 12 [General Change Procedure] no
Change in Revenue shall be taken into account.
37.5 Right to Terminate
37.5.1
Where an occurrence of Eligible Force Majeure:
37.5.1.1 occurring prior to the issue of the Completion Certificate, has
rendered financially or practicably impossible the
performance of this Agreement for a period of time so as to
have a fundamental effect on the rights or obligations of either
of the Parties; or
37.5.1.2 has a material effect on the performance by either Party of this
Agreement for a period longer than 180 days or an aggregate
period of at least 180 days over any 3 year period;
then either Party may, following consultation for a further period of not
less than 90 days to reach a solution acceptable to both Parties, terminate
this Agreement in accordance with Clause 42.2 [Termination for Force
Majeure].
37.5.2
Where one or more occurrences of Eligible Force Majeure have a material
effect on the performance by the DBFO Co of this Agreement for an
aggregate period of at least 180 days the DBFO Co may, following
consultation for a further period of not less than 90 days to reach a
solution acceptable to both Parties, terminate this Agreement in
accordance with Clause 42.2 [Termination for Force Majeure].
37.6 Limit on Liability
For the avoidance of doubt, save as expressly set out in this Clause 37 [Force Majeure]
(other than this Clause 37.6 [Limit on Liability]) none of the Secretary of State, his
servants or agents shall have any liability to the DBFO Co in relation to any Loss or
Claim which the DBFO Co suffers or incurs as a result of any event of Force Majeure
and, accordingly, as between the Parties any such Loss or Claim shall be borne by the
DBFO Co.
38.
WARRANTIES, UNDERTAKINGS AND DISCLAIMERS
38.1 Warranties and Undertakings by the DBFO Co
Without prejudice to any warranties or conditions implied by law, the DBFO Co
warrants and undertakes that:
38.1.1
it will fully comply with and meet the Technical Requirements;
38.1.2
the design of the Works and of any other works the subject of a Proposal
will in all respects meet the Technical Requirements and all other
requirements of this Agreement;
38.1.3
the Works and any other works the subject of a Proposal will comprise
only materials and goods which will be of sound and satisfactory quality
and have been manufactured or prepared in accordance with the Technical
Requirements and with the Management Systems established pursuant to
Clause 23 [Management Systems] and all workmanship shall be in
accordance with sound construction practice applicable at the time of
construction;
38.1.4
the DBFO Co will, at all times, comply with the requirements of the
Department's Nominee as permitted under this Agreement and the
Requirements of Interested Parties and any Legal Requirement;
38.1.5
the Works and any other works the subject of a Proposal, when
constructed, will comply, in all respects, with the Core Construction
Requirements, the Construction Requirements, the Core Communications
Requirements, the Communications Requirements, the design as received
in accordance with Clause 11 [Design and Construction] or Clause 14.6
[Maintenance and Other Works] (as the case may be) and the Design and
Certification Procedure;
38.1.6
the Construction Requirements, the Communications Requirements and the
O&M Requirements will comply with and satisfy the Core Construction
Requirements, the Core Communications Requirements and the Core
O&M Requirements respectively;
38.1.7
subject to the terms of the Design and Certification Procedure, the design
of the Works and of any other works the subject of a Proposal will be
carried out by or under the supervision of the Designer and the persons
carrying out any design and/or supervision are suitably qualified and
experienced so to do and in particular have adequate previous experience
of the part of the design they are carrying out or supervising;
38.1.8
all information, representations and other matters of fact communicated in
writing to the Secretary of State or his agents or employees in connection
with the DBFO Co's response to the invitation to tender in respect of the
Project or in the course of the subsequent negotiations in respect of this
Agreement are true, complete and accurate in all respects;
38.1.9
it is a limited liability company, duly incorporated and validly existing
under the laws of the jurisdiction of its incorporation;
38.1.10
it has full power and authority to enter into this Agreement and to carry out
the Operations;
38.1.11
the entry into and performance by it of this Agreement do not and will not
conflict with:
38.1.11.1 its constitutional documents; or
38.1.11.2 any document which is binding upon it or any of its assets to
the extent that such conflict would be reasonably likely to
have a material adverse effect on the ability of the DBFO Co
to perform its obligations under this Agreement;
38.1.12
there has been no material adverse change in the financial condition of the
DBFO Co since its incorporation or in the financial condition of the
Sponsor since the accounts dated 31st December 2002.
38.1.13
the Financial Terms when taken together with its share capital, the DBFO
Co Loan Note Instrument and the revenue generated under this Agreement
are the basis on which the DBFO Co intends to finance the Project;
38.1.14
each of the Project Documents, (apart from those specified in Clause
2.3.1A which will be once executed) is in full force and effect and
constitutes the valid, binding and (except as may be limited by any
relevant bankruptcy, insolvency examination or similar laws affecting
creditors' rights generally, the principles of equity or equitable remedies,
limitation of claims or defences of set off) enforceable obligations of the
parties thereto, the copies of the Project Documents which the DBFO Co
has delivered to the Secretary of State are true and complete copies of such
documents, and there are not in existence any other agreements or
documents replacing or relating to any of the Project Documents which
would materially affect the interpretation or application of any of the
Project Documents; and
38.1.15
any items referred to in Clauses 49.1.1 and 49.1.2 will not infringe any
third party's copyright, moral rights, design rights, trade mark or any other
intellectual property rights.
38.2 Disclaimer
38.2.1
The Secretary of State has made available to the DBFO Co, prior to the
date hereof, certain materials, documents and data related to the design or
construction of the Works, the operation and maintenance of the Project
Facilities, the Site, the Adjacent Areas, traffic records and forecasts and
other matters which are or may be relevant to the Project and the
obligations undertaken by the DBFO Co under this Agreement (the
''Disclosed Data''). The Disclosed Data includes, without limitation, all
such materials, documents and data which were provided to the DBFO Co
in connection with the invitation to tender in respect of the Project
(including all such contained on the DVD Rom).
38.2.2
The Secretary of State shall not be liable to the DBFO Co (whether in
contract, tort, by statute or otherwise howsoever and whether or not
arising out of any negligence on the part of the Secretary of State or any
agent, servant or contractor of his) in respect of any inaccuracy, error,
omission, unfitness for purpose, defect or inadequacy of any kind
whatsoever in the Disclosed Data.
38.2.3
The Secretary of State gives no warranty or undertaking that the Disclosed
Data represents all of the information in his possession or power (either
during the tender for the Project or at the execution of this Agreement)
relevant or material to the Project or the obligations undertaken by the
DBFO Co under this Agreement. The Secretary of State shall not be
liable to the DBFO Co in respect of any failure to disclose or make
available (whether before or after the execution of this Agreement) to the
DBFO Co any information, documents or data, nor to keep the Disclosed
Data up to date, nor to inform the DBFO Co (whether before or after
execution of this Agreement) of any inaccuracy, error, omission, unfitness
for purpose, defect or inadequacy in the Disclosed Data.
38.2.4
The DBFO Co acknowledges and confirms that:
38.2.4.1 it has conducted its own analysis and review of the Disclosed
Data and has before the execution of this Agreement satisfied
itself as to the accuracy, completeness and fitness for purpose
of all such Disclosed Data upon which it places reliance; and
38.2.4.2 it shall not be entitled to make any claim against the Secretary
of State whether in damages or for extensions of time or
additional payments under this Agreement on the grounds of
any misunderstanding or misapprehension in respect of the
Disclosed Data or the matters referred to in Clause 6.1 [Site
Inspection] or Clause 38.2.4.1 or on the grounds that incorrect
or insufficient information relating thereto or to the Site or
Adjacent Areas was given to it by any person, whether or not
in the employ of the Secretary of State. Nor shall the DBFO
Co be relieved from any risks or obligations imposed on or
undertaken by it under this Agreement on any such ground.
38.3 Savings
The warranty by the DBFO Co under any provision of this Agreement shall be without
limitation to any warranty by the DBFO Co under any other provision of this
Agreement.
38.4 Secretary of State's Warranty
The Secretary of State warrants to the DBFO Co that (at the date of this Agreement)
the Orders listed in Part 6 of Schedule 3 [Scheme Orders] have (save for the draft
order numbered 6 and the two draft orders together numbered 13 in Part 6 of Schedule
3 [Scheme Orders]) been properly made and (other than the De-Trunking Order
numbered 5 in Part 6 of Schedule 3 [Scheme Orders], the draft order numbered 6 and
the two draft orders together numbered 13 in Part 6 of Schedule 3 [Scheme Orders])
are in full force and effect.
39.
INDEMNITIES
39.1 DBFO Co's Indemnities
Save to the extent that the DBFO Co is entitled to an indemnity from the Secretary of
State under Clause 39.4 [Secretary of State's Indemnities], the DBFO Co shall
indemnify and keep indemnified the Secretary of State, his servants and agents in
respect of any Claims or Losses of any person (including, for the avoidance of doubt,
the DBFO Co and the Secretary of State) which may arise out of, or in the course of or
in connection with, the Operations or the performance of or failure to perform any
obligation under this Agreement and, without limitation to the generality of the
foregoing, in respect of:
39.1.1
any criminal penalties or fines arising out of or resulting from the breach
by the DBFO Co of any of its obligations under this Agreement;
39.1.2
any damages or compensation payable to any workman or other person in
the employment of the DBFO Co or any contractor or sub-contractor of
any tier of the DBFO Co;
39.1.3
any loss or damage to the Works or the Project Facilities or any materials
or Plant to be used in the construction of the Works or the Project
Facilities from any cause (other than as provided in Clause 37 [Force
Majeure]);
39.1.4
any Loss or Claim caused by any defect (including without limitation any
Latent Defect) in the Existing Road including without limitation all costs
of any remedial action taken in respect of any such defect and any loss of
income as a consequence of any such defect or any such remedial action
save to the extent that the DBFO Co is not obliged to bear the costs of
such defect by virtue of Clauses 17.4.1.1, 17.4.1.2 and 17.4.1.3;
39.1.5
any Claim for damage suffered by any user of the Project Facilities or any
other third party which arises out of the execution of the Works or the
operation, maintenance or improvement of the Project Facilities (including
without limitation any Claims in respect of environmental mitigation
measures);
39.1.6
any Claim made by any person in respect of any CPA Works or IAPA
Works which the DBFO Co has performed or agreed to perform whether
pursuant to any requirement of this Agreement or otherwise;
39.1.7
any Loss or Claim arising whether directly or indirectly out of or in
connection with:
39.1.7.1 a breach of the provisions of Clause 28 [Statutory
Undertakers]; or
39.1.7.2 any Diversionary Works (as defined in Clause 28.1.6); or
39.1.7.3 the DBFO Co's exercise, purported exercise or failure to
exercise any Authorised Functions (as defined in Clause
28.1.2); or
39.1.7.4 the Secretary of State performing or engaging others to
perform any Authorised Function (as defined in Clause 28
[Statutory Undertakers]) as a result of the Secretary of State
withdrawing or suspending any such Authorised Function in
accordance with Clause 28.4.10;
39.1.8
any Loss or Claim arising whether directly or indirectly out of or in
connection with:
39.1.8.1 a breach by the DBFO Co of the provisions of Clause 29
[Other Functions of the Secretary of State]; or
39.1.8.2 the DBFO Co's exercise, purported exercise or failure to
exercise any Third Party Authorised Function (as defined in
Clause 29.1.4); or
39.1.8.3 the Secretary of State performing or engaging others to
perform any Third Party Authorised Function (as defined in
Clause 29 [Other Functions of the Secretary of State]) as a
result of the Secretary of State withdrawing or suspending any
such Third Party Authorised Function in accordance with
Clause 29.3.11;
39.1.9
any Loss or Claim which is to be borne by the DBFO Co in accordance
with Clause 10 [Security of the Site] or which arises out of or in
connection with any measures taken (or the failure to take measures which
should have been taken) by the DBFO Co against or in connection with
Protestors or Trespassers;
39.1.10
any Loss which is to be borne by the DBFO Co in accordance with Clause
30.2 [Claims Against Third Parties];
39.1.11
any Loss or Claims which may arise out of or in connection with any
breach of the warranties and undertakings set out in Clause 38.1
[Warranties and Undertakings by the DBFO Co];
39.1.12
any Loss or Claim arising out of the carrying out of any Investigation and
any Loss or Claim arising whether directly or indirectly out of the carrying
on of works pursuant to Clause 6.4 [Works by Relevant Authorities];
39.1.13
any costs, charges, Losses or Claims to be borne by the DBFO Co in
accordance with Clause 8.4 [Additional Access];
39.1.14
any Loss or Claim arising whether directly or indirectly out of any act or
omission of the DBFO Co which directly or indirectly causes any breach
by the Secretary of State of any of his statutory duties;
39.1.15
any Loss or Claim arising whether directly or indirectly out of any damage
to the Connecting Roads as a consequence of or in connection with the
Operations including, without limitation, where caused by site traffic
operating in connection with the Project;
39.1.16
[Not used];
39.1.17
any Loss or Claim arising out of or in connection with any breach of the
Regulations referred to in Clause 11.8 [Health and Safety] (whether in
relation to obligations, requirements and duties of the client (as defined in
Clause 11.8.1.2) or otherwise);
39.1.18
any Loss or Claim referred to in Clause 47.1.2;
39.1.19
any Loss or Claim which may arise out of, or in the course of or in
connection with, any excavation, extraction, disposal, exploitation of or
other dealing with any Site Materials or any breach by the DBFO Co of
the provisions of Clause 8.10 [Disposal of Materials Won on Site];
39.1.20
any Loss or Claim made or brought by any person for or on account of
infringement of any Intellectual Property (other than any Intellectual
Property provided by the Secretary of State to the DBFO Co) used in
connection with the Works or the Operations or which arise out of or in
connection with the use of any plant, machinery or equipment in
connection with the Works or Operations;
39.1.21
any Loss or Claim made or brought by any person arising in respect of or
as a result of the Transfer of Undertakings (Protection of Employment)
Regulations 1981;
39.1.22
any Loss or Claim suffered by the Secretary of State which may arise out
of or in the course of or in connection with the taking of any measures
authorised by the Secretary of State pursuant to Schedule 22 [Security of
the Site] including without limitation the taking of any legal proceedings,
enforcement of any Court order or enforcement of legal rights without a
Court order or the doing of anything whatsoever taken, enforced or done
or purported to be taken, enforced or done in the name of or on behalf of
the Secretary of State;
39.1.23
any Loss or Claim arising from any inaccuracy, error, omission, unfitness
for purpose, defect or inaccuracy of any kind whatsoever in the Disclosed
Data or material as referred to in Clause 38.2 [Disclaimer] (whether or not
arising from any negligence on the part of the Secretary of State or any
servant, agent or contractor of his), except to the extent that such Loss or
Claim arises from the use by a third party (other than an Associated
Company of the DBFO Co or a Contracting Associate) of the Disclosed
Data for a purpose unconnected with the Project;
39.1.24
any Loss or Claim made or brought by any Injurious Affection Party,
and in the case of Clauses 39.1.1 to 39.1.24 whether arising out of the act, neglect or
omission of the DBFO Co, its Funders, agents, contractors or sub-contractors of any
tier or its or their employees.
39.2 Savings
39.2.1
The DBFO Co's liability to the Secretary of State arising under any
indemnity in this Agreement shall be without prejudice to any other right
or remedy available to the Secretary of State and in particular shall not
prejudice in any way the ability of the Secretary of State to enforce any
guarantee given pursuant to Clause 4 [Guarantees] at any time and in any
manner whatsoever.
39.2.2
The indemnity by the DBFO Co under any provision of this Agreement
shall be without limitation to any indemnity by the DBFO Co under any
other provision of this Agreement.
39.2.3
The DBFO Co shall not be liable under Clause 39.1 for any Loss or Claim
to the extent arising out of:
39.2.3.1 any failure of the Secretary of State to comply with its
obligations under this Agreement or any applicable Law; or
39.2.3.2 any act or decision of the Department's Nominee where such
act or decision is carried out or made in excess of the
authority vested in him from time to time by the Secretary of
State unless and save to the extent that such act or decision is
subsequently ratified by the Secretary of State; or
39.2.3.3 any liability of the Secretary of State to Network Rail pursuant
to clause 5 of the Network Rail Agreement save to the extent
that such liability is for compensation for injury or damage
which arises as a direct consequence of the Operations or the
performance of or failure to perform any obligation of the
DBFO Co under this Agreement.
39.3 Conduct of Claims Subject to DBFO Co's Indemnities
39.3.1
If the Secretary of State receives any notice, demand, letter or other
document concerning any Claim from which it appears that the Secretary
of State is or may become entitled to indemnification under this
Agreement, the Secretary of State shall give notice in writing to the DBFO
Co as soon as reasonably practicable.
39.3.2
Subject to Clauses 39.3.3, 39.3.4, 39.3.5 and 39.3.6 and, where applicable,
the provisions of Clause 28 [Statutory Undertakers] and Clause 29 [Other
Functions of the Secretary of State], on the giving of a notice pursuant to
Clause 39.3.1 the DBFO Co shall, be entitled to and shall resist the Claim
in the name of the Secretary of State at its own expense and shall have the
conduct of any defence, dispute, compromise or appeal of the Claim and
of any incidental negotiations, and the Secretary of State will give the
DBFO Co all reasonable cooperation, access and assistance for the
purposes of considering and resisting such Claim.
39.3.3
With respect to any Claim subject to Clause 39.3.2:
39.3.3.1 the DBFO Co shall keep the Secretary of State fully informed
and consult with him about the conduct of the Claim;
39.3.3.2 to the extent that the Secretary of State is not entitled to be
indemnified by the DBFO Co for all of the liability arising out
of the act or omission which is the subject of the Claim, no
action shall be taken pursuant to Clause 39.3.2 which shall
increase the amount of any payment to be made by the
Secretary of State in respect of that part of the Claim which is
not covered by the indemnity from the DBFO Co; and
39.3.3.3 the DBFO Co shall not pay or settle such Claim without the
consent of the Secretary of State, such consent not to be
unreasonably withheld or delayed; provided that such consent
shall not be required to the payment or settlement of a Claim
subject to the indemnity in Clause 39.1.6 if the Claim is paid
or settled in full and the amount of such payment or settlement
does not exceed £20,000 (in December 2002 prices).
39.3.4
The Secretary of State shall be free to pay or settle any Claim on such
terms as he may, in his absolute discretion, think fit and without prejudice
to his rights and remedies under this Agreement if:
39.3.4.1 within 28 days of the notice from the Secretary of State under
Clause 39.3.1 the DBFO Co fails to notify the Secretary of
State of its intention to dispute the Claim; or
39.3.4.2 the DBFO Co fails to comply in any material respect with the
provisions of Clause 39.3.3.
39.3.5
The Secretary of State shall be free at any time to give notice to the DBFO
Co that he is taking over the conduct of any defence, dispute, compromise
or appeal of any Claim subject to Clause 39.3.2 or of any incidental
negotiations. Upon receipt of such notice the DBFO Co shall promptly
take all steps necessary to transfer the conduct of such Claim to the
Secretary of State and shall provide to the Secretary of State all
reasonable cooperation, access and assistance for the purposes of
considering and resisting such Claim. If the Secretary of State gives any
notice pursuant to this Clause 39.3.5, then the DBFO Co shall be released
from its indemnity in respect of such Claim save where such notice was
given as a consequence of a failure of the DBFO Co to deal properly with
any such Claim.
39.3.6
The DBFO Co shall have no rights under Clause 39.3.2 to conduct or resist
any Claim which is the subject of the indemnity in Clause 39.1.24 and the
provisions of Clauses 39.3.3, 39.3.4 and 39.3.5 shall not apply in relation
to such a Claim.
39.4 Secretary of State's Indemnities
The Secretary of State shall indemnify and keep indemnified the DBFO Co in respect
of:
39.4.1
any Loss or Claim to the extent resulting from any negligent act or
omission of the Secretary of State, his agents, employees or other
contractors (not being employed by the DBFO Co) save in respect of:
39.4.1.1 the matters referred to in Clauses 17.5 [Enforcement of Rights
against Third Parties], 36.5 [Defects in Additional Works],
39.1.4, 39.1.9, 39.1.21, 39.1.23 and 39.1.24;
39.4.1.2 acts or omissions occurring prior to the date of this Agreement;
39.4.1.3 omissions occurring between the date of this Agreement and
the O&M Commencement Date which affect the condition of
the Existing Road but do not constitute a breach by the
Secretary of State of his obligations under Clause 14.1.4.
39.4.2
the costs of acquiring all land or Rights in respect of land the subject of the
rights of access and occupation set out in Clause 8.1 [Access for the
DBFO Co] other than:
39.4.2.1 any costs arising from any matter referred to in Clauses 39.1.6
and 39.1.24; and
39.4.2.2 without prejudice to Clause 39.4.2.1, the costs of carrying out
any CPA Works;
39.4.3
any Loss to be borne by the Secretary of State in accordance with Clause
17.5 [Enforcement of Rights against Third Parties];
39.4.4
any Loss which is to be borne by the Secretary of State in accordance with
Clause 37 [Force Majeure];
39.4.5
any Loss which is to be borne by the Secretary of State in accordance with
Clause 36.5.4 [Defects in Additional Works].
39.5 Disclaimer
Save as expressly provided in Clause 39.4 [Secretary of State's Indemnities], the
Secretary of State shall not under any circumstances be liable to the DBFO Co whether
in contract, tort, by statute or otherwise and whether or not arising from any negligence
on the part of the Secretary of State or any of his agents or employees, for any Claims
or Losses of any person arising out of, or in the course of or in connection with, the
Project. This Clause 39.5 [Disclaimer] shall not apply in relation to:
39.5.1
any failure by the Secretary of State to make proper payment to the DBFO
Co in accordance with the terms of this Agreement;
39.5.2
any negligent act or omission of the Secretary of State or any of his agents
or employees giving rise to death or personal injury; and
39.5.3
any liability of the Secretary of State for any breach of his obligations
under this Agreement, save where (and to the extent that) the DBFO Co
has an express remedy under this Agreement in respect of such breach,
which remedy shall be exhaustive of its rights in respect of such breach.
39.6 Conduct of Claims Subject to Secretary of State's Indemnities
39.6.1
If the DBFO Co receives any notice, demand, letter or other document
concerning any Claim from which it appears that the DBFO Co is or may
become entitled to indemnification under this Agreement, the DBFO Co
shall give notice in writing to the Secretary of State as soon as reasonably
practicable.
39.6.2
Subject to Clauses 39.6.3 and 39.6.4, on the giving of a notice pursuant to
Clause 39.6.1 the Secretary of State shall be entitled to resist the Claim in
the name of the DBFO Co at his own expense and to have the conduct of
any defence, dispute, compromise or appeal of the Claim and of any
incidental negotiations, and the DBFO Co will give the Secretary of State
all reasonable cooperation, access and assistance for the purposes of
considering and resisting such Claim.
39.6.3
With respect to any Claim subject to Clause 39.6.2:
39.6.3.1 the Secretary of State shall keep the DBFO Co fully informed
and consult with it about the conduct of the Claim;
39.6.3.2 to the extent that the DBFO Co is not entitled to be indemnified
by the Secretary of State for all of the liability arising out of
the act or omission which is the subject of the Claim, no
action shall be taken pursuant to Clause 39.6.2 which shall
increase the amount of any payment to be made by the DBFO
Co in respect of that part of the Claim which is not covered by
the indemnity from the Secretary of State; and
39.6.3.3 the Secretary of State shall not pay or settle such Claim
without the consent of the DBFO Co, such consent not to be
unreasonably withheld or delayed.
39.6.4
The DBFO Co shall be free to pay or settle the Claim on such terms as it
may in its absolute discretion think fit and without prejudice to its rights
and remedies under this Agreement if:
39.6.4.1 within 28 days of the notice from the DBFO Co under Clause
39.6.1 the Secretary of State fails to notify the DBFO Co of
its intention to dispute the Claim; or
39.6.4.2 the Secretary of State fails to comply in any material respect
with the provisions of Clause 39.6.3.
40.
DEFAULT
40.1 Events of Default
The following shall be Events of Default:
40.1.1
the occurrence of any of the following in respect of the DBFO Co or
Holdco or any Contracting Associate or any Sponsor:
40.1.1.1 any meeting of creditors of the person in question being
convened or held to discuss any arrangement or composition
with or for the benefit of its creditors (including any voluntary
arrangement as defined in the Insolvency Act 1986) or any
such arrangement or composition being proposed or entered
into by or in relation to the person in question (other than for
the purposes of a bona fide solvent company re-organisation
or amalgamation which has been consented to in advance by
the Secretary of State);
40.1.1.2 a supervisor, receiver, administrator, administrative receiver or
other encumbrancer taking possession of or being appointed
over, or any distress, execution or other process being levied
or enforced (and not being discharged within 7 days) upon the
whole or any material part of the assets of the person in
question;
40.1.1.3 the person in question ceasing or threatening to cease to carry
on business, or being or becoming unable to pay its debts
within the meaning of Section 123 of the Insolvency Act 1986
(without the need to prove any fact or matter to the
satisfaction of the court) but for these purposes substituting
the figure of £10,000 for the sum of £750 in Section 123(1)(a)
of that Act;
40.1.1.4 a notice of intention to appoint an administrator being issued
or filed or a petition being presented or an application being
made, or a meeting being convened for the purpose of
considering a resolution, for or with a view to the making of
an administration order or for the winding-up, bankruptcy or
dissolution of the person in question (other than for the
purposes of a bona fide solvent internal reorganisation or
amalgamation which has been consented to in advance by the
Secretary of State) unless such petition or application (other
than in the case of an administration petition or application) is
withdrawn, set aside or revoked within 14 days of its being
made; or
40.1.1.5 if the person in question shall suffer any event analogous to
any of the foregoing in any jurisdiction in which it is
incorporated or resident,
but in the case of any of the foregoing affecting a Contracting Associate or
Holdco or the Sponsor, only if the occurrence will have a material adverse
effect on the ability of the DBFO Co to perform its obligations under this
Agreement;
40.1.2
the occurrence of any change in control as referred to in Clause 45.3
[Change in Control];
40.1.3
the DBFO Co or Holdco or a Contracting Associate or the Sponsor sells,
transfers, leases or otherwise disposes of the whole or any part (which is
material in the context of the performance of the DBFO Co's obligations
under this Agreement) of its undertakings, properties or assets by a single
transaction or a number of transactions (whether related or not and
whether at the same time or over a period of time and other than in respect
of the grant of security pursuant to Clause 45.2.2) without prior consent of
the Secretary of State, but in the case of Holdco or a Contracting
Associate or the Sponsor, only if the disposal would have a material
adverse effect on the ability of the DBFO Co to perform its obligations
under this Agreement;
40.1.4
the failure of the conditions referred to in Clause 7.1 [Conditions to
Commencement] (other than Clause 7.1.6) to be satisfied by the date
referred to in Clause 7.2 [Satisfaction of Conditions];
40.1.5
the repudiation of this Agreement by the DBFO Co;
40.1.6
the DBFO Co commits a serious breach of its obligations under this
Agreement, including, without limitation, the DBFO Co otherwise than as
a consequence of a breach by the Secretary of State of his obligations
under this Agreement:
40.1.6.1 abandoning the Works; or
40.1.6.2 ceasing to maintain or operate the Project Facilities or any, or
any material part of any, of them;
40.1.7
the DBFO Co neglects persistently to comply with any of its obligations
under this Agreement and following the issue of a Persistent Neglect
Notice in accordance with Clause 26.7.1 any one or more of the following
occurs:
40.1.7.1 where such Persistent Neglect Notice relates to breach of an
obligation which is capable of remedy, the DBFO Co fails to
remedy such breach in accordance with the Persistent Neglect
Remedy Programme agreed or determined in accordance with
Clause 26.7.3;
40.1.7.2 the DBFO Co fails to comply with its obligations under Clause
26.7.2;
40.1.7.3 the DBFO Co fails to implement its Persistent Neglect Notice
Plan; or
40.1.7.4 the DBFO Co breaches its undertaking given in a Persistent
Neglect Undertaking within the Relevant PN Period after the
issue of the relevant Persistent Neglect Notice, provided that
where the relevant Persistent Neglect Notice has been issued
in respect of a breach by the DBFO Co which is a breach of a
specific obligation under this Agreement and also a breach of
any of Clauses 3.5, 3.6 and/or 3.7 then for the purposes of
determining whether a subsequent breach by the DBFO Co
constitutes a breach of the relevant Persistent Neglect
Undertaking a breach of Clauses 3.5, 3.6 and/or 3.7 which is
not also a breach of the relevant specific obligation shall be
ignored;
40.1.8
without limitation to the generality of Clause 40.1.7:
40.1.8.1 the DBFO Co receiving a total number of three or more
Warning Notices in any 5 year period unless the third such
Warning Notice to be issued to the DBFO Co within that 5
year period is the first of those Warning Notices to be issued
in respect of a material breach of the DBFO Co's obligations
(rather than for the accumulation of Penalty Points in excess
of the threshold specified in Clause 26.3) in which case an
Event of Default under this Clause 40.1.8.1 shall not occur in
relation to those three Warning Notices until the service of a
further Warning Notice within the same 5 year period
irrespective of whether such Warning Notice is issued in
respect of a material breach of the DBFO Co's obligations or
for the accumulation of Penalty Points in excess of the
threshold specified in Clause 26.3;
40.1.8.2 the DBFO Co being awarded a total of 100 or more Penalty
Points in any 1 year period;
40.1.9
any of the warranties in or referred to in Clauses 38.1.8 to 38.1.14
(inclusive) shall prove to be materially untrue or incorrect in the case of
the warranties contained in Clauses 38.1.8 and 38.1.12 as at the date of
this Agreement or, in the case of the warranties contained in Clauses
38.1.9, 38.1.10, 38.1.11, 38.1.13 and 38.1.14 at any time and, in the case
of Clause 38.1.14 where the untruth or incorrect subject matter of such
warranty relates to the enforceability of a Project Document, the
unenforceability of such Project Document would:
40.1.9.1 materially adversely affect the ability of the DBFO Co to
perform its obligations under this Agreement or any right of
the Secretary of State under this Agreement or the Secretary
of State's ability to enforce any such right or his ability to
perform his obligations under this Agreement or to perform
any statutory duty; or
40.1.9.2 be inconsistent with the Secretary of State's statutory duties or
the provisions of this Agreement; or
40.1.9.3 give rise to or be in breach of any Legal Requirement;
40.1.10
any of the Project Documents:
40.1.10.1 or this Agreement:
40.1.10.1.1
ceases to be in full force and effect; or
40.1.10.1.2
no longer constitutes the valid, binding and
enforceable obligations of the parties thereto
other than the Secretary of State,
except in accordance with its terms or where a substitute
agreement has been entered into in accordance with Clause
2.3.2 or where this Agreement ceases to be in full force and
effect due to any act of the Secretary of State which he is not
entitled to carry out under this Agreement or any failure to act
by the Secretary of State where he is required so to act under
this Agreement or it is necessary for him to so act in order
either to authorise his entering into this Agreement or his
performance of his obligations under this Agreement; or
40.1.10.2 is materially amended, varied or departed from (other than in
accordance with Clause 2.3.2),
and, in any such case where the DBFO Co is not a party to such Project
Document or, in the case of Clause 40.1.10.2, where the Project Document
is departed from by a party other than the DBFO Co, this would
materially adversely affect the ability of the DBFO Co to perform its
obligations under this Agreement or any right of the Secretary of State
under this Agreement or his ability to enforce any such right or to perform
his obligations under this Agreement or to perform any statutory duty;
40.1.11
the DBFO Co fails to pay any sum due to the Secretary of State hereunder
(which sum is not in dispute) and such failure continues for 120 days after
the Secretary of State has notified the DBFO Co that such sum has not
been paid; or
40.1.12
any breach by the DBFO Co of Clause 10.3 [No Payments to Protestors].
40.2 Notification of Events of Default
The DBFO Co undertakes that it shall notify the Secretary of State of the occurrence
and details of any Event of Default and of any event or circumstance which would,
with the passage of time or otherwise, constitute or give rise to an Event of Default, in
either case promptly upon the DBFO Co becoming aware of the occurrence thereof.
40.3 Remedies
Upon the occurrence of an Event of Default (which has not been remedied at the time
the Secretary of State first exercises such option), the Secretary of State may at his
option and without prejudice to any of his other rights or remedies and to any rights of
action which shall accrue or shall have already accrued to the Secretary of State do
any or all of the following:
40.3.1
subject to Clause 40.3A, suspend payment of the DBFO Payment and any
other payments otherwise due hereunder or retain any amount due from the
Secretary of State to the DBFO Co howsoever arising;
40.3.2
apply any sums standing to the credit of the Retention Account in
accordance with Clause 19.7.11;
40.3.3
without determining this Agreement, by notice in writing having immediate
effect suspend performance by the DBFO Co of all or part only of the
functions to be performed by it under this Agreement until such time as the
DBFO Co shall have demonstrated to the reasonable satisfaction of the
Secretary of State that it will perform and is capable of performing its
obligations under this Agreement and thereafter himself perform or
procure a third party to perform such part of the functions for such period
provided that the Secretary of State shall only be entitled to suspend
performance by the DBFO Co in accordance with this Clause 40.3.3 to the
extent that:
40.3.3.1
members of the public are unable to use the Project
Facilities (or part thereof) either safely, without undue
delay or at all; or
40.3.3.2
such suspension relates to functions which are directly
connected to the Event of Default in question or which have
been affected by such Event of Default;
40.3.4
in the case of the Events of Default referred to in Clauses 40.1.1 to 40.1.5
(inclusive), 40.1.7, 40.1.8, 40.1.11 and 40.1.12 and any other Event of
Default which is incapable of remedy, terminate the Agreement in its
entirety by notice in writing having immediate effect. For the purposes of
this Clause 40.3.4 a breach shall be treated as "incapable of remedy" if it
is as a matter of fact not capable of remedy by the DBFO Co provided
that, where the breach would otherwise be treated as irremediable by
reason only of the fact that it has occurred and the breach constitutes the
occurrence of a particular default or series of defaults, such breach shall
be deemed to be capable of remedy and to have been remedied if, within
the period referred to in Clause 40.3.5,:
40.3.4.1 the matter or matters giving rise to the effects of the default or
defaults have been duly corrected;
40.3.4.2 the consequence of the default or defaults have been duly
corrected; and
40.3.4.3 all reasonable steps have been taken to prevent a recurrence of
the default or defaults;
40.3.5
in the case of any Event of Default other than those referred to in Clause
40.3.4, serve notice of default on the DBFO Co requiring the DBFO Co,
at the DBFO Co's option, either:
40.3.5.1 to remedy the breach or breaches referred to in such notice of
default within 28 days of such notice (or such longer period as
may be agreed by the Secretary of State in his absolute
discretion); or
40.3.5.2 to put forward within 14 days of such notice a reasonable
programme for the remedying of the breach or breaches, such
programme to specify in reasonable detail the manner in
which such breach or breaches is or are proposed to be
remedied and the latest date by which it is proposed that such
breach or all such breaches shall be remedied, and the
provisions of Clause 40.5 [Termination in Full] shall apply.
40.3A Suspension of Payments
40.3A.1 The rights of the Secretary of State under Clause 40.3.1 to suspend
payment of or retain the amount of any payment which would have been
due and payable to the DBFO Co but for the exercise by the Secretary of
State of his rights under such Clause (together "Relevant Payments") shall
be exercisable in accordance with and subject to the following provisions
of this Clause 40.3A.
40.3A.2
In this Clause 40.3A:
"Service Obligation" means the Primary Service Obligations together
with all other obligations of the DBFO Co under this Agreement which
are incidental to the Primary Service Obligations but excluding any
obligations of the DBFO Co to make any payment of monies to the
Secretary of State under this Agreement.
"Primary Service Obligations" means activities in connection with the
design, construction, completion, commissioning or testing of the Works
and any Additional Works Services, the operation and maintenance of the
Project Facilities or any other works or operations on or in relation to the
Project Facilities, the Site or the Adjacent Areas required by, or in
accordance with, this Agreement (including, without limitation, the
performance of any Maintenance Works, Routine Maintenance, Trial
Maintenance Work and traffic management, the provision of Reports,
compliance with the Design and Certification Procedure, the Review
Procedure, the Liaison Procedures and the Quality Plans, the effecting of
insurance, the maintenance of records and compliance with the
requirements of this Agreement relating to Relevant Authorities, Third
Party Authorised Functions and Users and other Interested Parties).
40.3A.3
If the DBFO Co is performing none of the Service Obligations at any time
following the occurrence of an Event of Default, the Secretary of State
may suspend or retain Relevant Payments in full, without prejudice to the
Secretary of State's obligations to resume the making of Relevant
Payments under Clause 40.3A.5 if performance of the Service
Obligations is subsequently resumed in full or in part, as the case may
be.
40.3A.4
For so long as the DBFO Co performs all of the Service Obligations in
full continuously and at all times following the occurrence of an Event of
Default, the Secretary of State shall continue to make Relevant Payments
in full (subject to the Secretary of State's rights of set-off under Clause
33.9 and to the prior deduction of any costs reasonably incurred by the
Secretary of State arising from or in connection with such Event of
Default, including without limitation all administrative expenses of the
Secretary of State including general staff costs and overheads).
40.3A.5
If and for so long as neither Clause 40.3A.3 nor Clause 40.3A.4 applies
following the occurrence of an Event of Default, the Secretary of State
may suspend or retain Relevant Payments in full until such time as the
DBFO Co has demonstrated to the reasonable satisfaction of the
Secretary of State that it is capable of performing all of the Service
Obligations and the DBFO Co resumes such performance. Upon
resumption of such performance, and subject to there being no continuing
Event of Default or other material unperformed obligations under this
Agreement:
40.3A.5.1 the Secretary of State shall resume the making of Relevant
Payments with effect from, and in respect of periods
commencing after, such resumption of performance
(provided that if the amount of the costs referred to in
Clause 40.3A.5.2.2 exceeds the amount of the Accrued
Relevant Payments (as defined in Clause 40.3A.5.2.1) the
Secretary of State shall be entitled to deduct the amount of
such excess from such Relevant Payments until discharged);
and
40.3A.5.2 subject to the DBFO Co performing to the satisfaction of the
Secretary of State all of the Service Obligations falling due
to be performed during the period of not less than one month
after such resumption of such performance, the Secretary of
State shall pay to the DBFO Co an amount equal to the
lesser of:
40.3A.5.2.1
such proportion of those payments (the
"Accrued Relevant Payments")
constituting the Relevant Payments
accrued (but unpaid) during the period
(the "Default Period") from the occurrence
of the relevant Event of Default to the date
of such resumption of performance as
equates to the proportion which the actual
amount of the Service Obligations
performed by the DBFO Co during the
Default Period bears to the full amount of
Service Obligations falling due to be
performed by it during such Period; and
40.3A.5.2.2
the amount of the Accrued Relevant
Payments less the amount of any costs of
the Secretary of State arising from or in
connection with the relevant Event of
Default, including without limitation all
costs reasonably incurred by him in
performing or engaging others to perform
the functions of the DBFO Co and all
administrative expenses of the Secretary
of State including general staff costs and
overheads.
40.4 Suspension under Clause 40.3.3
In the case of a suspension of the performance by the DBFO Co under this Agreement
in accordance with Clause 40.3.3, the DBFO Co shall reimburse the Secretary of State
for all costs incurred by him in performing or engaging others to perform the functions
of the DBFO Co which are suspended (including, without limitation, the relevant
administrative expenses of the Secretary of State, including an appropriate sum in
respect of general staff costs and overheads).
40.5 Termination in Full
40.5.1
Where the DBFO Co puts forward a programme in accordance with Clause
40.3.5.2 the Secretary of State shall have 28 days within which to notify
the DBFO Co that he does not accept such programme as being
reasonable, failing which the Secretary of State shall be deemed to have
accepted such programme. Where the Secretary of State notifies the
DBFO Co that he does not accept such programme as being reasonable,
the parties shall endeavour within the following 7 days to agree any
necessary amendments to the programme put forward. In the absence of
agreement within such 7 day period, the question of whether or not the
programme (as the same may have been amended by agreement) is
reasonable may be referred by either Party to the Disputes Resolution
Procedure.
40.5.2
If:
40.5.2.1 the breach or breaches notified in a notice of default served
under Clause 40.3.5 is or are not remedied:
40.5.2.1.1
before the expiry of the period referred to in
Clause 40.3.5.1 (if applicable); or
40.5.2.1.2
where the DBFO Co puts forward a
programme pursuant to Clause 40.3.5.2
which has been accepted by the Secretary of
State or determined by the Disputes
Resolution Procedure as being reasonable, in
accordance with such programme; or
40.5.2.2 such programme as is put forward by the DBFO Co pursuant
to Clause 40.3.5.2 is rejected by the Secretary of State as not
being reasonable, and the Disputes Resolution Procedure does
not find against that rejection,
the Secretary of State may terminate this Agreement in its entirety by
notice in writing having immediate effect.
40.6 Savings
The rights of the Secretary of State under this Clause 40 [Default] are in addition and
without prejudice to any other right the Secretary of State may have to claim the
amount of any loss or damage suffered by the Secretary of State on account of the acts
or omissions of the DBFO Co, whether pursuant to any bond or guarantee given in
accordance with the requirements of this Agreement or otherwise.
41.
TERMINATION BY THE DBFO CO
41.1 DBFO Co Termination Events
The following are DBFO Co Termination Events:
41.1.1
the Government sequesters, requisitions or otherwise seizes the Project
Facilities or any, or any material part of any, of them otherwise than
pursuant to any express provision of this Agreement;
41.1.2
the Secretary of State shall fail to issue the Commencement Certificate on
or before the date which is 1 year after the date or issue determined in
accordance with Clause 7.3.1;
41.1.3
the Secretary of State shall be in material breach of its obligations under
Clause 8.1 [Access for DBFO Co] and such breach shall materially
adversely affect the ability of the DBFO Co to perform its obligations
under this Agreement for a period of not less than 180 days;
41.1.4
the Secretary of State or any successor of the Secretary of State under this
Agreement shall cease to be the highway authority in respect of the Project
Road or any material part of the Project Road (but excluding by way of
any temporary or permanent delegation of the whole or any part of his
statutory functions as highway authority);
41.1.5
the obligations of the Secretary of State under this Agreement shall
(without the prior consent of the DBFO Co, such consent not to be
unreasonably withheld or delayed) be novated or otherwise transferred
(whether by virtue of any Law or any scheme pursuant to any Law or
otherwise) to another person other than:
41.1.5.1 any department of the Government or a Minister of the Crown
pursuant to the Ministers of the Crown Act 1975; or
41.1.5.2 any person who is not a department or office of the
Government whose obligations under this Agreement are
guaranteed by the Government or any department or office of
the Government; or
41.1.6
the Secretary of State shall fail to pay any sum due to the DBFO Co
hereunder (which sum is not in dispute), and such failure continues for 90
days.
41.2 Termination Procedure
41.2.1
Upon the occurrence of a DBFO Co Termination Event and so long as
such DBFO Co Termination Event is subsisting, the DBFO Co may, at its
option, serve notice on the Secretary of State of the occurrence of such
DBFO Co Termination Event. If the relevant matter or circumstance has
not been rectified or remedied by the Secretary of State or otherwise within
60 days of such notice, the DBFO Co may serve a further notice on the
Secretary of State terminating this Agreement with immediate effect.
41.2.2
Upon a termination of this Agreement pursuant to Clause 41.2.1, the
DBFO Co shall be entitled to compensation in accordance with Clause 44
[Compensation on Termination].
41.2.3
The DBFO Co may give notice to the Secretary of State terminating this
Agreement only in accordance with the provisions of this Clause 41.2
[Termination Procedure], Clause 42.2.1, Clause 42.3.1 or Clause 42.4.1.
42.
NON-DEFAULT TERMINATION
42.1 Expiry of Term
This Agreement shall terminate automatically upon the Expiry Date unless it shall have
previously been terminated in accordance with the provisions of this Agreement.
42.2 Termination for Force Majeure
42.2.1
In the circumstances referred to in Clause 37.5 [Right to Terminate] and so
long as such circumstances continue, either the Secretary of State or the
DBFO Co may terminate this Agreement by notice to the other having
immediate effect.
42.2.2
In the event of any termination pursuant to Clause 42.2.1, the Secretary of
State shall pay to the DBFO Co the amounts determined in accordance
with Clause 44.2 [Pre-Commencement Termination] or Clause 44.3 [Post-
Commencement Termination], as the case may be.
42.3 Termination on Relevant Change in Law
42.3.1
If a Relevant Change in Law comes into effect which renders illegal or
impossible (but not merely more expensive) all or substantially all of the
DBFO Co's obligations under this Agreement, then either Party may
terminate this Agreement by notice to the other.
42.3.2
In the event of any termination pursuant to Clause 42.3.1, the Secretary of
State shall pay to the DBFO Co the amounts determined in accordance
with Clause 44.2 [Pre-Commencement Termination] or Clause 44.3 [Post-
Commencement Termination] (as the case may be) and Clause 44.5
[Additional Compensation].
42.4 Termination under Clause 27
42.4.1
If the entitlement of the DBFO Co to terminate this Agreement under
Clause 27.5.3 arises, then the DBFO Co may terminate this Agreement by
notice to the Secretary of State having immediate effect.
42.4.2
In the event of any termination pursuant to Clause 42.4.1 the Secretary of
State shall pay to the DBFO Co the amounts determined in accordance
with Clause 44.2 [Pre-commencement Termination] or Clause 44.3 [Post-
Commencement Termination] (as the case may be) and Clause 44.5.7.
42.5 Schedule 12 Termination
42.5.1
If the DBFO Co serves a notice of objection in accordance with paragraph
2.1.5 of Annex 1 to Part 1 of Schedule 12 and the Parties are unable,
despite having used reasonable endeavours, to reach a solution which is
acceptable to both Parties within 90 days after receipt by the Secretary of
State of such notice, then the Secretary Of State may terminate this
Agreement by notice to the DBFO Co having immediate effect.
42.5.2
In the event of any termination pursuant to Clause 42.5.1:
42.5.2.1
if the Department's Change to which the DBFO
Co objected in accordance with paragraph 2.1.5 of Annex 1
was a Department's Change which was required to be
implemented in order for the Secretary of State to comply
with his statutory duties and/or functions, then the Secretary
of State shall pay to the DBFO Co the amounts determined in
accordance with Clause 44.2 [Pre-commencement
Termination] or Clause 44.3 [Post-Commencement
Termination] (as the case may be) and Clause 44.5.7; or
42.5.2.2
if the Department's Change to which the DBFO
Co objected in accordance with paragraph 2.1.5 of Annex 1
was not a Department's Change which was required to be
implemented in order for the Secretary of State to comply
with his statutory duties and/or functions, then the Secretary
of State shall pay to the DBFO Co the amounts determined in
accordance with Clause 44.2 [Pre-Commencement
Termination] or Clause 44.3 [Post-Commencement
Termination] and Clause 44.5 [Additional Compensation] (as
the case may be).
43.
EFFECT OF TERMINATION
43.1 Step-in Rights
43.1.1
Without prejudice to Clause 26.5 [Step-In Rights], in the event that the
Secretary of State has given notice of termination under Clause 40.3.4
[Remedies], Clause 40.5 [Termination in Full], Clause 42.2 [Termination
for Force Majeure], Clause 42.3 [Termination on Relevant Change in
Law] or Clause 42.5 [Schedule 12 Termination] or the DBFO Co has
given notice of termination under Clause 41.2 [Termination Procedure],
Clause 42.2 [Termination for Force Majeure], Clause 42.3 [Termination
on Relevant Change in Law] or Clause 42.4 [Termination under Clause
27], and, in any such case, members of the public shall be unable to use
the Project Facilities either safely, without undue delay or at all or, where
applicable in the case of Clause 43.1.1.2, such action relates to functions
which are directly connected to the event giving rise to such termination or
which have been affected by such event, then:
43.1.1.1 the Secretary of State may by 7 days notice to the DBFO Co
expel the DBFO Co from the Site and the Adjacent Areas
without thereby avoiding this Agreement or releasing the
DBFO Co from any of its obligations or liabilities under this
Agreement; and
43.1.1.2 whether or not he exercises the right under Clause 43.1.1.1, the
Secretary of State may take, or employ others to take, such
steps in relation to the operation and maintenance of the
Project Facilities as he may think fit to protect the position of
such members of the public, or address the functions which
are directly connected to such event giving rise to such
termination or which have been affected by such event and the
Secretary of State may recover all costs of so doing
(including, without limitation, the relevant administrative
expenses of the Secretary of State, including an appropriate
sum in respect of general staff costs and overheads) from the
DBFO Co provided that where the DBFO Co (or in the case
of Clauses 42.2 and 42.3 either party) has validly served a
notice of termination under Clause 41.2, 42.2, 42.3 or 42.4
the Secretary of State shall not be entitled to recover such
costs.
43.1.2
For the avoidance of doubt, subject to the exercise by the Secretary of State
of any right under Clause 43.1.1, the Parties shall continue to perform
their obligations under this Agreement notwithstanding the giving of any
notice of termination until the termination of this Agreement becomes final
in accordance with the provisions of this Clause 43 [Effect of
Termination].
43.1.3
Upon any step-in by the Secretary of State (whether pursuant to this
Clause 43.1, Clause 41.3 or Clause 26.5) the Secretary of State agrees (to
the extent that to do so does not constitute a fetter upon his discretion in
the exercise of his statutory functions) to act in accordance with Good
Industry Practice in the exercise of his rights and obligations in relation to
such step-in provided that this Clause 43.1.3 shall not require him to put
the Project Facilities or any part thereof in any better state or condition
than they are in at the date such step-in takes effect. Any inspections
carried out to ascertain such condition at and/or after such step-in shall be
undertaken at the cost of the DBFO Co.
43.2 Disputed Termination
43.2.1
Notwithstanding the provisions of Clauses 40.3 [Remedies], 40.5
[Termination in Full], 41.2 [Termination Procedure], 42.2 [Termination
for Force Majeure], 42.3 [Termination on Relevant Change in Law], and
Clause 42.4 [Termination under Clause 27], Clause 42.5 [Schedule 12
Termination] where either Party has given notice of termination of this
Agreement and the other Party has within 14 days of receipt of such notice
referred the question of whether or not the purported termination is
wrongful to the Disputes Resolution Procedure, termination of this
Agreement shall not take effect pursuant to such notice of termination
unless and until it is agreed by the Parties or finally determined in
accordance with the Disputes Resolution Procedure that such termination
is not wrongful.
43.2.2
If at any time a notice of termination has been received and a reference to
the Disputes Resolution Procedure has not been made pursuant to Clause
43.2.1, then either Party may (within the 14 day period referred to in
Clause 43.2.1) apply to the Court for injunctive or declaratory relief
(whichever shall be appropriate) in respect of such purported termination
and/or refer to the Court the question whether this Agreement has been
wrongfully terminated and, if so, the damages accruing therefrom, in
which event such matter shall be dealt with by the Court and not pursuant
to the Disputes Resolution Procedure. Termination of this Agreement
shall not take effect until it has been finally determined by the Court
whether or not injunctive or declaratory relief is to be granted. Any Court
proceedings shall be conducted by both Parties with due expedition.
43.2.3
If the Secretary of State has given notice of termination of this Agreement
to the DBFO Co and has exercised the right referred to in Clause 43.1.1.1,
then such termination shall be final notwithstanding a determination under
the Disputes Resolution Procedure that such termination was wrongful and
the DBFO Co shall not be entitled to access to any part of the Site or
Adjacent Areas but without prejudice to any rights that the DBFO Co may
have as a result of such wrongful termination.
43.3 Savings
43.3.1
Save as otherwise expressly provided in this Agreement:
43.3.1.1 termination of this Agreement shall be without prejudice to any
accrued rights and obligations under this Agreement as at the
date of termination (including without limitation the right of
the Secretary of State to recover damages from the DBFO Co
where the termination has arisen as a result of an Event of
Default); and
43.3.1.2 termination of this Agreement shall not affect the continuing
rights and obligations of the DBFO Co and the Secretary of
State under Clauses 8.6.2, 16.7 [Removal of Signs], 20
[Insurance], 24 [Reports and Information], 25 [Records], 30.2
[Claims Against Third Parties], 32 [Calculation of Payments],
33 [Invoicing and Payment], 39 [Indemnities], 42.2
[Termination for Force Majeure], 42.3 [Termination on
Relevant Change in Law], Clause 42.4 [Termination under
Clause 27], Clause 42.5 [Schedule 12 Termination], 44
[Compensation on Termination], 48 [Taxes], 49 [Intellectual
Property] and 50 [Confidentiality], 52 [Disputes Resolution
Procedure], 57 [Governing Law and Jurisdiction], Schedules
14 [Records and Reports] and 15 [Disputes Resolution
Procedure] and this Clause 43 [Effect of Termination] or
under any other Clause which is expressed to survive
termination or which is required to give effect to such
termination or the consequences of such termination.
Save as provided in this Clause 43.3 [Savings], all rights and obligations
of the Secretary of State and the DBFO Co under this Agreement shall
cease and be of no further force and effect upon termination of this
Agreement.
43.3.2
Notwithstanding any breach of this Agreement by either Party and without
prejudice to any other rights which the other Party may have in relation
thereto, the other Party may elect to continue to treat this Agreement as in
full force and effect and to enforce its rights hereunder, and failure of
either Party to exercise any right hereunder including any right to
terminate this Agreement and any right to claim damages shall not be
deemed a waiver of such right for any continuing or subsequent breach.
43.4 Transfer of Assets
On the termination of this Agreement (or, in the case of Clause 43.4.5 and where the
Secretary of State has exercised his step-in rights under Clause 43.1.1, on and for the
duration of the exercise by the Secretary of State of such step-in rights):
43.4.1
the rights of access under Clause 8.1 [Access for DBFO Co] shall
automatically terminate;
43.4.2
if, prior to the issue of the Completion Certificate, the DBFO Co shall
transfer to and there shall vest in the Secretary of State such part of the
Works as shall have been carried out, and if the Secretary of State so
elects:
43.4.2.1 the Design Contract and/or the Construction Contract shall be
novated to the Secretary of State (and upon such election the
DBFO Co shall take all necessary steps as soon as reasonably
practicable to procure such novation to the Secretary of State)
and all Plant and all materials on the Site or adjacent thereto
shall remain available to him for the purposes of completing
the Works; and
43.4.2.2 the Construction Plant shall remain available to the Secretary
of State for the purposes of completing the Works subject to
payment therefor of a reasonable hire charge;
43.4.3
the DBFO Co shall hand over to and there shall vest in the Secretary of
State any interest of the DBFO Co in the Project Facilities, which in the
case of the termination of this Agreement in accordance with Clause 42.1
[Expiry of Term], shall be in the state required in accordance with Clause
19 [Handback];
43.4.4
if the Secretary of State so elects, the Operation and Maintenance Contract
shall be novated to him (and upon such election the DBFO Co shall take
all necessary steps as soon as practicable to procure such novation to the
Secretary of State);
43.4.5
the Secretary of State shall have an option to purchase or (where the
Secretary of State has exercised his step-in rights under Clause 43.1.1)
hire from the DBFO Co or any of its Associated Companies at a fair
market value (as between willing counterparties, with any disputes as to
such fair market value being determined by the Expert) and free from any
security interest all or any part of the stocks of material, road vehicles,
spare parts and other moveable property owned by the DBFO Co, the
Contractor or the Operator and reasonably required in connection with the
operation and maintenance of the Project Facilities. In calculating any
sums payable by the Secretary of State under this sub-clause the Secretary
of State shall receive a credit of a fair and reasonable sum to reflect any
payment made under Clause 44.4.1.6;
43.4.6
the DBFO Co shall deliver to the Secretary of State or his designee ''as
built drawings'' showing all alterations made since the commencement of
operation for the Project Facilities;
43.4.7
the DBFO Co shall deliver to the Secretary of State operation and
maintenance manuals for the Project Facilities, including without
limitation in respect of communications, signalling and other systems in
service at the Termination Date;
43.4.8
the DBFO Co shall procure that the benefit of all manufacturer's
warranties in respect of mechanical and electrical equipment included in
the Project Facilities is assigned to the Secretary of State;
43.4.9
the DBFO Co shall deliver to the Secretary of State or his designee the
records referred to in Clause 25.4.3;
43.4.10
If the Secretary of State so elects, any of the contracts of engagement
between the DBFO Co and those persons listed in Clause 45.4.1 (insofar
as they relate to operation and maintenance) specified in such election
shall be novated to the Secretary of State (and upon such election the
DBFO Co shall take all necessary steps as soon as reasonably practicable
to procure such novation to the Secretary of State).
43.5 Handover
On the termination of this Agreement for any reason:
43.5.1
the DBFO Co shall cooperate fully with the Secretary of State and any
successor operator of the Project Facilities in order to achieve a smooth
transfer of the operation of the Project Facilities, so as to protect the safety
of and avoid undue delay or inconvenience to the members of the public;
43.5.2
the DBFO Co shall, as soon as practicable, remove from the Site and the
Adjacent Areas all Plant, materials, Construction Plant, temporary
buildings, road vehicles, spare parts and other property not required by the
Secretary of State pursuant to Clause 43.4.2 or acquired or hired by the
Secretary of State pursuant to Clause 43.4.5, and if it has not done so
within 28 days after any notice from the Secretary of State requiring it to
do so the Secretary of State may (without being responsible for any Loss)
remove and sell any such property and shall hold any proceeds less all
costs incurred to the credit of the DBFO Co;
43.5.3
the DBFO Co shall, within 1 week after the Termination Date, deliver to
the Department's Nominee:
43.5.3.1 keys to all traffic sign housings; and
43.5.3.2 lifting keys for all types of chamber covers; and
43.5.4
the DBFO Co shall, as soon as practicable vacate the Site and the Adjacent
Areas and shall leave the Site and the Adjacent Areas in a clean and
orderly condition.
44.
COMPENSATION ON TERMINATION
44.1 Termination Accounts
44.1.1
The DBFO Co shall procure that not later than 90 days after termination of
this Agreement pursuant to Clause 41 [Termination by the DBFO Co],
Clause 42.2 [Termination for Force Majeure], Clause 42.3 [Termination
on Relevant Change in Law], Clause 42.4 [Termination under Clause 27]
or Clause 42.5 [Schedule 12 Termination] (or such longer period as may
be agreed between the Department's Nominee and the DBFO Co's
auditors), the Termination Accounts shall be drawn up. The Termination
Accounts shall be audited by the DBFO Co's auditors and shall have
annexed thereto:
44.1.1.1 a report signed by the DBFO Co's auditors in respect of the
amount of the deductions to be made and the amount and
nature of any liabilities to be excluded pursuant to Clause
44.4 [Exclusions and Deductions from Compensation]; and
44.1.1.2 where the Secretary of State has a liability under this Clause
44 [Compensation on Termination] or under Clause 42.2
[Termination for Force Majeure], Clause 42.3 [Termination
on Relevant Change in Law], Clause 42.4 [Termination under
Clause 27] or Clause 42.5 [Schedule 12 Termination] to pay
the Pre-Commencement Costs, a report signed by the DBFO
Co's auditors as to the amount of such Pre-Commencement
Costs,
which reports shall, for the purposes of this Clause 44 [Compensation on
Termination], be deemed to form part of the Termination Accounts.
44.1.2
The Termination Accounts shall be presented to the Department's Nominee
for review. In order to enable the Department's Nominee to review the
Termination Accounts, the DBFO Co will ensure that it keeps up to date
and makes available at all reasonable times to the Department's Nominee
and its or the Secretary of State's professional advisers all books, records
and other information as may be reasonably required by the Department's
Nominee or its or the Secretary of State's professional advisers. The
DBFO Co shall and shall procure that its auditors shall cooperate with the
Department's Nominee and its or the Secretary of State's professional
advisers with regard to such review.
44.1.3
If the Department's Nominee does not within 60 days of presentation to it
of the Termination Accounts notify the DBFO Co that it agrees with the
basis of preparation of the Termination Accounts and the calculations
contained therein, the Parties shall attempt in good faith to reach
agreement in respect thereof. If they are unable to do so within 28 days of
the expiry of such 60 day period or the earlier notification by the
Department's Nominee that it does not agree such basis of preparation, any
matter over which there is disagreement may be referred to the Expert.
The determination by the Expert shall then be reflected in the Termination
Accounts which, as so amended, shall be final and binding upon the
Parties.
44.2 Pre-Commencement Termination
44.2.1
If the DBFO Co terminates this Agreement pursuant to Clause 41
[Termination by the DBFO Co] as a consequence of the occurrence of a
DBFO Co Termination Event prior to the date of issue of the
Commencement Certificate or this Agreement is terminated by either Party
pursuant to Clause 42.2.1 [Termination for Force Majeure], Clause 42.3
[Termination on Relevant Change in Law] or Clause 42.4 [Termination
under Clause 27] as a consequence of the occurrence of Eligible Force
Majeure, a Relevant Change in Law or a refusal to exercise under Clause
27 (as the case may be), or is terminated by the Secretary of State
pursuant to Clause 42.5 [Schedule 12 Termination] following the inability
of the Parties to reach a solution in accordance with Clause 42.5.1, prior
to the date of issue of the Commencement Certificate, then subject to the
provisions of Clause 44.4 [Exclusions and Deductions from
Compensation] the Secretary of State shall pay to the DBFO Co an
amount by way of compensation, such amount (as determined from the
Termination Accounts) being equal to the Pre-Commencement Costs
incurred by the DBFO Co.
44.2.2
If the DBFO Co terminates this Agreement pursuant to Clause 41
[Termination by the DBFO Co] as a consequence of the occurrence of a
DBFO Co Termination Event prior to the date of issue of the
Commencement Certificate, the Secretary of State shall pay to the DBFO
Co, in addition to the amount payable pursuant to Clause 44.2.1, a sum
equal to interest on such amount at a rate per annum equivalent to the
Interest Rate plus 2 per cent per annum from the relevant date or dates of
expenditure by the DBFO Co to the date of termination of this Agreement.
44.2A Delayed Termination
44.2A.1 If a termination on the grounds set out in Clause 44.2.1 or 44.2.2 takes
effect after the date of issue of the Commencement Certificate as a
consequence of a DBFO Co Termination Event occurring prior to the date
of issue of the Commencement Certificate of which the DBFO Co was not
and could not reasonably have been expected to have been aware in the
period prior to the date of issue of the Commencement Certificate, such
DBFO Co Termination Event shall be deemed to have occurred after the
date of issue of the Commencement Certificate and Clause 44.3 shall
apply.
44.2A.2 If a termination on the grounds set out in Clause 44.2.1 or 44.2.2 takes
effect after the date of issue of the Commencement Certificate as a
consequence of a DBFO Co Termination Event occurring prior to the date
of issue of the Commencement Certificate of which the DBFO Co
becomes aware in the period prior to the date of issue of the
Commencement Certificate then, provided that the DBFO Co serves its
notice to terminate pursuant to Clause 41.2.1 promptly upon becoming so
aware and in any event serves such notice to terminate prior to the date of
issue of the Commencement Certificate, upon service of such notice to
terminate by the DBFO Co the issue of the Commencement Certificate
shall be deemed to have been postponed until 5 Working Days after the
earlier of the remedy by the Secretary of State of the DBFO Co
Termination Event or the expiry of the period of notice specified in Clause
41.2.1.
44.3 Post-Commencement Termination
44.3.1
If:
44.3.1.1 the DBFO Co terminates this Agreement pursuant to Clause 41
[Termination by the DBFO Co] as a consequence of the
occurrence of a DBFO Co Termination Event:
44.3.1.1.1
after the date of issue of the Commencement
Certificate; or
44.3.1.1.2
prior to the date of issue of the Commencement
Certificate where the DBFO Co was not (and
could not reasonably have been expected to
have been) aware of such DBFO Co
Termination Event prior to the date of issue of
the Commencement Certificate; or
44.3.1.2 this Agreement is terminated by either Party pursuant to
Clause 42.2.1, Clause 42.3.1 or Clause 42.4.1 as a
consequence of the occurrence of Eligible Force Majeure, a
Relevant Change in Law or a refusal to exercise under Clause
27 (as the case may be), or is terminated by the Secretary of
State pursuant to Clause 42.5 [Schedule 12 Termination]
following the inability of the Parties to reach a solution in
accordance with Clause 42.5.1:
44.3.1.2.1
after the date of issue of the Commencement
Certificate; or
44.3.1.2.2
(in the case of a termination pursuant to Clause
42.3.1 or Clause 42.4.2) prior to the date of
issue of the Commencement Certificate where
the DBFO Co was not (and could not
reasonably have been expected to have been)
aware of such Eligible Force Majeure or
Relevant Change in Law prior to the date of
issue of the Commencement Certificate,
then subject to the provisions of Clause 44.4 [Exclusions and Deductions
from Compensation] the Secretary of State shall pay to the DBFO Co an
amount by way of compensation, such amount (as determined from the
Termination Accounts) being equal to the aggregate of the amounts set
out in Clause 44.3.2.
44.3.2
The aggregate referred to in Clause 44.3.1 is the aggregate of:
44.3.2.1 all outstanding amounts in respect of principal, interest up to
the date of termination of this Agreement, fees, commissions,
costs and expenses and prepayment charges and other
breakage costs (including Hedging Termination Amounts paid
or to be paid by the DBFO Co) owing by the DBFO Co to the
Funders under the Funding Agreements at the date of
termination of this Agreement or which arise from such
termination; and
44.3.2.2 all other liabilities and obligations of the DBFO Co to third
parties (including employees) arising out of or in connection
with the Project which are in existence at the date of
termination or arise as a result of or in connection with such
termination, but excluding any sums payable under or in
respect of the Funding Agreements.
44.4 Exclusions and Deductions from Compensation
44.4.1
There shall be excluded from any amount payable pursuant to Clause
44.2.1 [Pre Commencement Termination] or Clause 44.3 [Post
Commencement Termination]:
44.4.1.1 any liability of the DBFO Co in respect of subscription monies
paid by or any other obligations owed to holders of the
Ordinary Shares in respect of such Ordinary Shares and any
liability of the DBFO Co in respect of any moneys advanced
or other financial accommodation made available to the
DBFO Co by any Associated Company of the DBFO Co;
44.4.1.2 any sums received in respect of the Project from the Funders,
or otherwise derived from the Project, and subsequently
applied for purposes other than the Project, such other
purposes not to include the application of sums by way of the
return of principal or capital or the payment of interest,
dividends or distributions to Funders or otherwise pursuant to
the Funding Agreements and being, in the case of such
principal and capital, in reduction of amounts owing to
Funders thereunder;
44.4.1.3 any costs, expenses, liabilities and obligations owing by the
DBFO Co to the Funders to the extent that they arise as a
result of or in connection with:
44.4.1.3.1
a Qualifying Refinancing in respect of which
the prior written consent of the Secretary of
State was not obtained in accordance with
Schedule 25 [Refinancing]; or
44.4.1.3.2
any amendment, modification or variation of
the terms of the Funding Agreements other
than:
44.4.1.3.2.1 a Qualifying Refinancing in
respect of which the prior
written consent of the
Secretary of State was
obtained in accordance with
Schedule 25 [Refinancing];
or
44.4.1.3.2.2
any such amendment,
modification or variation
(other than a Qualifying
Refinancing), which has been
submitted to the Review
Procedure pursuant to
Clause 2.3.2 and in respect
of which (i) there has been
no objection under the
Review Procedure; and (ii)
(other than in the case of an
Unapproved Rescue
Refinancing) the DBFO Co
has complied with its
obligations under paragraphs
2.2, 2.6 and 2.7 of Schedule
25 [Refinancing] to the
extent applicable; or
44.4.1.3.2.3
any such amendment,
modification or variation
(other than a Qualifying
Refinancing or an
Unapproved Rescue
Refinancing) (i) which is not
required to be submitted to
the Review Procedure
pursuant to Clause 2.3.2 and
(ii) in respect of which the
DBFO Co has complied with
its obligations under
paragraphs 2.2, 2.6 and 2.7
of Schedule 25 [Refinancing]
to the extent applicable; or
44.4.1.3.2.4
any such amendment,
modification, or variation
that constitutes or gives rise
to an Unapproved Rescue
Refinancing;
44.4.1.4 all liabilities and obligations arising out of agreements or
arrangements entered into by the DBFO Co prior to such
termination (other than under the Project Documents or under
any amendment, modification or variation which has been
submitted to the Review Procedure pursuant to Clause 2.3.2
and in respect of which there has been no objection under the
Review Procedure), to the extent that such agreements or
arrangements were not entered into in the ordinary course of
business and on commercial arm's length terms;
44.4.1.5 all liabilities and obligations arising out of agreements or
arrangements entered into by the DBFO Co on or following
such termination and any agreements or arrangements entered
into at whatever time with any professional advisers or
consultants of the DBFO Co, the Funders or any Contracting
Associate:
44.4.1.5.1
regarding any claim or potential claim against
the Secretary of State arising from or in
connection with such termination; or
44.4.1.5.2
in respect of the payment of any amounts due
as a consequence of the termination of the
engagement of any such adviser or consultant
which are not directly attributable to work
done or services performed or costs
reasonably incurred by such adviser or
consultant as a consequence of the
termination of this Agreement;
44.4.1.6 any sum payable or liability in respect of any loss of profit for
work not executed, loss of income or indirect or consequential
loss (provided that this Clause 44.4.1.6 shall not operate so as
to exclude any amount properly due and payable by the
DBFO Co to the Operator under the Operation and
Maintenance Contract to compensate the Operator for its
Unrecovered Fixed Investment Costs save to the extent that
the amount of the Unrecovered Fixed Investment Costs
exceeds an amount equal to the Operator Fees (as defined in
the Operation and Maintenance Contract) which would have
been payable in respect of the three month period commencing
on the date on which the Operation and Maintenance Contract
is terminated but for such termination;
44.4.1.7 subject to Clause 44.4.1A, all liabilities and obligations of the
DBFO Co arising as a result of a breach of a contract relating
to the Project except:
44.4.1.7.1
any breach of contract arising as a direct result
of termination of this Agreement which could
not be avoided by the DBFO Co taking
reasonable measures; or
44.4.1.7.2
to the extent that (i) such liability or obligation
is one to which Clause 44.3.2.2 applies and
would have been discharged by a policy of
insurance of the DBFO Co referred to in
paragraphs 1.3, 1.4, 1.7, 2.3, 2.4 and 2.7 of
Part 1 of Schedule 10 [Insurances] but for the
risk arising from such breach of contract
becoming and continuing to be Uninsurable
(as defined in Clause 20.7) and (ii) this
Agreement has been terminated in accordance
with Clause 20.7.4 by reason of such risk
becoming Uninsurable;
44.4.1.8 without prejudice to Clauses 44.9, any liability of the DBFO
Co in respect of taxation (excluding (but without prejudice to
the other provisions of this Clause 44.4.1) any liability under
Clause 13.2 of the Credit Agreement);
44.4.1.9 subject to Clause 44.4.1A, the amount of any obligation or
liability incurred or arising under any of the Funding
Agreements as a result of:
44.4.1.9.1
any breach of any undertaking, warranty or
representation under the terms of any of the
Funding Agreements;
44.4.1.9.2
the occurrence of any event of default
(however described) under any of the Funding
Agreements;
44.4.1.9.3
any failure to satisfy any condition under the
terms of any of the Funding Agreements;
44.4.1.9.4
the cancellation, suspension or revocation by
the DBFO Co of a request by it for the
advance to it of funds or for the issue of any
guarantee, letter of credit or the Performance
Guarantee,
(except to the extent that any of the events referred to in
Clauses 44.4.1.9.1 to 44.4.1.9.4 (inclusive) arises as a result
of termination of this Agreement or arises as a result of any
breach by the Secretary of State of his obligations under this
Agreement);
44.4.1.10 any amount payable under any of the Funding Agreements in
respect of:
44.4.1.10.1
any demand under the Performance Guarantee;
or
44.4.1.10.2
any liability owing, or any amount paid, to the
Secretary of State under the Direct Agreement or
any Step-In Undertaking or Step-In Indemnity
(each as defined in the Direct Agreement) other
than, in the case of termination of this Agreement
by the DBFO Co pursuant to Clause 41
[Termination by the DBFO Co] or termination of
this Agreement by either Party pursuant to Clause
42.3 [Termination on Relevant Change in Law]
only, any such liability owing or amount paid to
the Secretary of State to the extent that:
44.4.1.10.2.1 it relates to sums notified by the
Secretary of State under clauses
4.4.1, 4.4.1A or 5.1 of the Direct
Agreement, notified by the
Security Trustee under clause
4.4.2 of the Direct Agreement or
notified by the Step-In Obligor
under clause 5.1 of the Direct
Agreement; and
44.4.1.10.2.2 it does not exceed in aggregate an
amount equal to the Maximum
Rescue Refinancing
Compensation Amount
applicable on the relevant Step-
In Date;
44.4.1.11 any liability of the DBFO Co, under or in respect of any
contract relating to the Project, to pay any amount by way of
reimbursement of, or indemnification in respect of, costs and
expenses incurred by any other party to any such contract if
and to the extent that:
44.4.1.11.1
such costs and expenses were not properly
incurred; or
44.4.1.11.2
such costs and expenses were properly
incurred but exceed a reasonable amount;
44.4.1.12 any liability of the DBFO Co for interest on overdue amounts
under clause 10.5 (Interest on overdue amounts) of the Credit
Agreement to the extent that the amount of such interest
exceeds the amount of interest that would have been
chargeable under clause 10.1 (Calculation of interest) of the
Credit Agreement in respect of that overdue amount if that
overdue amount constituted a Loan (as defined in the Credit
Agreement) but not excluding any liability of the DBFO Co
under clause 10.5 (Interest on overdue amounts) of the Credit
Agreement arising as a result of a breach by the Secretary of
State of any of his obligations under this Agreement; and
44.4.1.13
any liability of the DBFO Co under the Funding Agreements
arising other than in connection with the financing of the
Project.
44.4.1A Clauses 44.4.1.7 and 44.4.1.9 shall not in any circumstances have the
effect or be construed as having the effect of excluding or otherwise
entitling the Secretary of State to exclude from any amount payable by the
Secretary of State pursuant to Clause 44.2.1 [Pre-Commencement
Termination] or Clause 44.3 [Post-Commencement Termination]:
44.4.1A.1 any of the principal sums (including accelerated principal)
owing to the Funders under the Funding Agreements at the
date of termination or which arise from such termination and
interest thereon (but excluding default interest which becomes
payable to the Funders under the Funding Agreements other
than any default interest arising as a result of the termination
of this Agreement or any breach by the Secretary of State of
his obligations under this Agreement); and
44.4.1A.2 any fees, commissions, costs and expenses and prepayment
charges and other breakage costs referred to in Clause
44.3.2.1 to the extent that they do not arise as a consequence
of a breach of contract relating to the Project, except any
breach of contract arising as a direct result of termination of
this Agreement which could not be avoided by the DBFO Co
taking reasonable measures.
44.4.2
The Secretary of State shall be entitled to deduct from any amount payable
pursuant to Clause 44.2.1 or Clause 44.3 [Post-Commencement
Termination]:
44.4.2.1 Hedging Termination Amounts paid or to be paid to the DBFO
Co under the Hedging Agreements or (if the relevant Hedging
Agreement has not been terminated on or prior to the date on
which any payment is or is to be made by the Secretary of
State to the DBFO Co pursuant to Clause 44.2.1 or Clause
44.3 [Post-Commencement Termination]) Hedging
Termination Amounts which would have been paid or payable
to the DBFO Co under such Hedging Agreement had such
Hedging Agreement been terminated on such date;
44.4.2.2 the amount of any cash (whether or not in Sterling) or
guarantee or the value realised by the Funders (or which could
have been realised by the Funders acting diligently (but not in
contravention of their duty at law) in the enforcement of their
rights under the Funding Agreements) of any other security
deposited, placed or made available by or on behalf of the
DBFO Co, Holdco, any Sponsor or any Associated Company
with, to, or for the benefit of the Funders (together ''Security
Sums'') to secure obligations owed to any of the Funders
under any of the Funding Agreements where and to the extent
that, had any of such Security Sums been received prior to the
date of the termination which gives rise to the obligation to
make a payment under Clause 44.2.1 or Clause 44.3 [Post-
Commencement Termination], any of the Funders would have
been entitled (other than by reason of such termination) to
apply such Security Sums upon receipt in or towards payment
or discharge of any of the amounts, liabilities and other
matters referred to in Clause 44.2.1 or Clause 44.3 [Post-
Commencement Termination];
44.4.2.3
an amount equal to the proceeds of any insurances in respect of
the Project received by the DBFO Co, any Contracting
Associate or any Funder at any time prior to the date on which
any payment is made by the Secretary of State to the DBFO
Co pursuant to Clause 44.2.1 or Clause 44.3 [Post-
Commencement Termination] and which proceeds in any such
case are or are to be applied in or towards payment or
discharge of:
44.4.2.3.1
the Pre-Commencement Costs;
44.4.2.3.2
any of the amounts, liabilities and other
matters referred to in Clause 44.3.1; or
44.4.2.3.3
any of the other liabilities and obligations of
the DBFO Co referred to in Clause 44.3.2.
The DBFO Co shall pay to the Secretary of State, or procure
the payment to the Secretary of State of, any such proceeds of
insurance received by the DBFO Co, any Contracting
Associate or any Funder after the date on which any payment
is made by the Secretary of State pursuant to Clause 44.2.1 or
Clause 44.3 [Post-Commencement Termination] except to the
extent that any proceeds of insurance are payable in respect of
any liability or obligation not taken into account in computing
the amount of such compensation payable; and
44.4.2.4
where, following an Unapproved Rescue Refinancing, any such
amount is payable other than as a result of the termination by
DBFO Co of this Agreement pursuant to Clause 41
[Termination by the DBFO Co], an amount equal to the
aggregate of:
44.4.2.4.1
the amount of all Distributions made by the
DBFO Co at any time between the date of the
first Unapproved Rescue Refinancing and the
date of termination of this Agreement; and
44.4.2.4.2
the amount standing to the credit of the
Distributions Account (as defined in the
Accounts Mandate) as at the date of
termination of this Agreement,
up to a maximum amount equal to the Distributions Cap
Amount. The DBFO Co shall pay to the Secretary of State, or
procure the payment to the Secretary of State of, an amount
equal to all Distributions made or to be made by the DBFO
Co after the date on which any payment is made by the
Secretary of State pursuant to Clause 44.2.1 or Clause 44.3
[Post-Commencement Termination] up to a maximum amount
equal to the Distributions Cap Amount less the amount of any
deduction the Secretary of State has made pursuant to this
Clause 44.4.2.4.
44.5 Additional Compensation
44.5.1
If Clause 44.3 [Post-Commencement Termination] shall apply as a
consequence of the termination of this Agreement pursuant to Clause 41
[Termination by the DBFO Co], Clause 42.3 [Termination on Relevant
Change in Law] or Clause 42.5.1 [Schedule 12 Termination] in the
circumstances referred to in Clause 42.5.2.2 the Secretary of State shall,
in addition to any amounts payable pursuant to Clause 44.3 [Post-
Commencement Termination], pay to the DBFO Co as at the date of
termination of this Agreement a sum which shall be the aggregate of:
44.5.1.1 an amount per Ordinary Share calculated in accordance with
Clause 44.5.2 or Clause 44.5.5 as applicable; and
44.5.1.2 an amount in respect of the outstanding Subordinated
Shareholder Debt which shall be the fair market value of such
outstanding Subordinated Shareholder Debt (determined on the
basis of and in accordance with the procedure set out in Clause
44.5.3).
44.5.1A The amount payable by the Secretary of State pursuant to Clause 44.5.1
shall be calculated:
44.5.1A.1 in the case of a DBFO Co Termination Event referred to in any
of Clauses 41.1.1, 41.1.2, 41.1.4 and 41.1.5, as at the
Working Day immediately preceding the date upon which
such DBFO Co Termination Event occurs;
44.5.1A.2 in the case of a DBFO Co Termination Event referred to in
Clauses 41.1.3 and 41.1.6, as at the Working Day
immediately preceding the date upon which the DBFO Co
gives notice terminating this Agreement;
44.5.1A.3 in the case of the event referred to in Clause 42.3 [Termination
on Relevant Change in Law], as at the Working Day
immediately preceding the date on which the Relevant Change
in Law is enacted or, if earlier, such other date as is agreed
between the Secretary of State and the DBFO Co;
44.5.1A.4 in the case of any event referred to in Clause 42.5.2.2, as at the
Working Day immediately preceding the date upon which the
Secretary of State gives notice terminating this Agreement in
accordance with Clause 42.5.1.
44.5.2
If, as at the date of termination of this Agreement, the Ordinary Shares
have not been admitted to the Official List of the UK Listing Authority
and/or admitted to trading on the London Stock Exchange, the amount
payable per Ordinary Share under Clause 44.5.1 shall be the fair market
value of such Ordinary Share (determined on the basis and in accordance
with the procedure set out in Clause 44.5.3), less the Residual Value (if
any) of such Ordinary Share.
44.5.3
For the purposes of calculating the fair market value of the outstanding
Subordinated Shareholder Debt pursuant to Clause 44.5.1.2 and/or the fair
market value of the Ordinary Shares pursuant to Clause 44.5.2, the
provisions of this Clause 44.5.3 shall apply. The fair market value shall be
calculated on the basis:
44.5.3.1 of fair market value as between a willing vendor and a willing
purchaser and on the basis that such willing purchaser would
be given all the information in the possession of the DBFO Co
and of the DBFO Co's shareholders relating to the Project and
its prospects; and
44.5.3.2 that the event leading to termination had not occurred and the
DBFO Co was a going concern and accordingly would not
have received or been entitled to receive any amount by way
of compensation under this Agreement.
Such value shall be as agreed between the Department's Nominee and the
DBFO Co's financial adviser for the time being or, if no agreement has
been reached within 60 days of such date of termination, by the Expert on
reference by either Party.
44.5.4
The DBFO Co shall ensure that it keeps, and shall procure that its
Associated Companies keep, up to date and shall make, and shall procure
that its Associated Companies make, available at all reasonable times to
the Department's Nominee and its or the Secretary of State's professional
advisers its or their books, records and other information as the
Department's Nominee or its or the Secretary of State's professional
advisers reasonably consider necessary for the preparation of the valuation
referred to in Clause 44.5.3.
The DBFO Co and its Associated
Companies and its professional advisers shall cooperate with the
Department's Nominee and its or the Secretary of State's professional
advisers with regard to the preparation of such valuation.
44.5.5
If as at the date of termination of this Agreement the Ordinary Shares have
been admitted to the Official List of the UK Listing Authority and have
been admitted to trading on the London Stock Exchange:
44.5.5.1 the amount payable per Ordinary Share under Clause 44.5.1.1
shall be the amount by which the average of the middle market
quotations of such Ordinary Share on the London Stock
Exchange (ascertained by reference to the London Stock
Exchange's Daily Official List) on the last dealing day for
each of the twelve months immediately preceding the relevant
Working Day referred to in Clause 44.5.1A exceeds the
average of such middle market quotations on each of the 60
Working Days immediately succeeding such relevant Working
Day, as determined by the Department's Nominee and the
DBFO Co's financial adviser for the time being or, if no
agreement has been reached within 60 days of such date of
termination, by the Expert on reference by either Party;
44.5.5.2 in determining the amount payable per Ordinary Share for the
purpose of Clause 44.5.5.1, there shall be such adjustment to
the middle market quotations of such Ordinary Share in each
of the twelve months referred to in such Clause 44.5.5.1 as
shall be fair and reasonable to take account of any
capitalization of profits or reserves by the DBFO Co, or
consolidation or sub-division in respect of the Ordinary
Shares, or any capital distribution (of any nature) or rights
issues made by the DBFO Co, in all such cases within such
twelve month period. Such adjustment shall be as agreed
between the Department's Nominee and the DBFO Co's
financial adviser or, if no agreement has been reached within
60 days of the date of termination of this Agreement, as
determined by the Expert on reference by either Party. The
provisions of Clause 44.5.4 shall apply mutatis mutandis in
relation hereto; and
44.5.5.3 if the Ordinary Shares cease to be traded or dealt in, or are
suspended from trading or dealing, on the London Stock
Exchange as a result of the event giving rise to termination of
this Agreement, the average of the middle market quotations
on each of the 60 Working Days succeeding the relevant
Working Day referred to in Clause 44.5.5.1 shall be taken as
zero. In such circumstances the amount payable per Ordinary
Share shall be reduced by an amount, if any, equal to the
Residual Value of such Ordinary Share.
44.5.6
The amount payable by the Secretary of State under Clause 44.5.1.1 shall
be reduced to the extent that the price or market value as the case may be
of such Ordinary Shares reflects payments, rights or privileges in respect
of such Ordinary Shares to which the Department's Nominee would have
been entitled to object on the grounds referred to in Clause 2.3.3.
44.5.7
If Clause 44.3 [Post-Commencement Termination] shall apply as a
consequence of the termination of this Agreement pursuant to Clause 42.4
[Termination under Clause 27] or Clause 42.5.1 [Schedule 12
Termination] in the circumstances referred to in Clause 42.5.2.1, the
Secretary of State shall, in addition to any amounts payable pursuant to
Clause 44.3 [Post-Commencement Termination], pay to the DBFO Co as
at the date of termination of this Agreement a sum which shall (save to the
extent included in any amount payable by the Secretary of State under
Clause 44.3.2.2) be the aggregate of:
44.5.7.1
the aggregate unredeemed par amount subscribed for
any Ordinary Shares of the DBFO Co; and
44.5.7.2
the amount, as shown in the Termination Accounts, of
any Subordinated Shareholder Debt excluding any of such
amount representing interest whether or not accrued and or
capitalised.
44.6 Adjustments to Compensation
If the calculation of amounts payable under any provision of this Clause 44
[Compensation on Termination] gives a negative amount, such amount shall be
aggregated with any amount payable under other provisions of this Clause 44
[Compensation on Termination], which shall be reduced accordingly, but in no
circumstances shall the calculation of compensation under this Clause 44
[Compensation on Termination] give rise to an obligation on the DBFO Co to make
payment to the Secretary of State (but without prejudice to any obligation of the
DBFO Co to make any payment to the Secretary of State pursuant to any other
provision of this Agreement).
44.7 Interest
44.7.1 The Secretary of State shall pay interest to the DBFO Co on any amount due
to the DBFO Co under this Clause 44 [Compensation on Termination] as a
consequence of termination of this Agreement pursuant to Clause 41
[Termination by the DBFO Co] or Clause 42.3 [Termination on Relevant
Change in Law] from the date of termination of this Agreement to the date of
payment at a rate per annum equal to the Interest Rate plus 2 per cent per
annum.
44.8 Satisfaction in Full
44.8.1 Without prejudice to Clause 44.9, any payment made in full pursuant to this
Clause 44 [Compensation on Termination] in respect of a termination of this
Agreement shall be in full satisfaction of the DBFO Co's claim (if any) in
respect of the circumstances leading to that termination and the DBFO Co
shall be excluded from all other rights and remedies in respect thereof.
44.8.2 For the avoidance of doubt, in the event of a termination of this Agreement as
a result of an Event of Default, the DBFO Co shall not be entitled to the
payment of any amount in respect of the value of the Works or the Project
Facilities or any other compensation or damages.
44.9 Gross-Up
If any amount of compensation payable by the Secretary of State under Clause 44 is
subject to tax in the United Kingdom, then the Secretary of State shall pay to the
DBFO Co such additional amount as will put the DBFO Co in the same after tax
position as it would have been had the payment not been subject to tax, taking account
of any relief, allowances deduction, setting off or credit in respect of tax (whether
available by choice or not) available to the DBFO Co to reduce the tax to which the
payment is subject.
PART VI
MISCELLANEOUS
45.
ASSIGNMENT, SUB-CONTRACTING AND CHANGE IN CONTROL
45.1 Binding on Successors and Assigns
This Agreement shall be binding on and shall enure to the benefit of the DBFO Co and
the Secretary of State and their respective successors and permitted assigns.
45.2 Assignment
45.2.1
Subject to Clause 45.2.2 and Clause 45.6, the DBFO Co shall not, and
shall procure that no Contracting Associate shall, in any such case without
the prior consent of the Secretary of State, assign, novate, transfer or
create or allow to subsist any Encumbrance, trust or interest in:
45.2.1.1 this Agreement, the Design Contract, the Operation and
Maintenance Contract, the Construction Contract, or any
other contract entered into by the DBFO Co in performing its
obligations under this Agreement; or
45.2.1.2 the Retention Account or any sums from time to time standing
to the credit thereof,
or any part thereof or any benefit or interest therein or thereunder.
45.2.2
The provisions of Clause 45.2.1 do not apply:
45.2.2.1 in relation to the assignment of the benefit of any of the
agreements referred to in Clause 45.2.1.1 by way of security
in accordance with the Funding Agreements, provided that in
the case of an assignment of the benefit of this Agreement or
any part thereof or any benefit or interest therein or thereunder
any assignee shall have entered into the Direct Agreement or
such other similar agreement in relation to the exercise of its
rights as the Secretary of State shall require; or
45.2.2.2 to the novation of this Agreement to a Proposed Substitute on
one occasion only in accordance with the provisions of the
Direct Agreement.
45.2.3
Without prejudice to Clauses 45.4.1, 45.4.2 and 45.4.3, the DBFO Co
shall procure that:
45.2.3.1 the Designer shall not be permitted to assign the Design
Contract or any part thereof or any benefit or interest therein
or thereunder; and
45.2.3.2 the Contractor shall not be permitted to assign the
Construction Contract or any part thereof or any benefit or
interest therein or thereunder,
without the DBFO Co having obtained the prior consent of the Secretary
of State.
45.2.4 Without prejudice to Clauses 45.4.1, 45.4.2 and 45.4.4, the DBFO Co shall
procure that the Operator shall not be permitted to assign the Operation
and Maintenance Contract or any part thereof or any benefit or interest
therein or thereunder without the DBFO Co having obtained the prior
consent of the Secretary of State.
45.3 Change in Control
45.3.1
Subject to Clause 45.3.7, there is a change in control of the DBFO Co for
the purposes of Clause 40.1.2 whenever:
45.3.1.1 any person has control of the DBFO Co who did not have
control of the DBFO Co when this Agreement was executed;
or
45.3.1.2 any person has control of Holdco who did not have control of
the Holdco when this Agreement was executed; or
45.3.1.3 any person ceases to have control of the DBFO Co or Holdco,
and in any such case (but subject to Clauses 45.3.2, 45.3.3 and 45.3.4) the
change in control shall have taken place without the prior consent of the
Secretary of State and other than in accordance with clause 6.5 of the
Direct Agreement.
45.3.2
Subject to Clauses 45.3.3 and 45.3.4, the Secretary of State may withhold
or delay his consent to a change in control in his absolute discretion.
45.3.3
The Secretary of State shall not unreasonably withhold or delay his consent
to a change in control in the following circumstances:
45.3.3.1 in the case of a reorganisation for bona fide fiscal purposes
where the ultimate control of the DBFO Co does not change;
45.3.3.2 in respect of a change in control proposed at any time after the
date of issue of the Completion Certificate;
45.3.3.3. where between (and including) the date of this Agreement and
the date of issue of the Completion Certificate the Sponsor
transfers up to an aggregate of one half of the issued share
capital of Holdco provided that following such transfer(s) the
Sponsor retains not less than one half of the issued share
capital of Holdco and Holdco retains the whole of the issued
share capital of the DBFO Co.
45.3.4
Subject to Clause 45.3.5, the Secretary of State may only withhold or delay
consent to a proposed change of control pursuant to the bona fide
enforcement of the Holdco Security Agreement following an Event of
Default if the Security Trustee has failed to demonstrate to the Secretary
of State's reasonable satisfaction:
45.3.4.1
the legal capacity, power and authority of the DBFO Co to
perform its obligations under this Agreement following such
change of control;
45.3.4.2
that the technical competence and financial standing of, and the
technical and financial resources available to, the DBFO Co
are sufficient to perform its obligations under this Agreement
after such change of control;
45.3.4.3
that:
(a)
any of the shares in the DBFO Co; or
(b)
any rights to control and/or influence the activities of
the DBFO Co,
are to be held or exercisable by entities which have been at all
times wholly independent of and unconnected with the DBFO
Co and any Associated Company of the DBFO Co or which
are Acceptable Associated Companies; and
45.3.4.4
(if the enforcement of the Holdco Security Agreement referred
to in this Clause 45.3.4 was carried out following the
occurrence of the Event of Default referred to in Clause
40.1.2) that any person to whom the shares in the DBFO Co
are proposed to be transferred, is wholly independent of and
unconnected with any person who acquired an interest in the
DBFO Co giving rise to that Event of Default.
45.3.5 If, at the time that the Secretary of State is asked to give his consent to a
proposed change of control in accordance with Clause 45.3.4:
45.3.5.1
the Performance Guarantee has been provided to the Secretary
of State pursuant to Clause 4.1; and/or
45.3.5.2
a performance guarantee has been provided to the Secretary of
State pursuant to Clause 19.7.13,
and in any such case such performance guarantee has not been discharged,
the Secretary of State may withhold or delay such consent to a proposed
change of control where either of such performance guarantees would
cease to be in full force and effect following such transfer or, if a
replacement guarantee is proposed, where:
(a)
the long term debt of any bank or other financial institution
proposed as the issuer of such replacement guarantee is rated
below Aa3, in the case of a credit rating by Moody's, or AA-,
in the case of a credit rating by S&P, or an equivalent long
term credit rating by such other credit rating agency as the
Secretary of State may approve; or
(b)
if the terms of any such replacement performance guarantee are
not substantially the same as the terms of the performance
guarantee being replaced by such replacement performance
guarantee, in the absolute discretion of the Secretary of State,
the Secretary of State does not approve of the terms of the
proposed performance guarantee.
45.3.6
Subsections (2) and (4) to (6) of Section 416 of the Income and
Corporation Taxes Act 1988 shall apply for the purpose of determining
whether, for the purposes of this Clause 45.3 [Change in Control], a
person has or had control of the DBFO Co or Holdco, with the following
modifications:
45.3.6.1 for the words ''the greater part'' wherever they occur in the said
subsection (2) there shall be substituted the words ''one third
or more''; and
45.3.6.2 in the said Subsection (6), for the word ''may'' there shall be
substituted the word ''shall'', the words from ''and such
attributions'' onwards shall be omitted and in the other
provisions of that subsection any reference to an associate of a
person shall be construed as including only a relative of his
(as defined by Section 417(4) of that Act), a partner of his
and a trustee of a settlement (as defined by Section 660G(1)
of that Act) of which he is a beneficiary.
45.3.7
A change in control of the Sponsor or any of its Holding Companies which
arises from any bona fide open market transactions in any shares or other
securities of the Sponsor or such Holding Company effected on a
recognised investment exchange (within the meaning given in section 285
of the Financial Services and Markets Act 2000) shall not constitute a
change in control for the purposes of Clause 40.1.2.
45.4 Sub-Contracting
45.4.1
Neither the engagement nor employment of the following persons shall be
terminated (and in the case of the Designer, the DBFO Co shall procure
that neither the engagement nor employment of the Designer by the
Contractor shall be terminated) without the written consent of the
Secretary of State to the appointment of any proposed substitute and the
terms of engagement or employment of the proposed substitute:
45.4.1.1 the Contractor;
45.4.1.2 the Designer;
45.4.1.3 any Checker;
45.4.1.4 the Operator;
45.4.1.5 the Archaeologist;
45.4.1.6 the Landscape Architect;
45.4.1.7 the Environmental Manager;
45.4.1.8 the Ecologist;
45.4.1.9 the Testing Contractor;
45.4.1.10 the TRACS Contractor;
45.4.1.11
the Surveyor;
45.4.1.12 the Monitoring System Contractor;
45.4.1.13 the Monitoring System Verification Contractor;
45.4.1.14 the Traffic Signal Installation Contractor;
45.4.1.15 the Traffic Signal Maintenance Contractor;
45.4.1.16 the Traffic Signal System Certifier;
45.4.1.17 the Traffic Signal System Designer; and
provided that a termination of any such engagement or employment in
accordance with its terms by the relevant counterparty that is not procured
or facilitated by the DBFO Co shall not be a breach of this provision.
45.4.1A Without prejudice to Clause 45.4.1, the DBFO Co shall procure that the
appointment of the Principal of the following persons (who, for the
purposes of this sub-clause are each referred to as a "Relevant Sub-
Contractor"):
45.4.1A.1 the Designer;
45.4.1A.2 the Checker;
45.4.1A.3 the Archaeologist;
45.4.1A.4 the Landscape Architect;
45.4.1A.5 the Ecologist;
45.4.1A.6 the Surveyor;
45.4.1A.7 the Traffic Signal System Certifier;
45.4.1A.8 the Traffic Signal System Designer;
shall not be terminated unless such Principal is replaced by a Principal
possessing the qualifications and experience that would be required of the
Principal of a replacement of the Relevant Sub-Contractor as such
qualifications and experience are prescribed in the definition of such
Relevant Sub-Contractor set out in Clause 1.1.
45.4.2
If any of the persons referred to in Clause 45.4.1 shall cease to be engaged
or employed at any time when the DBFO Co has outstanding obligations
under this Agreement with respect to such persons, the DBFO Co shall
forthwith appoint (or, in the case of the Designer, procure that the
Contractor appoints) a replacement, subject to the prior approval of the
Secretary of State (such approval not to be unreasonably withheld or
delayed) both as to the substitute to be appointed and the terms of
engagement or employment of the proposed substitute.
No such
replacement shall perform any of the Operations until the DBFO Co has
provided to the Secretary of State a waiver of liability in respect of the
Disclosed Data in a form satisfactory to him (acting reasonably).
45.4.3
Without prejudice to any obligation under Clause 23 [Management
Systems], the Works may be sub-contracted by the Contractor without the
consent of the Secretary of State or the Department's Nominee, subject
always to compliance with the Design and Certification Procedure.
45.4.4
Without prejudice to any obligation under Clause 23 [Management
Systems], the operation and maintenance of the Project Facilities may be
sub-contracted by the Operator without the consent of the Secretary of
State or the Department's Nominee, subject always to compliance with the
Design and Certification Procedure.
45.4.5
No additional sub-contractor engaged by the DBFO Co shall carry out any
Operation until:
45.4.5.1 the Secretary of State has approved the appointment (such
approval not to be unreasonably withheld or delayed) both as
to the person concerned and to the terms of engagement or
employment; and
45.4.5.2 the DBFO Co has provided to the Secretary of State a waiver
of liability in relation to the Disclosed Data in a form
satisfactory to him (acting reasonably).
45.5 Consents
Save as provided in Clauses 45.3.2, 45.4.1, 45.4.2 and 45.4.5.1, any consent to be
given by the Secretary of State under this Clause 45 [Assignment, Sub-Contracting
and Change in Control] shall be in his absolute discretion and upon such terms as he
may in his absolute discretion determine.
45.6 Encumbrances over Retention Account and SoS Insurance Account
The DBFO Co shall not be entitled and shall not grant any Encumbrance over or in
respect of the Retention Account or the SoS Insurance Account (together "the
Accounts") or any sums standing to the credit thereof from time to time other than in
favour of the Secretary of State, provided that the DBFO Co shall be entitled to grant a
security interest to the Funders in and to the Accounts on terms that at all times such
security:
45.6.1 is subject to and ranks at all times behind:
45.6.1.1 any Encumbrance in favour of the Secretary of State whether created
before or after any such security interest in favour of the Funders
over or in respect of any of the Accounts, and all sums from time to
time standing to the credit of such Account (including without
limitation any accrued interest); and
45.6.1.2 any and all other rights of the Secretary of State in and to the
Accounts, and all sums from time to time standing to the credit of
the Accounts and all accrued interest;
45.6.2 is subject to the provisions of this Agreement; and
45.6.3 shall not in any way interfere with, prejudice or otherwise affect any of the
rights and obligations of the Parties under this Agreement or in respect of the
Accounts,
and otherwise upon such terms as the Secretary of State shall approve in writing in
advance. The DBFO Co shall (if so required by the Secretary of State) execute such
documents and do such things as the Secretary of State may reasonably require to
effect to the ranking of any security interest contemplated by this Clause 45.6
[Encumbrances over Retention Account and SoS Insurance Account].
46.
NOTICES
46.1 Requirement for Writing
Wherever in this Agreement provision is made for the giving or issuing of any notice,
endorsement, consent, approval, certificate or determination by any person (a
''Notice''), unless otherwise specified such Notice shall be in writing and the words
''notify'', ''endorsed'', ''consent'', ''approval'', ''certify'' or ''determined'' shall be construed
accordingly.
46.3 Changes
Either Party may change its address for notice to another address in England and
Wales by prior notice to the other Party with a copy to the Department's Nominee.
The Department's Nominee may change its address for notice to another address in
England and Wales by prior notice to the Parties.
46.4 Receipt
Any Notice shall be deemed to have been received:
46.4.1
if sent by hand or recorded delivery post, when delivered;
46.4.2
if sent by facsimile, upon sending, subject to:
46.4.2.1 confirmation of uninterrupted transmission by a transmission
report; and
46.4.2.2 there having been no telephonic communication by the
recipient to the sender (any such telephonic communication to
be confirmed in writing) that the facsimile has not been
received in legible form:
46.4.2.2.1
within 3 hours after sending, if sent on a
Working Day and between the hours of 9.00
a.m. and 4.00 p.m.; or
46.4.2.2.2
by noon on the next following Working Day if
sent after 4.00 p.m. on a Working Day but
before 9.00 a.m. on the next following
Working Day,
provided that any Notice (other than a routine Notice) given
by fax shall be confirmed by letter sent by hand or post, but
without prejudice to the original fax Notice if received in
accordance with this Clause 46.4.2.
47.
CONSENTS AND APPROVALS
47.1
Review Procedure
47.1.1 Any proposed document (including without limitation any Design Data) or
proposed course of action on the part of the DBFO Co which, under the terms
of this Agreement, is required to be submitted to the Review Procedure shall be
dealt with in accordance with the provisions of Part 2 of Schedule 7 [Review
Procedure].
47.1.2
Without limitation to Clause 47.3 [Effect of Consents, Approvals and
Inspections], notwithstanding the application of the Review Procedure, the
DBFO Co shall not be entitled to recover from the Secretary of State any
Losses or Claims which may arise out of or in connection with any
inadequacy, error or failure of any matter which has been subject to the
Review Procedure and any comments made by the Department's Nominee in
the course thereof. The DBFO Co shall obtain from the Designer, Contractor,
Operator, Checker, Archaeologist, Landscape Architect, Environmental
Manager, Testing Contractor, TRACS Contractor, Monitoring System
Contractor, Monitoring System Verification Contractor, Traffic Signal
Installation Contractor, Traffic Signal Maintenance Contractor, Traffic Signal
System Certifier, Traffic Signal System Designer, Surveyor and Ecologist,
prior to any such party carrying out any part of the Operations, waivers of
liability in favour of the Secretary of State and the Department's Nominee in
respect of any such Losses and Claims. No comments or absence of comments
on any matter in the course of the Review Procedure shall relieve the DBFO
Co of any of its obligations under this agreement in connection with the
Operations.
47.2 Reasonableness
Unless otherwise specified, where any agreement, certificate, consent, permission,
expression of satisfaction or other approval or acceptance (an ''Approval'') is to be
given by the Secretary of State or any person on his behalf under the terms of this
Agreement, the same shall not be unreasonably withheld or delayed.
47.3 Effect of Consents, Approvals and Inspections
47.3.1
Neither the giving of any Approval, knowledge of the terms of any
agreement or document (including without limitation the Project
Documents), nor the review of any document or course of action pursuant
to the Review Procedure by or on behalf of the Secretary of State or the
Department's Nominee shall relieve the DBFO Co of any of its obligations
under this Agreement or of its duty to ensure the correctness, accuracy or
suitability of the matter or thing which is the subject of the Approval,
knowledge or review under the Review Procedure.
47.3.2
Without limitation to Clause 47.3.1, no examination or lack of examination
by the Department's Nominee of the DBFO Co's drawings, documents,
calculations, or details relating to the design, construction, completion,
commissioning, testing and maintenance of the Works or the operation,
maintenance or improvement of the Project Facilities or otherwise nor any
comment, rejection or Approval expressed by such person in regard
thereto, either with or without modifications, shall in any respect relieve or
absolve the DBFO Co from any obligations or liability under or in
connection with this Agreement whether in relation to accuracy, safety,
suitability, adequacy of performance or practicality of its design or
howsoever otherwise arising.
47.3.3
Without limitation to Clause 47.3.1, notwithstanding any inspection by the
Department's Nominee under this Agreement or the failure of the
Department's Nominee to make any inspection under this Agreement, the
DBFO Co's responsibility under this Agreement shall not be relieved or
absolved or otherwise modified.
47.3.4
Any Approval shall be final, subject to being opened up, reviewed or
revised:
47.3.4.1 if errors or further relevant facts are revealed after the
Approval has been given; or
47.3.4.2 in accordance with paragraph 6.3 of Schedule 15 [Disputes
Resolution Procedure].
47.3.5
Without prejudice to Clause 47.3.4, any endorsement, decision, opinion,
instruction, notice, statement of objection, finding, determination,
requirement or certificate of the Department's Nominee and any
determination of an Expert shall be final, subject to the exercise by either
Party of any rights of objection under this Agreement and to the terms of
the Disputes Resolution Procedure.
48.
TAXES
48.1 VAT
48.1.1
All amounts stated to be payable by either Party under this Agreement shall
be exclusive of any VAT properly chargeable thereon.
48.1.2
Each Party shall pay to the other Party any VAT properly chargeable to it
in respect of any supply made to it under this Agreement provided that it
shall first have received from the other Party a valid tax invoice in respect
of that supply which complies with the requirements of Part III of the
Value Added Tax Regulations 1995.
48.1.3
If either Party (in this Clause 48 [Taxes] the ''First Party'') shall consider
that any VAT which the other Party (in this Clause 48 [Taxes] the
''Second Party'') claims to be properly chargeable to the First Party in
connection with this Agreement is not in fact properly so chargeable, the
First Party shall be entitled to require the Second Party to obtain a ruling
from the Commissioners of Customs and Excise (or, if relevant, such other
body as is charged at the time with the collection and management of
VAT) (in this Clause 48 [Taxes] the ''Commissioners'') as to the VAT (if
any) properly so chargeable. The Second Party shall forthwith request the
Commissioners for such a ruling.
48.1.4
The following further provisions shall apply in respect of the application
for a ruling in accordance with Clause 48.1.3:
48.1.4.1 prior to submitting its request for such a ruling and any further
communication to the Commissioners in connection with the
obtaining of the ruling, the Second Party shall first obtain the
agreement of the First Party to the contents of such request
and any such further communication, such agreement not to
be unreasonably withheld or delayed;
48.1.4.2 the Second Party shall provide to the First Party copies of all
communications received from the Commissioners in
connection with the application for a ruling as soon as
practicable after receipt; and
48.1.4.3 the Second Party shall use all reasonable efforts (including
without limitation the provision of such additional information
as the Commissioners may require) to obtain such a ruling as
soon as reasonably practicable following the initial request.
48.1.5
If a ruling is required by the First Party under Clause 48.1.3, the First
Party shall not be obliged to pay the VAT so claimed by the Second Party
unless and until a ruling is received from the Commissioners which states
that a sum of VAT is properly so chargeable. In the event of the receipt of
a ruling which states that a sum of VAT (the ''VAT Sum'') is properly so
chargeable, then subject to Clause 48.1.6 and 48.1.7 and provided that the
First Party shall first have received a valid tax invoice which complies
with the requirements of Part III of the Value Added Tax Regulations
1995 and which states the VAT Sum to be the amount of VAT chargeable
to the First Party, the First Party shall pay the VAT Sum to the Second
Party together, if applicable, with interest thereon in accordance with
Clause 33.7.
48.1.6
In the event that the First Party disagrees with any ruling obtained pursuant
to Clause 48.1.3 by the Second Party from the Commissioners, then the
Second Party (provided that it is indemnified to its reasonable satisfaction
against all costs and expenses which it may incur in relation thereto) shall
take such action and give such information and assistance to the First
Party as the First Party may require to challenge such ruling or otherwise
to resist or avoid the imposition of VAT on the relevant supply.
48.1.7
The following further provisions shall apply in the event that the First
Party shall exercise its rights under Clause 48.1.6:
48.1.7.1 the action which the First Party shall be entitled to require the
Second Party to take shall include (without limitation)
contesting any assessment to VAT or other relevant
determination of the Commissioners before any VAT tribunal
or court of competent jurisdiction and appealing any judgment
or decision of any such tribunal or court;
48.1.7.2 in the event that the Second Party shall be required to pay to or
deposit with the Commissioners a sum equal to the VAT
assessed as a condition precedent to its pursuing any appeal,
the First Party shall, at its election, either pay such sum to the
Commissioners on behalf of the Second Party or on receipt of
proof in a form reasonably satisfactory to the First Party that
the Second Party has paid such sum to or deposited such sum
with the Commissioners the First Party shall pay such sum to
the Second Party;
48.1.7.3 save as specifically provided in Clause 48.1.7.2, the First
Party shall not be obliged to pay to the Second Party any sum
in respect of the VAT in dispute to the Second Party or in
respect of VAT on any further supplies made by the Second
Party to the First Party which are of the same type and raise
the same issues as the supplies which are the subject of the
relevant dispute unless and until the final outcome of the
relevant dispute is that it is either determined or agreed that
VAT is properly chargeable on the relevant supply or
supplies; and
48.1.7.4 the Second Party shall account to the First Party for any costs
awarded to the Second Party on any appeal, for any sum paid
to or deposited with the Commissioners in accordance with
Clause 48.1.7.2 which is repayable to the Second Party and
for any interest to which the Second Party is entitled in respect
of such sums.
48.2 Deductions from payments
Save as otherwise provided in this Agreement and save only as may be required by law
all sums payable by either Party to the other under this Agreement shall be paid free
and clear of all deductions or withholdings whatsoever in respect of taxation.
48.3 Construction Industry Tax Deduction Scheme
48.3.1
In this Clause 48.3 [Construction Industry Tax Deduction Scheme]:
48.3.1.1 ''the Act'' means the Income and Corporation Taxes Act 1988;
48.3.1.2 ''the Regulations'' means the Income Tax (Sub-Contractors in
the Construction Industry) Regulations 1993 (SI 1993/743);
48.3.1.3 ''contractor'' means a person who is a contractor for the
purposes of the Act and the Regulations;
48.3.1.4 ''evidence'' means such evidence as is required by the
Regulations to be produced to a contractor for the verification
of a sub-contractor's tax certificate or registration card;
48.3.1.5 ''statutory deduction'' means the deduction referred to in
Section 559(4) of the Act or such other deduction as may be
in force at the relevant time;
48.3.1.6 ''sub-contractor'' means a person who is a sub-contractor for
the purposes of the Act and the Regulations;
48.3.1.7 ''tax certificate'' is a CIS 5 or CIS 6 certificate issuable under
Section 561 of the Act; and
48.3.1.8 "registration card" is a registration card CIS 4 issuable under
the Regulations.
48.3.2
The provisions of this Clause 48.3 [Construction Industry Tax Deduction
Scheme] shall apply throughout the term of this Agreement save for any
period during such term in respect of which the DBFO Co has received
written confirmation from the Inland Revenue in a form which is
reasonably satisfactory to the Secretary of State that this Agreement is not
a contract relating to the construction operations to which the provisions
of Chapter IV or Part XIII of the Act apply.
48.3.3
Not later than 21 days before the first payment under this Agreement is due
to be made to the DBFO Co or after this Clause 48.3 [Construction
Industry Tax Deduction Scheme] applies for the first time and on each
occasion when this Clause 48.3 [Construction Industry Tax Deduction
Scheme] applies following a period when it has not so applied the
DBFO Co shall either:
48.3.3.1 provide the Secretary of State with evidence of a tax certificate
entitling the DBFO Co to be paid without the statutory
deduction; or
48.3.3.2 provide the Secretary of State with evidence of a registration
card entitling the DBFO Co to be paid but with the statutory
deduction.
48.3.4
If the Secretary of State is not satisfied with the validity of the evidence
submitted in accordance with Clause 48.3.3, he shall within 14 days of the
DBFO Co submitting such evidence notify the DBFO Co in writing that he
intends either to make the statutory deduction from payments due under
this Agreement to the DBFO Co or to defer payment and give his reasons
for that decision.
48.3.5
Where Clause 48.3.3.2 applies, the DBFO Co shall immediately inform the
Secretary of State if it obtains a tax certificate, and thereupon
Clause 48.3.3.1 shall apply.
48.3.6
If the period for which the tax certificate has been issued to the DBFO Co
expires before the final payment is made to the DBFO Co under this
Agreement and provided that this Clause 48.3 [Construction Industry Tax
Deduction Scheme] applies at that time, the DBFO Co shall not later than
28 days before the date of expiry either:
48.3.6.1 provide the Secretary of State with evidence that the DBFO Co
from the said date of expiry is entitled to be paid for a further
period without the statutory deduction, in which case the
provisions of Clause 48.3.4 shall apply if the Secretary of
State is not satisfied with the evidence; or
48.3.6.2 provide the Secretary of State with evidence of a registration
card entitling the DBFO Co to be paid but with the statutory
deduction after the said date of expiry.
48.3.7
The DBFO Co shall immediately inform the Secretary of State in writing if
its current tax certificate or registration card is cancelled and give the date
of such cancellation.
48.3.8
The Secretary of State shall, as a ''contractor'' in accordance with the
Regulations, send promptly to the Inland Revenue any voucher which, in
compliance with the obligations of the DBFO Co as a ''sub-contractor''
under the Regulations, the DBFO Co gives to the Secretary of State.
48.3.9
The Secretary of State shall be entitled to make a deduction at the rate
specified in Section 559(4) of the Act or at such other rate as may be in
force from time to time from the whole of any payment to DBFO Co (and
not just that part of such payment which does not represent the direct cost
to the DBFO Co or any other person of materials used or to be used in
carrying out the construction operations to which the relevant payment
relates) unless prior to making such payment the Secretary of State shall
have received written confirmation from the Inland Revenue in a form
which is reasonably satisfactory to the Secretary of State directing the
Secretary of State to make the deduction against only a specified amount
or proportion of any such payment to the DBFO Co.
48.3.10
Where any error or omission has occurred in calculating or making the
statutory deduction then:
48.3.10.1 in the case of an over-deduction, the Secretary of State shall
correct that error by payment to the DBFO Co of the sum
over-deducted; and
48.3.10.2 in the case of an under-deduction, the DBFO Co shall correct
that error or omission by payment to the Secretary of State of
the sum which should have been but was not deducted.
48.3.11
The DBFO Co shall, at the request of the Secretary of State, produce to the
Secretary of State the original of any current tax certificate which it holds
and shall permit the Secretary of State to make a copy of such tax
certificate and/or to record such details in respect of such tax certificate as
the Secretary of State may consider appropriate.
48.3.12
If compliance with this Clause 48.3 [Construction Industry Tax Deduction
Scheme] involves the Secretary of State or the DBFO Co in not complying
with any other of the terms of this Agreement, then the provisions of this
Clause 48.3 [Construction Industry Tax Deduction Scheme] shall prevail.
48.3.13
Any Dispute arising out of the application of this Clause 48.3
[Construction Industry Tax Deduction Scheme] shall be resolved in
accordance with the Disputes Resolution Procedure.
49.
INTELLECTUAL PROPERTY
49.1 Design and Other Data
The DBFO Co shall make available to the Secretary of State, without charge, in paper
based or machine readable form as required by the Secretary of State:
49.1.1
all materials, documents and data of any nature (including without
limitation all Design Data) acquired or brought into existence in any
manner whatsoever by the DBFO Co (and/or any of the DBFO Co's
agents, employees, contractors or sub-contractors of any tier) for the
purposes of the design or construction of the Works, the operation,
maintenance or improvement of the Project Facilities or the conduct of the
other Operations and which might reasonably be required by the Secretary
of State whether during or after the Contract Period for the purposes of
exercising his rights or carrying out his duties under this Agreement or
carrying out any other functions; and
49.1.2
all other such materials, documents and data acquired or brought into
existence by third parties as may reasonably be required for the purposes
referred to in Clause 49.1.1.
49.2 Licences
49.2.1
The DBFO Co:
49.2.1.1 hereby grants to the Secretary of State a perpetual,
transferable, non-exclusive, royalty-free licence (carrying the
right to grant sub-licences) to use for any purpose (whether
during or after the Contract Period) relating to the design,
construction, completion, commissioning or testing of the
Works, the operation, maintenance or improvement of the
Project Facilities, or the conduct of any other Operations or
the carrying out by the Secretary of State of any functions in
respect of the Project Facilities, all and any Intellectual
Property which is or becomes vested in the DBFO Co (and/or
any of the DBFO Co's agents, employees, contractors or sub-
contractors of any tier) and to make any alterations,
adaptations or additions to the Design Data and the Traffic
Data which is or becomes vested in the DBFO Co; and
49.2.1.2
where any Intellectual Property is vested in any other third
party, shall procure the grant of a like licence with effect
(subject to Clause 49.2.3) from the date hereof (having
immediate effect from the grant thereof) to the Secretary of
State for any purpose (whether during or after the Contract
Period) relating to the design, construction, completion,
commissioning or testing of the Works, the operation,
maintenance or improvement of the Project Facilities
(including without limitation the carrying out of any
Additional Works), the conduct of any other Operations or the
carrying out by the Secretary of State of any functions in
respect of the Project Facilities.
49.2.2
The Secretary of State hereby grants to the DBFO Co a non-transferable,
non-exclusive, royalty-free licence (carrying the right to grant non-
transferable, non-exclusive royalty free sub-licences to the Contractor, the
Designer, the Checker, the Operator, the Archaeologist, the Landscape
Architect, the Environmental Manager, the Ecologist, the Testing
Contractor, the TRACS Contractor, the Surveyor, the Monitoring System
Contractor, the Monitoring System Verification Contractor, the Traffic
Signal Installation Contractor, the Traffic Signal Maintenance Contractor,
the Traffic Signal System Certifier and the Traffic Signal System Designer
only as necessary to enable that person to comply with its obligations
under any relevant Project Document to which such person is party) to use
(during the Contract Period only) all and any Intellectual Property which
is or becomes vested in the Secretary of State for any purpose relating to
the design, construction, completion, commissioning or testing of the
Works, the operation, maintenance or improvement of the Project
Facilities or the conduct of any other Operations.
49.2.3
With respect to Intellectual Property arising during the Contract Period, the
licence granted pursuant to Clause 49.2.1 or Clause 49.2.2 shall take
effect immediately upon the coming into existence of such Intellectual
Property.
49.3 Access to Data
49.3.1
To the extent that any of the data, materials and documents referred to in
Clause 49 [Intellectual Property] including, without limitation, all Design
Data and Traffic Data are generated by or maintained on a computer or
other equipment or otherwise in any machine readable format, the DBFO
Co shall procure for the benefit of the Secretary of State at no charge the
grant of a licence or sub-licence for and supply of any relevant software or
database to enable the Secretary of State or any person authorised by him
to access and otherwise use such data (including, without limitation, online
access and use, as applicable) for the purposes set out in this Agreement
or whether during or after the termination of this Agreement as otherwise
permitted under this Agreement or following its termination, for the
purposes of the design, construction, completion, commissioning or testing
of the Works, the operation, maintenance or improvement of the Project
Facilities or the carrying out by or on behalf of the Secretary of State of
any function.
49.3.2
Within 28 days after the execution of this Agreement the DBFO Co shall
submit to the Department's Nominee in accordance with the Review
Procedure its proposals for backing-up and storage in safe custody of the
data, materials and documents referred to in Clause 49.1 [Design and
Other Data] and the Department's Nominee shall only be entitled to object
and require alterations or additions if the same shall not accord with Good
Industry Practice. The DBFO Co shall and shall cause the Contractor, the
Designer, the Operator and any other contractor or sub-contractor of the
DBFO Co to comply with the procedures in respect of which there has
been no objection under the Review Procedure. The DBFO Co may vary
its procedures for such back up and storage subject to submitting in
accordance with the Review Procedure its proposals for change to the
Department's Nominee who may only object on the basis set out above.
49.4 Further Assurances
The DBFO Co and the Secretary of State each undertakes at the request of the other to
execute all documents and do all acts which may be necessary to bring into effect or
confirm the terms of any licence contained or referred to in Clause 49.2 [Licences].
49.5 Traffic Data
49.5.1
The Secretary of State shall be entitled without further consent from the
DBFO Co:
49.5.1.1 to use the Traffic Data for the purposes of exercising his rights
or carrying out his duties under this Agreement or carrying
out any other function; and
49.5.1.2 to incorporate the Traffic Data in any traffic or other statistics
prepared by or on behalf of the Secretary of State and to
publish such statistics or the Traffic Data either generally or
to a limited category of persons or otherwise to exploit such
statistics or the Traffic Data and whether or not in return for
any fee.
49.5.2
The DBFO Co shall not be entitled without prior written consent from the
Secretary of State (which consent he may withhold in his absolute
discretion) to use the Traffic Data except for the purposes of exercising its
rights or carrying out its duties under this Agreement.
49.6 Termination
This Clause 49 [Intellectual Property] shall survive the termination of this Agreement
irrespective of the reason for termination.
50.
CONFIDENTIALITY
50.1 Confidential Information
Each Party agrees, for itself and its respective directors, officers, employees, servants
and agents, to keep confidential and not to disclose to any person (save as hereinafter
provided) any of the terms of this Agreement or any information contained in the
Confidential Schedules or any confidential or proprietary information provided to or
arising or acquired by it pursuant to the terms or performance of this Agreement
(including without limitation any such documents or information supplied in the course
of proceedings under the Disputes Resolution Procedure) (together the ''Confidential
Information'').
50.2 Exceptions
Notwithstanding Clause 50.1 [Confidential Information] and subject to Clause 50.7
[Classified Information], a Party shall be entitled to disclose the whole or any part of
the Confidential Information:
50.2.1
to its directors, officers, employees, servants, sub-contractors, agents, or
professional advisers to the extent necessary to enable it to perform (or to
cause to be performed) or to enforce any of its rights or obligations under
this Agreement; or
50.2.2
when required to do so by law or by or pursuant to the rules or any order
having the force of law of any court, association or agency of competent
jurisdiction or any governmental agency; or
50.2.3
in the case of the DBFO Co, to any bank or financial institution from
whom it is seeking or obtaining finance; or
50.2.4
to the extent that the Confidential Information has, except as a result of
breach of confidentiality, become publicly available or generally known to
the public at the time of such disclosure; or
50.2.5
to the extent that the Confidential Information is already lawfully in the
possession of the recipient or lawfully known to him prior to such
disclosure; or
50.2.6
to the extent that it has acquired the Confidential Information from a third
party who is not in breach of any obligation as to confidentiality to the
other Party; or
50.2.7
to the extent permitted by Clause 24.8.2 [Parliamentary Questions and
Issues], Clause 49.2 [Licences] and Clause 49.5 [Traffic Data]; or
50.2.8
in the case of the Secretary of State:
50.2.8.1 to the extent required for the purpose of the design,
construction, completion, commissioning and testing of the
Works or the operation, maintenance or improvement of the
Project Facilities in the event of termination of this
Agreement;
50.2.8.2 (without limitation to Clause 50.2.2) in relation to the outcome
of the procurement process for the Project as may be required
to be published in the Official Journal of the European Union
or elsewhere;
50.2.8.3 to any other department, office or agency of the Crown
(including for the avoidance of doubt the National Audit
Office) where required for parliamentary, governmental,
statutory or judicial purposes;
50.2.8.4 in the case of the terms of this Agreement contained in the
Confidential Schedules, after the expiry of seven years from
the date of this Agreement; or
50.2.8.5 to the extent required in order to procure any Additional
Works,
and, in the cases of Clauses 50.2.1 and 50.2.3 above, upon obtaining from such person
or entity to whom the disclosure is to be made an undertaking of strict confidentiality
in relation to the Confidential Information in question and provided that Clauses 50.2.2
to 50.2.7 shall not apply in respect of any police report STATS 19 (or any replacement
or substitute for such report).
50.3 Return of Confidential Information
On the Termination Date each Party shall return to the other such Confidential
Information within its possession or control as may belong to the other Party, save that
this Clause 50.3 [Return of Confidential Information] shall not apply to:
50.3.1
Confidential Information belonging to the DBFO Co necessary for the
design, construction, completion, commissioning and testing of the Works
or the operation, maintenance or improvement of the Project Facilities,
which Confidential Information may be so used or applied in the design,
construction, completion, commissioning and testing of the Works or the
operation, maintenance or improvement of the Project Facilities; or
50.3.2
Traffic Data.
50.4 Continuation of Confidentiality Obligations
The obligations of the Parties under this Clause 50 [Confidentiality] shall, subject to
Clause 50.2 [Exceptions] and Clause 50.7 [Classified Information], continue for a
period of 5 years following the Termination Date notwithstanding such termination.
50.5 Publicity Regarding Disputes
Neither the DBFO Co nor the Secretary of State shall, without the prior written
authority of the other, publish alone or in conjunction with any other person any
articles or other material relating to any Dispute arising under this Agreement nor
impart any information regarding any such Dispute except to its professional advisers
under obligations of confidentiality, except and to the extent that such publication shall
arise out of any statutory or regulatory obligation applicable to the DBFO Co or any
obligation under any Law applicable to the Secretary of State.
50.6 Remedies
Without prejudice to any other rights and remedies that the other Party would have,
each of the Parties agrees that damages would not be an adequate remedy for any
breach of this Clause 50 [Confidentiality] and that the other Party shall be entitled to
the remedies of injunction, specific performance and/or other equitable relief for any
threatened or actual breach of this Clause 50 [Confidentiality].
50.7 Classified Information
50.7.1 The Secretary of State may notify the DBFO Co that any specified information or
category of information that he gives to the DBFO Co, or which it obtains through its
performance of its obligations under this Agreement, is to be designated as Classified
Information. The limitations on duration contained in Clause 50.4 [Continuation of
Confidentiality Obligations] shall not apply in relation to the DBFO Co's obligations in
relation to Classified Information.
50.7.2 The DBFO Co shall hold Classified Information in accordance with such guidelines
(the "Classified Information Guidelines") as the Secretary of State may issue from time
to time. The Classified Information Guidelines may specify, inter alia:
50.7.2.1 which employees of the DBFO Co are to have access to Classified
Information;
50.7.2.2 limitations on reproducing Classified Information;
50.7.2.3 where and how any Classified Information is to be stored;
50.7.2.4 when Classified Information is to be returned to the Secretary of State;
50.7.2.5 any designated sub-categories of Classified Information, and any special
procedures to be adhered to in respect of any such sub-category.
50.7.3 Change Procedure
If either the DBFO Co or the Secretary of State believes that an Eligible Change has
occurred as a result of the implementation of the requirements of a Classified
Information Notice or as a result of the withdrawal or modification by the Secretary of
State of the requirements of a Classified Information Notice, either Party may give a
notice pursuant to paragraph 1.1 of Annex 5 to Part 1 of Schedule 12 [Classified
Information] and the General Change Procedure shall apply subject to the provisions of
Annex 5 to Part 1 of Schedule 12 [Classified Information].
51.
AGENCY
51.1 No Delegation
For the avoidance of doubt, no provision of this Agreement shall be construed as a
delegation by the Secretary of State of any of his statutory authority to the DBFO Co
save as specifically provided by Clause 28.4 [Contracting Out of Functions] and
Clause 29.3 [Contracting Out of Functions].
51.2 No Agency, Crown Immunity
Save as otherwise provided in this Agreement, the DBFO Co shall not be or be deemed
to be an agent of the Secretary of State and the DBFO Co shall not hold itself out as
having authority or power to bind the Secretary of State in any way. For the
avoidance of doubt the DBFO Co shall not have the benefit of any Crown immunity
and, unless otherwise agreed by the Secretary of State, shall apply for and obtain all
consents, licences and permissions which the DBFO Co would otherwise be obliged to
obtain under any Law on the basis that the DBFO Co does not have the benefit of any
Crown immunity.
51.3 DBFO Co Responsibility
As between the Parties, the DBFO Co shall be responsible for the acts, defaults,
omissions and neglect of the Designer, Checker, Contractor, Operator, Archaeologist,
Landscape Architect, Environmental Manager, Ecologist, Testing Contractor, TRACS
Contractor, Monitoring System Contractor, Monitoring System Verification
Contractor, Traffic Signal Installation Contractor, Traffic Signal Maintenance
Contractor, Traffic Signal System Certifier, Traffic Signal System Designer, Surveyor
and Ecologist and any other contractor or sub-contractor of the DBFO Co of any tier
and the agents, employees or workmen of any of them as fully as if they were the acts,
defaults, omissions or neglect of the DBFO Co, its agents, employees or workmen.
51.4 DBFO Co Knowledge
Without limitation to its actual knowledge, the DBFO Co shall, for all purposes of this
Agreement, be deemed to have such knowledge in respect of the Project and the
Operations as is held (or as ought reasonably to be held) by the Designer, Checker,
Contractor, Operator, Archaeologist, Landscape Architect, Environmental Manager,
Ecologist, Testing Contractor, DBFO Co Quality Director, TRACS Contractor,
Monitoring System Contractor, Monitoring System Verification Contractor and
Surveyor, in the relevant circumstances.
52.
DISPUTES RESOLUTION PROCEDURE
52.1 Except as expressly provided in any other provision of this Agreement, all Disputes
shall be resolved in accordance with the provisions set out in Schedule 15 [Disputes
Resolution Procedure].
52.2 No Loss Waiver
The Secretary of State shall not be entitled to reduce or avoid to any extent any amount
payable by it to DBFO Co under this Agreement (including by way of indemnity) in
reliance solely on the fact that any entitlement of the Contractor or the Operator in
respect of the same act or omission of the Secretary of State or other event is
conditional on the establishment of the liability of the Secretary of State under this
Agreement in respect of that act, omission or other event.
53.
WHOLE AGREEMENT
This Agreement (including the Schedules), the Custody Agreement, the Direct
Agreement and a side letter of even date from the Secretary of State to the DBFO Co
concerning the approval of the Checker by Network Rail constitute the whole
agreement and understanding of the Parties as to the subject matter hereof and there
are no prior or contemporaneous agreements between the Parties with respect thereto.
54.
WAIVER
Failure by the Secretary of State at any time to enforce any provision of this
Agreement or to require performance by the DBFO Co of any of the provisions of this
Agreement shall not be construed as a waiver of any such provision and shall not affect
the validity of this Agreement or any part thereof or the right of the Secretary of State
to enforce any provision in accordance with its terms.
55.
AMENDMENTS
No amendment to this Agreement shall be binding unless in writing and signed by the
duly authorised representatives of the Secretary of State and the DBFO Co.
56.
CONFLICTS OF INTEREST
The DBFO Co shall ensure that no conflict of interest arises between its performance
of the Operations and any other matter in which it may be interested whether directly
or indirectly.
57.
GOVERNING LAW AND JURISDICTION
57.1 Law
This Agreement shall be governed by and construed in all respects in accordance with
English law.
57.2 Jurisdiction
Subject to the provisions of Clause 52 [Disputes Resolution Procedure], the Parties
agree to submit to the non-exclusive jurisdiction of the English Courts as regards any
claim or matter arising in relation to this Agreement.
58.
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Agreement has no right under the Contracts (Rights
of Third Parties) Act 1999 to enforce any term of this Agreement but this does not
affect any right or remedy of a third party which exists or is available apart from that
Act.
59.
COMPETITION ACT
59.1 In the event that either Party reasonably considers that this Agreement infringes or may
infringe the Chapter I Prohibition contained in the Competition Act 1998 and/or Article
81(1) of the EC Treaty, then each Party will co-operate with the other using its
respective reasonable endeavours and each bearing its own costs and expenses to
persuade and satisfy the Relevant Regulatory Authority of the legality and
enforceability of this Agreement in its original form and for such purposes shall jointly
undertake all such filings, notifications, discussions, negotiations or settlements with
the Relevant Regulatory Authority as the Parties agree shall be necessary or desirable.
In particular, without prejudice to the generality of the foregoing, the Parties shall
consider together whether a joint application shall be made to the Relevant Regulatory
Authority for negative clearance or exemption under Regulation 17/62 in relation to
Article 81 of the EC Treaty or under Sections 12 to 14 of the Competition Act 1998 in
respect of the Chapter 1 prohibition. The parties shall jointly make any necessary
written or oral submissions to the Relevant Regulatory Authority unless requested by
the Relevant Regulatory Authority to respond individually.
59.2 If any provision of this Agreement is deemed unenforceable by operation of Article
81(1) of the EC Treaty or Chapter I of the Competition Act 1998 then the Parties shall
in good faith consult with each other to agree an alternative provision which achieves a
result as similar as possible to the result which would have been achieved by the
provision deemed unenforceable.
60.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which when
executed shall constitute an original, but all of which when taken together shall
constitute one and the same Agreement.
61.
RECYCLED PAPER
All written work in connection with this Agreement shall (where appropriate and unless
otherwise specified) be produced on recycled paper containing at least 80% post
consumer waste and used on both sides of the paper.
