EXHIBIT 10.19
DATED MARCH 1996
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
DBFO CONTRACT
THE SECRETARY OF STATE FOR TRANSPORT
AND
YORKSHIRE LINK LIMITED
INDEX OF SCHEDULES
SCHEDULE 1 FINANCIAL MATTERS
Part 1 Form of Performance Guarantee S1/1
Part 2 Milestone Event S1/5
Part 3 Base Case S1/6
Part 4 Form of Direct Agreement S1/7
SCHEDULE 2 PROGRAMME S2/1
SCHEDULE 3 LAND
Part 1 Existing Road S3/1
Part 2 New Road S3/2
Part 3 Connecting Roads S3/5
Part 4 Defects in Existing Road S3/6
Part 4A Shared Facilities S3/7
Part 5 Form of Lease S3/8
Part 6 Scheme Orders S3/26
Part 7 Drawings S3/28
SCHEDULE 4 CONSTRUCTION AND HANDBACK REQUIREMENTS
Part 1 Core Construction Requirements S4/1
Part 2 Construction Requirements S4/3
Part 3 Design and Certification Procedure S4/653
Part 4 Handback Requirements S4/710
Part 5 Construction Finishing Works S4/716
Part 6 Noise Insulation Requirements S4/717
Part 7 Drawings S4/722
SCHEDULE 5 QUALITY ASSURANCE
Part 1 Principles for Quality Plans S5/1
Part 2 Quality Plans S5/13
SCHEDULE 6 OPERATION AND MAINTENANCE
Part 1 Core O&M Requirements S6/1
Part 2 O&M Requirements S6/3
Part 3 Drawings S6/112
SCHEDULE 7 REPRESENTATIVES
Part 1 Department's Agent S7/1
Part 2 Department's Representative S7/4
Part 3 Review Procedure S7/7
SCHEDULE 8 THIRD PARTIES
Part 1 Relevant Authorities S8/1
i
Part 2 Other Interested Parties S8/9
Part 3 Requirements of Relevant Authorities S8/12
Part 4 Requirements of Other Interested Parties S8/82
SCHEDULE 9 PAYMENTS
Part 1 Payments between Permit to Use Date and
Completion Certificate S9/1
Part 2 Traffic Payment S9/3
Part 3 Lane Closure Charge S9/16
Part 4 Safety Performance Payment S9/35
Part 5 Indexation S9/41
Part 6 Road Lengths S9/45
SCHEDULE 10 INSURANCE S10/1
SCHEDULE 11 DELAY AND FORCE MAJEURE
Part 1 Delay Events S11/1
Part 2 Force Majeure S11/3
SCHEDULE 12 CHANGE
Part 1 General Change Procedure S12/1
Part 2 Department's Works Change S12/17
Part 3 Department's Change in Specification S12/20
Part 4 Additional Works S12/23
Part 5 Compensation Events S12/25
Part 6 User Paid Tolls S12/28
SCHEDULE 13 ADDITIONAL WORKS
Part 1 Procedure for Additional Works S13/1
Part 2 Payment for Additional Works Services S13/4
Part 3 Subsequent Schemes S13/6
Part 4 Improvements S13/10
Part 5 Safety Improvements S13/11
SCHEDULE 14 RECORDS AND REPORTS
Part 1 Records S14/1
Part 2 Reports S14/5
SCHEDULE 15 DISPUTES RESOLUTION PROCEDURE S15/1
SCHEDULE 16 LIAISON PROCEDURES
Part 1 General Principles S16/1
Part 2 Operations, Emergencies and Traffic Management S16/2
SCHEDULE 17 COMMUNICATIONS REQUIREMENTS
Part 1 Core Communications Requirements S17/1
Part 2 Communications Requirements S17/8
ii
SCHEDULE 18 PENALTY POINTS S18/1
SCHEDULE 19 STATUTORY UNDERTAKERS
Part 1 Authorised Functions S19/1
Part 2 Services in Relation to the Secretary of State's Function S19/3
Part 3 Other Services S19/7
SCHEDULE 20 TRAFFIC SIGNS
Part 1 Locations S20/1
Part 2 Text S20/2
SCHEDULE 21 CONTRACTED OUT FUNCTIONS OF THE SECRETARY OF STATE S21/1
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
THIS DBFO CONTRACT (this "Agreement") is made the 26th day of March 1996
BETWEEN:
(1) THE SECRETARY OF STATE FOR TRANSPORT of 76 Marsham Street, London SW1P
4DR (the "Secretary of State"); and
(2) YORKSHIRE LINK LIMITED, a company organised and existing under the laws
of England, registered under number 2999303 and having its registered
office at 1 Berkeley Street, London W1A 1BY (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, construction, financing and
operation of approximately 30km of motorway and trunk road between
Junction 28 (Tingley) of the M62 motorway and Bramham Crossroads on the
A1 Trunk Road, together with ancillary highway, landscaping and
drainage works as authorised by the Secretary of State in 1993, the
construction of a maintenance depot at Bramham and the maintenance of
the Project Facilities throughout the Contract Period.
(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 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.
NOW IT IS HEREBY AGREED as follows:
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
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:
"Abnormal Indivisible Load" means any vehicle 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).
"Accrued Relevant Payments" has the meaning given in Clause
36.3A.4.2.1.
"Additional Works" means any change, improvement or addition made or
proposed to be made to the design, layout or structure of the Existing
Road (other than any Upgraded Section) at any time or of the New Road
at any time after issue of the Completion Certificate (but excluding
any Subsequent Scheme and any Improvement).
"Additional Works Contract" has the meaning given in paragraph 3.1.4 of
Part 1 of Schedule 13.
"Additional Works Contractor" has the meaning given in paragraph 3.1.4
of Part 1 of Schedule 13.
"Additional Works Notice" has the meaning given in paragraph 1.1 of
Part 1 of Schedule 13.
"Additional Works Services" has the meaning given in paragraph 3.1 of
Part 1 of Schedule 13.
"Adjacent Areas" means the areas, shown or identified as such on the
date hereof on drawings entitled 'Land Areas' in Part 7 of Schedule 3,
which do not form part of the Site but upon which part of the
Operations are to be carried out; 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.
"Advance Works Contract" means an agreement dated 8th February 1996
made between the Secretary of State and the unincorporated joint
venture comprising Trafalgar House Construction Special Projects
Limited and Wimpey Construction Limited in respect of certain advance
site clearance works in relation to the Project.
"Affected Contract Year" means each Contract Year in respect of which
there is a Change in Costs, a Change in Traffic or a Change in Capital
Costs as a consequence of an Eligible Change.
"Aggregate Commuted Sum" has the meaning given in Clause 29.1.1.
"Aggregate Relevant Monthly Amount" has the meaning given in Clause
29.3.1.1.
"Alternative Proposal" has the meaning given in paragraph 1 of Section
B of Part 3 of Schedule 4.
"Amended Funding Agreement" has the meaning given in Clause 2.4.4.2.
"Annual Reconciliation Notice" has the meaning given in Clause 29.4.2.
"Annual Report" has the meaning given in paragraph 3 of Part 2 of
Schedule 14.
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"Appeal" has the meaning given in Clause 26A.4.2.2.
"Applicable Interest Rate" means:
(a) in respect of the Relevant Funding Liabilities arising in
respect of, or (in the case of a Funding Agreement which is a
Hedging Agreement) in relation to, the facility agreement
referred to in Clause 2.3.1.3.2:
(i) to the extent not guaranteed by 3i, per cent per
annum plus the Applicable Margin as defined in the
relevant Funding Agreement, and
(ii) to the extent guaranteed by 3i, per cent per annum
plus the Applicable Margin as defined in the relevant
Funding Agreement;
(b) in respect of Relevant Funding Liabilities arising in respect
of, or (in the case of a Funding Agreement which is a Hedging
Agreement) in relation to the facility agreement referred to
in Clause 2.3.1.3.3, per cent per annum plus the Applicable
Margin and Guarantee Fee Rate as defined in the relevant
Funding Agreement;
(c) in respect of Relevant Funding Liabilities arising in respect
of, or (in the case of a Funding Agreement which is a Hedging
Agreement) in relation to, the senior subordinated facility
agreement referred to in Clause 2.3.1.3.4, per cent per
annum plus the Applicable Margin as defined in the relevant
Funding Agreement;
(d) in respect of Relevant Funding Liabilities arising in respect
of, or (in the case of a Funding Agreement which is a Hedging
Agreement) in relation to, the facility agreement referred to
in Clause 2.3.1.3.5, per cent per annum plus the Applicable
Margin and Redemption Premium as defined in the relevant
Funding Agreement;
(e) in respect of Relevant Funding Liabilities arising in respect
of, or (in the case of a Funding Agreement which is a Hedging
Agreement) in relation to, the subordinated facility agreement
referred to in Clause 2.3.1.3.5, per cent per annum plus the
Applicable Margin and Guarantee Fee Rate as defined in the
relevant Funding Agreement;
(f) in respect of the (pound)12,000,000 15% subordinated loan
stock created by the Instrument referred to in Clause
2.3.1.3.18;
(g) in any other case, per cent per annum.
"Application" has the meaning given in Clause 26A.4.2.1.
"Approval" has the meaning given in Clause 43.2 [Reasonableness].
"Approved Funding Agreement" means a Funding Agreement which, in
accordance with Clauses 2.4.2 and 2.4.3, constitutes an "Approved
Funding Agreement" for the purposes of this Agreement, and shall
include any Immaterial Amendments and Waivers of such Funding Agreement
(whether or not such Immaterial Amendments and Waivers are approved by
the Secretary of State for the purposes of such Clauses).
"Archaeologist" means Peter Fasham of Babtie Group or such substitute
as may be appointed by the Contractor for the time being in accordance
with Clause 41.4.1.
"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 the Sponsors and the
Contractor and any company
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
which is a Subsidiary, a Holding Company or a company which is a
Subsidiary of a Holding Company of a Sponsor or the Contractor.
"Audit Team" has the meaning given in paragraph 2.1 of Section A of
Part 3 of Schedule 4.
"Band" means each of the bands of Traffic Payments referred to in Part
2 of Schedule 9.
"Base Case" means the output from the Financial Model on the date of
execution of this Agreement, a print out of the assumptions, cash flow,
profit and loss and balance sheet parts of which is set out in Part 3
of Schedule 1.
"Brief Annual Report" has the meaning given in paragraph 3.2 of Part 2
of Schedule 14.
"Census Limits of Accuracy" has the meaning given in Clause 28.4.1.
"Certificate" means any certificate to be issued pursuant to this
Agreement and in particular:
(a) "Advance Release Certificate" means a certificate to be issued
by the Department's Representative on behalf of the Secretary
of State pursuant to Clause 17.8.3.1 in the form set out in
Annex 1(22) to Part 3 of Schedule 4.
(b) "Alternative Proposal Certificate" means a certificate in the
form set out in Annex 1(12) to Part 3 of Schedule 4.
(c) "Certificate of Commencement" means the certificate to be
issued by or on behalf of the Secretary of State pursuant to
Clause 7.2 [Certificate of Commencement] in the form set out
in Annex 1(19) to Part 3 of Schedule 4.
(d) "Check Certificate" (Structures) means a certificate in the
form set out in Annex 1(4) to Part 3 of Schedule 4;
(e) "Communications Certificate" means a certificate in the form
set out in Annex 1(20) to Part 3 of Schedule 4;
(f) "Completion Certificate" means a certificate in the form set
out in Annex 1(16) to Part 3 of Schedule 4;
(g) "Construction Certificate" means a certificate in the form set
out in Annex 1(13) to Part 3 of Schedule 4;
(h) "DBFO Co's Substantial Completion Certificate" means a
certificate in the form set out in Annex 1(14) to Part 3 of
Schedule.4;
(i) "DBFO Co's Works Change Certificate" means a certificate in
the form set out in Annex 1(10) to Part 3 of Schedule 4;
(j) "Department's Works Change Certificate" means a certificate in
the form set out in Annex 1(11) to Part 3 of Schedule 4;
(k) "Design Certificate (General)" means a certificate in the form
set out in Annex 1(1) to Part 3 of Schedule 4;
(l) "Design Certificate (Geotechnical) means a certificate in the
form set out in Annex 1(2) to Part 3 of Schedule 4;
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(m) "Design Certificate (Structures)" means a certificate in the
form set out in Annex 1(3) to Part 3 of Schedule 4;
(n) "Handback Certificate" means a certificate in the form set out
in Annex 1(18) to Part 3 of Schedule 4;
(o) "Milestone Certification" means a certificate in the form set
out in Annex 1(21) to Part 3 of Schedule 4;
(p) the Permit to Use;
(q) "Programme Certificate" means a certificate in the form set
out in Annex 1(6) to Part 3 of Schedule 4;
(r) "Road Safety Audit Certificate" means a certificate in the
form set out in Annex 1(9) to Part 3 of Schedule 4;
(s) "Taking Over Certificate" means a certificate in the form set
out in Annex 1(17) to Part 3 of Schedule 4;
(t) "Temporary Works Check Certificate" means a certificate in the
form set out in Annex 1(5) to Part 3 of Schedule 4; and
(u) "Test Confirmation Certificate" means a certificate in the
form set out in Annex 1(7) to Part 3 of Schedule 4.
"Change Figure" has the meaning given in paragraph 4.1 of Part 1 of
Schedule 12.
"Change in Capital Costs" means any net increase in the DBFO Co's costs
of performing the Operations (other than (i) operation and maintenance
costs and other costs of a similar or recurring nature and (ii) Lane
Closure Charges) as a consequence of an Eligible Change or Eligible
Changes the subject of a notice under paragraph 2.1 of Part 1 of
Schedule 12. For the avoidance of doubt, this does not include any loss
of revenue and any increase in such costs shall be a positive figure.
"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 or Eligible Changes the subject of a
notice under paragraph 2.1 of Part 1 of Schedule 12. For the avoidance
of doubt, this includes Lane Closure Charges but does not include any
loss of revenue. The Change in 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) which is binding on the DBFO Co.
"Change in Revenues" means any increase or decrease in the DBFO
Payments (but excluding any Aggregate Commuted Sum) receivable by the
DBFO Co in respect of a Contract Year as a consequence of the Eligible
Change or Eligible Changes the subject of a notice under paragraph 2.1
of Part 1 of Schedule
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12. The Change in Revenues shall be calculated on the assumption that
all Traffic Payments in respect of a Contract Year are received on the
day which is the mid point of such Contract Year. For the avoidance of
doubt, any decrease in revenues shall be a positive figure and any
increase in revenues shall be a negative figure.
"Change in Traffic" means any net increase or decrease in the traffic
using the Project Road in a Contract Year as a consequence of the
Eligible Change or Eligible Changes the subject of a notice under
paragraph 2.1 of Part 1 of Schedule 12.
"Checker" means any person appointed in accordance with paragraph 39 of
Section A of Part 3 of Schedule 4 to check a Category III Structure or
such substitute as may be appointed by the DBFO Co for the time being
in accordance with Clause 41.4.1.
"Checking Team" has the meaning given in paragraph 2.3 of Section A of
Part 3 of Schedule 4.
"Claim" means any claim, demand, proceedings or liability.
"Commencement Date" means the date on which the Certificate of
Commencement is issued.
"Commissioners" has the meaning given in Clause 44.1.3.
"Communications Requirements" means the requirements set out or
identified in Part 2 of Schedule 17 [Communications Requirements] as
amended from time to time by any Works Change, Alternative Proposal or
Department's Change in Specification or in accordance with Clause 12.2
[O&M Requirements].
"Commuted Sum" has the meaning given in paragraph 6 of Part 1 of
Schedule 12.
"Compensation Event" means any of the following:
(a) an event within Clause 24.5.3 [Step-In Rights] (but only if it
is determined to be a Delay Event);
(b) a material breach by the Secretary of State of the provisions
of Clause 8.1 [Access for DBFO Co] (but only if such breach is
determined to be a Delay Event);
(c) failure by the Department's Agent to issue the Permit to Use,
the Completion Certificate or a Taking Over Certificate when
required to do so in accordance with Clause 11.1, 11.2 or 11.3
respectively;
(d) the disallowance by HM Customs & Excise of recovery of input
VAT incurred by the DBFO Co on expenditure attributable to the
Project on the grounds that the supplies made by the DBFO Co
in relation to the Project are exempt and not taxable for the
purposes of VAT;
(e) the occurrence of a Relevant Change in Law (but only if such
Relevant Change in Law does not give rise to a right of
termination in accordance with Clause 38.5).
"Confidential Information" has the meaning given in Clause 46.1
[Confidential Information].
"Connecting Roads" means the lengths of trunk road or motorway
described in Part 3 of Schedule 3 which provide access to the Project
Road and for which the Secretary of State is the highway authority.
"Construction Contract" means the contract titled "Agreement for the
Design and Construction of the M1-A1 Link Road (Lofthouse to Bramham)"
of even date herewith between the DBFO Co and the Contractor for the
design and construction of the Works.
"Construction Finishing Works" means the works more particularly set
out in Part 5 of Schedule 4.
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"Construction Period" means the period commencing on the Commencement
Date and ending on the Permit to Use Date.
"Construction Period LCCs" has the meaning given in paragraph 6 of Part
3 of Schedule 9.
"Construction Plant" means plant, materials and equipment used or to be
used by the Contractor in the construction of the Project Facilities
but does not include Plant.
"Construction Requirements" means:
(a) the standards, specifications and requirements for design and
construction set out or identified in Part 2 of Schedule 4;
and
(b) the Noise Insulation Requirements,
as amended from time to time by any Works Change, Alternative Proposal
or Department's Change in Specification.
"Contracting Associate" means the Designer, Contractor, and any other
Associated Company of the DBFO Co which performs any function in
connection with this Agreement or the Operations.
"Contract Period" means the period commencing on the Commencement Date
and expiring 30 years therefrom (subject to the provisions of Clauses
33.4.1 and 33.4.4 [Consequences of Force Majeure]) 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 1997 (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 the unincorporated joint venture comprising
Trafalgar House Construction Special Projects Limited and Balfour
Beatty Civil Engineering Limited or such substitute contractor as may
be appointed by the DBFO Co for the time being in accordance with
Clause 41.4.1.
"Contractor's Quality Plan" has the meaning given in Clause 21.1.3.3.
"Core Constriction Requirements" means the requirements set out or
identified or referred to in Part 1 of Schedule 4 [Core Construction
Requirements].
"Core Communications Requirements" means the requirements set out or
identified or referred to in Part 1 of Schedule 17 [Core Communications
Requirements].
"Core O&M Requirements" means the requirements set out or identified or
referred to in Part 1 of Schedule 6 [Core O&M Requirements].
"Court" means any court of competent jurisdiction.
"Credit Providers" has the meaning given to it in the Direct Agreement.
"Cumulative Threshold" means (pound)2,000,000 (in April 1995 prices).
"Custody Agreement" means the agreement so titled of even date herewith
between the DBFO Co, the Secretary of State and the National Computing
Centre Limited for the custody of the Financial Model.
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"Date for Completion" means 30th June 2000, subject to adjustment in
accordance with Clause 10.6 [Extension of Time].
"DBFO Co's Quality Plan" has the meaning given in Clause 21.1.3.1.
"DBFO Co's Quality Plan for O&M" has the meaning given in Clause
21.1.3.1.3.
"DBFO Co's Quality Plan for the Management of Construction" has the
meaning given in Clause 21.1.3.1.1.
"DBFO Co's Quality Plan for the Management of O&M" has the meaning
given in Clause 21.1.3.1.2.
"DBFO Co's Representative" means the person appointed by the DBFO Co
pursuant to Clause 20.2 (The DBFO Co's Representative] or such
substitute as may be appointed by the DBFO Co for the time being
pursuant to Clause 20.3 [Change of Representatives].
"DBFO Co's Systems" has the meaning given in Schedule 17.
"DBFO Co Termination Event" means any of the events set out in Clause
37.1 [DBFO Co Termination Events].
"DBFO Co Traffic Sign" has the meaning given in Clause 14.4.
"DBFO Co's Works Change" means a Works Change initiated by the DBFO Co
in accordance with Clause 9.4.
"DBFO Payment" has the meaning given in Clause 29.1.1 [DBFO Payments].
"Deemed Department's Change" means any Change in Law which requires:
(a) a variation in the design, quality or quantity of the Works
(including any addition, omission, substitution, alteration in
design and/or variation in the Construction Requirements or
the Communications Requirements); or
(b) a variation in the quality or quantity of the Operations
(other than as referred to in paragraph (a) above)
and which, if it were instructed as such, would constitute a
Department's Works Change or a Department's Change in Specification;
provided that there shall be excluded from the definition of a Deemed
Department's Change any such Change in Law (other than a Relevant
Change in Law) if, following such a Department's Works Change or
Department's Change in Specification, the Construction Requirements,
the Communications Requirements or the O&M Requirements (as the case
may be) would be materially less likely to achieve satisfaction of the
Core Construction Requirements (but excluding the Core Construction
Requirements set out in Annex 15 to Part 2 of Schedule 4), the Core
Communications Requirements (but excluding the Core Communications
Requirements set out in Sections A and B of Part 1 of Schedule 17) or
the Core O&M Requirements (as the case may be) than the Construction
Requirements, the Communications Requirements or the O&M Requirements
(as the case may be) prior to such Department's Works Change or
Department's Change in Specification.
"Deemed Department's Change Notice" has the meaning given in Clause
33A.2.1.
"Deemed Issue Period" has the meaning given in Clause 11.1.5.
"Default Period" has the meaning given in Clause 36.3A.4.2.1.
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"Defective Equipment" has the meaning given in Clause 28.7.1
[Correction of Defects].
"Delay Event" means any of the events specified in Part 1 of Schedule
11 [Delay Events].
"Delay Period" has the meaning given in Clause 10.6.6.
"Department's Agent" means Pell Frischmann Consultants Limited
(Wakefield) or such substitute as may be appointed by the Secretary of
State for the time being pursuant to Clause 20.3 [Change of
Representatives].
"Department's Change in Specification" means a variation in the quality
or quantity of the Operations (other than a Department's Works Change)
initiated by the Department's Representative in accordance with Part 3
of Schedule 12 [Department's Change in Specification] and may include
any addition, omission, substitution, alterations in design and/or
variations in the Technical Requirements.
"Department's Nominee" means, where referred to in the context of the
design, construction, completion, commissioning or testing of the Works
or any activities under this Agreement related thereto, the
Department's Agent and in all other circumstances the Department's
Representative.
"Department's Representative" means the Northern Network Management
Division of the Highways Agency or such substitute as may be appointed
by the Secretary of State for the time being pursuant to Clause 20.3
[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 or 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) Highway Construction Details, published by HMSO as Volume 3 of
the Manual of Contract Documents for Highway Works;
(e) Roads Circulars issued by the Department;
(f) the Trunk Roads Maintenance Manual.
"Department's Works Change" means a Works Change initiated by the
Department's Agent in accordance with Part 2 of Schedule 12
[Department's Works Change].
"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 for fundamental aspects of design;
(b) the use of technical specifications for materials or
workmanship other than those in the SHW for fundamental
aspects of construction;
(c) the use of a set of requirements (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;
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(d) the use of a standard set out in the DMRB in circumstances
where such standard would not normally be applicable, where
such usage is justified on economic or environmental grounds;
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 titled "Agreement for Design
Services" of even date herewith between the Contractor and the Designer
for the design of the Works.
"Design Data" means all calculations, designs, design or construction
information, standards, specifications, plans, drawings, graphs,
sketches, models and other materials, including all eye readable or
computer or other machine readable data, prepared or to be prepared by
or on behalf of the DBFO Co or the Secretary of State relating to the
design or construction of the Works or any Works Change or the
operation, maintenance or improvement of the Project Facilities.
"Designer" means Babtie Group Limited or such substitute as may be
appointed by the Contractor for the time being in accordance with
Clause 41.4.1.
"Designer's Quality Plan" has the meaning given in Clause 21.1.3.2.
"Designer's Quality Plan for Design" has the meaning given in Clause
21.1.3.2.1.
"Designer's Quality Plan for Examination of the Works" has the meaning
given in Clause 21.1.3.2.2.
"Design Manual for Roads and Bridges" or "DMRB" means the Design Manual
for Roads and Bridges, published by HMSO.
"Design Team" has the meaning given in paragraph 2.4 of Section A of
Part 3 of Schedule 4.
"Detailed Design" means the detailed design to be developed from the
preliminary design 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 (and shown on drawings numbered
40114/04/05/10 Revision A and 40114/04/05/13 Revision C in Part 7 of
Schedule 3) which is or is to be de-trunked in accordance with an order
made pursuant to Section 10(2)(b) of the Highways Act.
"Direct Agreement" means the agreement to be entered into between the
Secretary of State, the Intercreditor Agent (on behalf of the Credit
Providers) and the DBFO Co in the form set out in Part 4 of Schedule 1
and includes any New Direct Agreement (as defined in such agreement)
from time to time.
"Direction" has the meaning given in Clause 26A.4.2.4.
"Disclosed Data" has the meaning given in Clause 34.2.1.
"Discount Rate" means the nominal internal rate of return of the
Project before interest and tax as shown in the Base Case, which is
agreed to be per cent.
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"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 48 and set out in Schedule 15 [Disputes Resolution Procedure.].
"DTp" or "Department" or "DOT" or "MOT" means the Department of
Transport.
"East Leeds Radial Junction" means all infrastructure necessary to form
a junction in the vicinity of Pontefract Lane between the Project Road
and a road proposed to be built by Leeds City Council (the "East Leeds
Radial Road") including without limitation the slip roads associated
with such junction, but excluding (i) any modifications to the Project
Road resulting from the construction of the junction and (ii) any Works
included in the Construction Requirements contained in Schedule 4 of
this Agreement (including without limitation the Pontefract Lane West
overbridge).
"Eligible Change" means any of the following:
(a) a Department's Works Change;
(b) a Department's Change in Specification;
(c) any Additional Works which result in any change in the costs
of or revenues to the DBFO Co in the conduct of the
Operations;
(d) any Compensation Event;
(e) the imposition or removal of User Paid Tolls or any change in
User Paid Tolls within the scope of paragraph 6 of Part 6 of
Schedule 12 which results in any change in the costs of the
DBFO Co in the conduct of the Operations.
"Eligible Force Majeure" has the meaning given to it in paragraph 2 of
Part 2 of Schedule 11 [Force Majeure].
"Emergency" means any unforeseen event affecting the Project Facilities
whether directly or indirectly which causes or has the potential to
cause disruption to the free flow of traffic on the Project Road or a
threat to the safety of the public or which is an immediate or imminent
threat to the long term integrity of any part of the infrastructure of
the Project Facilities or to land adjacent to the Project Facilities or
likely to be affected by events on the Project Road.
"Encumbrance" means 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.
"Event of Default" means any of the events set out in Clause 36.1
[Events of Default].
"Excepted Off-Site Works" has the meaning given to it in Clause 11.2.7.
"Excepted Works" means all or any of:
(a) the Excepted Off-Site Works; and
(b) (provided that, at all times prior to the Date for Completion,
the DBFO Co shall have complied with its obligations under
Part 6 of Schedule 4 (and without prejudice to Clause
11.2.6.3)) any
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Traffic Noise Works which, in accordance the provisions of
Part 6 of Schedule 4, fall to be completed after the Date for
Completion.
"Existing Road" means the lengths of trunk road or motorway described
in Part 1 of Schedule 3 (and shown on drawings numbered C2/09/100/14
Revision B, C 1/09/100/01 Revision C C3/09/100/01 Revision B and
C3/09/100/02 Revision C contained in Part 7 of Schedule 3), including
without limitation:
(a) all carriageways, hard shoulders, slip roads, access roads,
side roads, bridges and other Structures whether over or under
such road (but excluding the bridges and other Structures (if
any) so specified in Part 1 of Schedule 3); 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, road markings, road traffic signs, road lighting,
communications installations, public toilets, embankments and cuttings,
but excluding any parts thereof which are excluded from this definition
from time to time in accordance with Clause 11.3.4.2.
"Expected Final Inspection Date" has the meaning given in Clause
11.1.1.1.
"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" has the meaning given in Clause 17.1 [Handback
Requirements].
"Final Inspection Commencement Date" has the meaning given in Clause
11.1.1.9.
"Financial Model" means the financial model created for the DBFO Co and
embodied in its financial model software (to be run in conjunction with
an IBM (or IBM compatible) personal computer with 24 megabytes or more
of operating memory) 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 Party" has the meaning given in Clause 44.1.3.
"Force Majeure" means any of those events referred to in Part 2 of
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 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, any transactions entered into after
the date of this Agreement pursuant to any of the Master Hedging
Agreements referred to in Clause 2.3.1.3.12 and any agreements or
instruments entered into by the DBFO Co to raise additional or
substitute finance or
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
financial facilities of any form or relating to the rescheduling of its
indebtedness or the re-financing of the Project, and "Funding
Agreement" shall be construed accordingly, provided that the facility
agreement referred to in Clause 2.3.1.3.4 shall only be treated as a
Funding Agreement for the purposes of Clause 40.3 to the extent that
amounts are owed under such agreement to a person other than any
Sponsor or any Associated Company of such Sponsor.
"General Change Procedure" means the procedure set out in Part 1 of
Schedule 12 [General Change Procedure].
"Good Industry Practice" means the exercise of that degree of skill,
diligence, prudence and foresight which would reasonably and ordinarily
be expected 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.
"Ground, Physical and Geophysical Investigations" means the
investigation of the conditions of the Site and Adjacent Areas,
including the surface and subsoil, 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.
"Handback Amount" has the meaning given in Clause 17.6.7. "Handback
Inspection" has the meaning given in Clause 17.6.1.
"Handback Requirements" means the requirements set out or identified or
referred to in paragraph I of Part 4 of Schedule 4 [Handback
Requirements].
"Hedging Agreement" means an agreement entered into by the DBFO Co for
the purposes of hedging the exposure of the DBFO Co to interest rate
fluctuations under any Funding Agreement.
"HGV" means any motor vehicle greater than 5.2 metres in length.
"Highways Act" means the Highways Act 1980.
"Highway Construction Details" or "HCD" means the Highway Construction
Details published by HMSO as Volume 3 of the Manual of Contract
Documents for Highway Works.
"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.
"Immaterial Amendments and Waivers" means an amendment or waiver of any
"of the terms of any Funding Agreement which does not in any way affect
or alter:
(a) the amount of any liability or indebtedness of, or the amount
of any loan or other financial accommodation made or to be
made available to, the DBFO Co under or pursuant to such
Funding Agreement or any other Funding Agreement;
(b) the currency of such Funding Agreement, the stated due date or
dates for any payment or repayment under such Funding
Agreement, the rate or rates of interest applicable under such
Funding Agreement, any fees, commissions or other charges
payable under such Funding
13
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
Agreement or any other amount or matter which would be taken
into account in calculating the Relevant Funding Liabilities.
"Impact Date" has the meaning given in paragraph 5.13 of Part 1 of
Schedule 12.
"Implementation Date" means the date for implementation of a
Department's Change in Specification, as agreed or determined in
accordance with either paragraph 3 or paragraph 4 of Part 3 of Schedule
12.
"Improvement" means any change, improvement or addition proposed to be
made by the DBFO Co to the design, layout or structure of the Existing
Road (other than any Upgraded Section) at any time or of the New Road
at any time after the issue of the Completion Certificate which can be
lawfully accomplished by the DBFO Co without obtaining specific line,
side road or compulsory purchase orders under the Highways Act.
"Index" has the meaning given in paragraph 1 of Part 5 of Schedule 9.
"Indicators" has the meaning given in paragraph 5.1 of Part 1 of
Schedule 12.
"Individual Threshold" means (pound)500,000 (in April 1995 prices).
"Initial Inspection" has the meaning given in Clause 17.2.1.
"Initial Design and Construction Value" has the meaning given in Clause
4.3.
"Inspection Area" has the meaning given in Clause 11.1.1.1.1.
"Inspection Schedule" has the meaning given in Clause 11.1.1.1.
"Insulation Works" has the meaning given to it in Part 6 of Schedule 4.
"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 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 Agent" means any bank, trustee or other financial
institution appointed by the Credit Providers to act in that capacity
and such substitute as may be appointed from time to time in accordance
with the Direct Agreement and notified to the Secretary of State in
writing.
"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
Statutory 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.
"Interest Rate" means a rate of interest per annum equivalent to the
average of the base lending rates announced by Barclays Bank PLC and
National Westminster Bank 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.
"Landfill Tax" means any amount payable by way of that tax announced by
the Chancellor of the Exchequer on 29th November 1994 and to be
introduced by legislation in the Finance Act 1996 which
14
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requires certain persons to account to HM Customs & Excise for tax in
respect of the disposal of material as waste.
"Lane Closure" has the meaning given in paragraph 1 of Part 3 of
Schedule 9.
"Lane Closure Charge" means the charge referred to in paragraph 3.1 of
Part 3 of Schedule 9 [Lane Closure Charge].
"Last Contract Year" has the meaning given in the definition of
"Contract Year".
"Latent Defect" has the meaning given in Clause 15.1 [Latent Defects].
"Law" means any applicable law, statute, proclamation, by-law,
directive, decision, regulation, rule, order, notice, rule of court or
delegated or subordinate legislation.
"Lease" means a lease in respect of the Maintenance Area in the form
set out in Part 5 of Schedule 3.
"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 (or the European
Parliament to the extent that it has legislative powers) which (without
further enactment) has legal effect within the United Kingdom,
including for the avoidance of doubt any such legislation, subordinate
legislation or legislative act which introduces or modifies any tax
(other than any Landfill Tax).
"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, as the case may be.
"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 entitled 'Land Areas'
contained in Part 7 of Schedule 3), including without limitation all
carriageways, hard shoulders, slip roads, access roads, side 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 lighting, communications
installations, embankments and cuttings.
"Local Facilities" means any De-Trunked Segment and any part of the
Off-Site Facilities (including without limitation any Local Authority
Road) which is intended, on completion, to be handed over to the
Secretary of State, a local authority or other third party for
operation and maintenance.
"Local Person" means any highway authority or other third party to whom
any Local Facilities or De-Trunked Segments are to be handed over in
accordance with Clause 11.3 [Local Facilities and De-Trunked Segments].
"Loss" means any loss, damage, costs or expenses.
"Maintenance Area" means the area identified as such on drawing
numbered 40114/04/05/16 Revision A contained in Part 7 of Schedule 3.
"Maintenance Depot" means that part of the Permanent Works relating to
the design, construction and completion of a maintenance depot located
on the Maintenance Area.
"Maintenance Works" means any works for the maintenance or repair of
the Existing Road or the Maintenance Depot or, after the issue of the
Completion Certificate, the New Road, but excluding any Routine
Maintenance.
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"Manual of Contract Documents for Highways Works" or "MCHW" means the
manual of contract documents for highways works published by HMSO.
"Measure" means, in respect of the traffic passing a Measurement Point
during a period, to count the number of vehicles comprising such
traffic and to determine the classification of each such vehicle in
accordance with the provisions of Clause 28.3.2 [Measuring Equipment],
and "Measurement" shall be construed accordingly.
"Measuring Equipment" has the meaning given in Clause 28.3.1 [Measuring
Equipment].
"Measurement Limits of Accuracy" has the meaning given in Clause
28.4.1.
"Measurement Point" means any point designated as such pursuant to
Clause 28.2 [Measurement Points].
"Milestone Event" has the meaning given in Part 2 of Schedule 1
[Milestone Event].
"Monthly Traffic Payment" has the meaning given in Clause 29.3.1.
"Monthly Report" has the meaning given in paragraph 2 of Part 2 of
Schedule 14.
"Net Cash Flow" means the sum of any Traffic Payments, any Safety
Performance Payments and any Aggregate Commuted Sums less any Lane
Closure Charges, operating and maintenance costs, capital expenditure
and taxes.
"Net Present Value" means the net present value of any stream of
cashflows calculated as at the stated reference date, determined by:
(a) discounting any such cash flows subsequent to the reference
date by the Discount Rate (with semi-annual rests), and
(b) inflating any such cash flows prior to such reference date by
the Discount Rate (with semi-annual rests).
"New Funding Agreement" has the meaning given in Clause 2.4.4.1.
"New Road" means the lengths of trunk road or motorway described in
Part 2 of Schedule 3 (and shown on drawings numbered C2/09/100/14
Revision B, C 1/09/100/01 Revision C, C3/09/100/01 Revision B and
C3/09/100/02 Revision C contained in Part 7 of Schedule 3) which are
constructed or modified or to be constructed or modified by the DBFO
Co, including without limitation:
(a) all carriageways, hard shoulders, slip roads, access roads,
side roads, bridges and other Structures whether over or under
such road (but excluding the bridges and Structures (if any)
so specified in Part 2 of Schedule 3); 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, road markings, road traffic signs, road lighting,
communications installations, embankments and cuttings.
"Noise Insulation Requirements" has the meaning given to it in Part 6
of Schedule 4.
"Notes for Guidance" means the Notes for Guidance on the Specification
for Highway Works, published by HMSO as Volume 2 of the Manual of
Contract Documents for Highway Works.
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"Notice" has the meaning given in Clause 42.1.
"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, as amended from time to time by any Department's Change in
Specification or in accordance with Clause 12.2 [O&M Requirements].
"Objection" has the meaning given in Clause 26A.4.2.6.
"Off-Site Facilities" means those parts of the Permanent Works located
on Adjacent Areas, including but not limited to carriageways, hard
shoulders, slip roads, access roads, side 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 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 11.3.4.2.
"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.
"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 design, construction, completion,
commissioning and testing of the Works, the conduct of any Additional
Works Services, the operation and maintenance of the Project Facilities
(including without limitation the performance of any Maintenance Works
and any Routine Maintenance), the performance of all other obligations
of the DBFO Co under this Agreement, the conduct of any other works or
operations of the DBFO Co (and/or any agents, employees, contractors or
subcontractors of any tier of the DBFO Co) on or in relation to the
Project Facilities, the Site or the Adjacent Areas and the performance
by the unincorporated joint venture comprising Trafalgar House
Construction Special Projects Limited and Wimpey Construction Limited
(and/or any of its agents, employees, contractors or sub-contractors of
any tier) of all or any of such unincorporated joint venture's
obligations under the Advance Works Contract.
"Original Financial Model" has the meaning given in paragraph 5.13 of
Part 1 of Schedule 12.
"Original Funding Agreements" mean the Funding Agreements of even date
herewith specified in Clause 2.3.1.3 (excluding any amendments or
supplements thereto and any agreements or instruments 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 re-financing of the Project but including any
novation or assignment (by way of transfer certificate or otherwise) of
any of the Funders' rights under such Funding Agreements).
"Ordinary Shares" means the 3,000,001 ordinary shares of (pound)1 each
in the issued share capital of the DBFO Co.
"Other Party" has the meaning given in paragraph 2.1 of Part 1 of
Schedule 12.
"Other Vehicles" means all motor vehicles other than HGVs.
"Penalty Point" has the meaning given in Clause 24.2 [Penalty Points].
"Penalty Points Commencement Notice" has the meaning given in Clause
24.1A.1.
"Performance Guarantee" means a guarantee in the form set out in Part 1
of Schedule 1.
"Permanent Works" means the works having a permanent function
(regardless of the length of the design life of such works) which are
to be designed, constructed and completed by the DBFO Co in accordance
with the Construction Requirements and the Communications Requirements.
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"Permit to Use" means a permit in the form set out in Annex 1(15) to
Part 3 of Schedule 4 to be issued by the Department's Agent prior to
the operation of the New Road (other than any Upgraded Section) in
accordance with Clause 11.1.2.
"Permitted Closure" has the meaning given in Clause 15.4.3.1.
"Permit to Use Date" means the date on which the Permit to Use is
issued or deemed to be issued in accordance with Clause 11.1.
"Permit to Use Standard" has the meaning given in Clause 11.1.1.1.
"Plant" means machinery, apparatus and the like intended to form or
forming part of the Permanent Works or the Existing Road.
"Programme" means the outline programme for the design and construction
of the Works appearing in Schedule 2 (as amended from time to time in
accordance with this Agreement).
"Project" means the design and construction of the Works, the
financing, operation and maintenance of the Project Facilities and the
conduct of any other Operations during the Contract Period.
"Project Documents" means the documents referred to in Clause 2.3.1.
"Project Facilities" means the Project Road, the Maintenance Depot and
the Off-Site Facilities.
"Project Quality Director" means the person so appointed in accordance
with Clause 21.5 [Project Quality Director].
"Project Road" (other than for the purposes of Part 6 of Schedule 12
[User Paid Tolls]) means the Existing Road and the New Road.
"Provisional Monthly Payment" has the meaning given in Clause 29.3.1.
"Proponent" has the meaning given in paragraph 2.1 of Part 1 of
Schedule 12.
"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.
"Protestor" means any person not entitled to be upon the Site or
Adjacent Areas and who is engaged in a protest action against the
construction or operation of the Project Road or against the
construction or operation of highways generally.
"Qualifying Number" has the meaning given in Clause 24.3.
"Quality Management Systems" has the meaning given in Clause 21.1
[Quality Management Systems and Plans].
"Quality Manual" means any quality manual or procedure referred to in
Clause 21.2 [Quality Manuals and Procedures].
"Quality Plan" means any quality plan in force from time to time in
accordance with Clause 21.1 [Quality Management Systems and Plans], and
in particular:
(a) the DBFO Co's Quality Plan for the Management of Construction;
18
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
(b) the Designer's Quality Plan for Design;
(c) the Contractor's Quality Plan;
(d) the Designer's Quality Plan for Examination of the Works;
(e) the DBFO Co's Quality Plan for the Management of O&M; and
(f) the DBFO Co's Quality Plan for O&M.
"Quarter" means a period of three calendar months beginning on 1st
January, 1st April, 1st July or 1st October.
"Regional Legislative Body" means any body (having jurisdiction solely
within a part of the United Kingdom) established after the date of this
Agreement with legislative powers that, at the date of this Agreement,
were exercisable solely by Parliament (but only to the extent such body
is exercising such legislative powers).
"Relevant Authority" means any entity whose authority is or may be
required for the carrying out of all or any part of the Operations or
which has any authority in respect of any part of any of the Project
Facilities under any Law, including without limitation those entities
identified in Part 1 of Schedule 8 and "Relevant Authorities" shall be
construed accordingly, provided that, for the purposes only of the
definition of "Change in Law", "Relevant Authority" shall exclude the
Parliament or Government of the United Kingdom or any department or
agency thereof (other than the Secretary of State as highway authority
for any road other than the Project Road), any Regional Legislative
Body or any department or agency thereof and the Council of the
European Union or the Commission of the European Communities or any
entity to which the Council of the European Union or Commission of the
European Communities has delegated any of its powers.
"Relevant Change" means each Eligible Change which is, in accordance
with paragraph 2.2.1 of Part 1 of Schedule 12, the subject of a notice
pursuant to paragraph 2.1 of Part 1 of Schedule 12.
"Relevant Change in Law" means any Change in Law the purpose and effect
of which is to discriminate against:
(a) the Project Road in relation to other roads;
(b) roads whose design, construction, financing and operation are
procured by a single contract on a similar basis to the
Project Road in relation to other roads;
(c) the DBFO Co in relation to other companies; or
(d) companies undertaking the functions referred to in paragraph
(b) above (under a single contract with the Secretary of State
similar to this Agreement) in relation to other companies;
provided that Legislation which also affects roads other than the
Project Road or companies other than the DBFO Co in the same terms
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.
"Relevant Date" has the meaning given in Clause 11.1.3.
"Relevant Funding Liabilities" has the meaning given to it in Clause
40.3.3.
"Relevant Notice" has the meaning given in Clause 25.5.1.
19
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"Relevant O&M Contract" has the meaning given to it in Clause 2.3.5.
"Relevant O&M Contractor" has the meaning given to it in Clause 2.3.5.
"Relevant Payments" has the meaning given in Clause 36.3A.1.
"Relevant Remedial Works" has the meaning given in Clause 15.4.3.
"Relevant Renewal Works" has the meaning given in Clause 17.8.1.
"Relevant Secretary of State Breach" has the meaning given to it in
Part 1 of Schedule 11.
"Remedial Period" has the meaning given in Clause 24.1 [Remedial
Works].
"Renewal Amount" has the meaning given in Clause 17.3.1.3.
"Renewal Programme" has the meaning given in Clause 17.3.1.2.
"Renewal Works" has the meaning given in Clause 17.3.1.1.
"Report" means any report given in accordance with Clause 22.1
[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.
"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
immediately following termination of this Agreement pursuant to Clause
40 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, but excluding
the value of any assets to the extent that the liability
incurred in connection with the acquisition or creation
thereof is excluded under Clauses 40.3.2.3 to 40.3.2.5,
such value to be as agreed by the Department's Representative 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 17.7.1.
"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 or, for purposes of
Schedule 12, any other date on which any Index is to be applied.
"Review Procedure" means the procedure whereby submissions are made to
the Department's Agent or the Department's Representative as set out in
Part 3 of Schedule 7 [Review Procedure].
"Revised Values" has the meaning given in paragraph 5.3 of Part 1 of
Schedule 12.
20
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
"Rights in respect of land" means any right over or in respect of or
otherwise relating in any way to land, whether temporary, revocable,
legal, equitable or otherwise of whatever nature.
"Road Length" means each stretch of the Project Road served by a single
Measurement Point, as shown in drawings numbered C2/09/100/14 Revision
B, C1/09/100/01 Revision C, C3/09/100/01 Revision B and C3/09/100/02
Revision C contained in Part 7 of Schedule 3 as adjusted to reflect the
addition of any Measurement Points pursuant to Clause 28.2.1.2.
"Road User's Charter" means the document of that name issued by the
Highways Agency in April 1994 or any replacement or substitute
therefor.
"Routine Maintenance" means work which is short term or cyclic in
nature and necessary to keep the Project Road in good and safe working
order, including without limitation minor repair s to all elements of
the Project Road, cleansing, verge and horticultural maintenance and
Winter Maintenance and inspections and surveys associated with any of
the foregoing.
"RPI" means the Retail Prices Index (all items) published by the
Central Statistical Office.
"Safety Improvement" means any Subsequent Scheme or Improvement
proposed by the DBFO Co in accordance with paragraph 3 of Part 5 of
Schedule 13.
"Safety Performance Payment" means the payment referred to in paragraph
2.1 of Part 4 of Schedule 9.
"Schedule of Lane Closures" means a schedule submitted:
(a) by the DBFO Co under Clause 13.3.1 (or any revision thereof
submitted under Clause 13.3.2 or Clause 13.3.3) indicating the
period or periods during which the DBFO Co plans to effect any
Lane Closure in respect of the Project Road; or
(b) by the Secretary of State under Clause 13.5.2 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 such case any Type C lane closures (as defined
in Section 6 of Chapter 8 of the Traffic Signs Manual).
"Scheme Orders" means those road orders and compulsory purchase orders
listed in Part 6 of Schedule 3.
"Second Inspection" has the meaning given in Clause 17.4.1.
"Second Party" has the meaning given in Clause 44.1.3.
"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;
(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.
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
"Service Obligations" has the meaning given in Clause 36.3A.5.
"Shadow Penalty Point Notice" has the meaning given in Clause 24.1A.1.
"Shadow Penalty Points" has the meaning given in Clause 24.1A.2.2.
"Site" means the land, spaces, waterway, roads and any surface required
for the Project Road and the Maintenance Area, shown or identified as
such on the date hereof on drawings entitled 'Land Areas' contained in
Part 7 of Schedule 3.
"Specification for Highway Works" or "SHW" means the Specification for
Highway Works, published by HMSO as Volume 1 of the Manual of Contract
Documents for Highway Works.
"Sponsors" means both or either of Trafalgar House Corporate
Development Limited registered in England with number 1540913 and BICC
plc registered in England with number 395826 and "Sponsor" shall be
construed accordingly.
"Statutory 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 the Operations
or whose systems may be affected by the conduct of any of the
Operations.
"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-In Bond" has the meaning given in Clause 1.1 of the Direct
Agreement.
"Step-In Obligor" has the meaning given in Clause 1.1 of the Direct
Agreement.
"Step-In Period" has the meaning given in Clause 1.1 of the Direct
Agreement.
"Step-In Undertaking" has the meaning given in Clause 1.1 of the Direct
Agreement.
"Structure" means (except in Parts 1, 2 and 5 of Schedule 4) any
(temporary or permanent):
(a) bridge, tunnel or culvert having an individual span of 3
metres or more or (in respect of a multi-span structure) a
cumulative span of 5 metres or more;
(b) bridge, tunnel or culvert (other than of corrugated metal)
having a span of 1.8 metres or more and where the cover to the
road surface is less than 1 metre;
(c) corrugated metal bridge or culvert having a span of 0.9 metres
or more (irrespective of cover to the road surface);
(d) pedestrian subway (irrespective of span and cover to the road
surface);
(e) retaining wall, including without limitation reinforced earth,
anchored earth and cribwall systems with slope between
70(degree) and 90(degree) to the horizontal, where the level
of the fill at the back of the wall is greater than 1.5m above
the finished ground level in front of the wall;
(f) (save in respect of Clause 15.4 [Costs of Latent Defects])
environmental barrier; and
(g) (save in respect of Clause 15.4 [Costs of Latent Defects])
sign/signal gantry or high mast for lighting, television
cameras and catenary lighting systems.
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
"Subsequent Scheme" means any change, improvement or addition proposed
to be made by the DBFO Co to the design, layout or structure of the
Existing Road (other than any Upgraded Section) at any time or of the
New Road at any time after the issue of the Completion Certificate
which cannot lawfully be accomplished by the DBFO Co without obtaining
specific line, side road or compulsory purchase orders under the
Highways Act.
"Subsequent Scheme Notice" has the meaning given in paragraph 1.1 of
Part 3 of Schedule 13.
"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.
"Taxes" means all present and future taxes (including for the avoidance
of doubt, United Kingdom income tax, corporation tax and advance
corporation tax), levies, assessments, imposts, deductions,
withholdings and charges of a similar nature imposed by any
governmental authority of the United Kingdom or any part thereof and
any payments made in respect thereof, including, for the avoidance of
doubt, any interest thereon and any penalties with respect thereto and
"Tax" and "Taxation" shall be construed accordingly.
"Tax Relief' means any relief, credit, loss, allowance, deduction,
set-off or right to repayment in respect of Taxation.
"Technical Requirements" means the Construction Requirements, the O&M
Requirements, the Communications Requirements and the Handback
Requirements.
"Temporary Adjacent Areas" means those parts of the Adjacent Areas
shown or identified as such on drawings entitled 'Land Areas' contained
in Part 7 of Schedule 3.
"Temporary Construction Area" means at any time any area within any
Upgraded Section within which any part of the Works are actively being
carried out at such time.
"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 and Yorkshire
Holdings 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 Yorkshire Holdings; 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 40.1 [Termination Accounts].
"Termination Date" means the date upon which this Agreement terminates.
"Termination Notice" has the meaning given in Clause 3 of Part 4 of
Schedule 1.
"Terrorist Remedial Works" has the meaning given in Clause 27.9.3.
23
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"3i" means 3i Group plc.
"Traffic Census Equipment" has the meaning given in Clause 28.3.3.
"Traffic Data" means the information relating to traffic in the reports
submitted pursuant to paragraph 2 of Part 2 of Schedule 14.
"Traffic Noise Works" has the meaning given to it in Part 6 of Schedule
4.
"Traffic Payment" means the amount determined in accordance with Part 2
of Schedule 9 in respect of a Contract Year.
"Traffic Sign" has the meaning given to it in Section 64 of the Road
Traffic Regulations Act 1984.
"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.
"Traffic Signs Manual" means the manual of that name published by HMSO
and any associated advice (including without limitation all local
transport notes issued from time to time by the Department and
published by HMSO).
"Transfer Date" has the meaning given in Clause 7.3.5.
"Trunk Roads Maintenance Manual" or "TRMM" means the trunk roads
maintenance manual issued by the Department.
"Upgraded Sections" means those lengths of existing trunk road or
motorway described as such in Part 1 of Schedule 3 which are to be
widened or otherwise modified in accordance with the Construction
Requirements and the Communications Requirements.
"User Paid Tolls" has the meaning given in paragraph 1 of Part 6 of
Schedule 12.
"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 44.1.5.
"Verification" means the process of testing any of the Measuring
Equipment for the purpose of assessing any error in Measurement, and
"Verify" shall be construed accordingly.
"Warning Notice" has the meaning given in Clause 24.3.
"Winter Maintenance" means those works required to prevent the
formation of ice and to remove snow and ice as more particularly
identified in Section 5 of Part 2 of Schedule 6 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 Maintenance Depot, the Off-Site
Facilities and any works in respect of any De-Trunked Segment and all
related slip roads, access roads, side roads, bridges and other
24
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
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 lighting,
communications installations, embankments and cuttings and
archaeological and ecological works.
"Works Change" means a variation in the design, quality or quantity of
the Works and may include any addition, omission, substitution,
alteration in design and/or variation in the Construction Requirements
or the Communications Requirements. A Works Change shall be either a
Department's Works Change or a DBFO Co's Works Change.
"Works Programme" means the detailed programme of design,
investigations, construction and related works, based upon the
Programme, to be submitted by the DBFO Co in accordance with Clause
10.2 [Works Programme) or any amended or varied version thereof
submitted by the DBFO Co in accordance with Clause 10.3 [Variations to
Works Programme).
"Yorkshire Holdings" means Yorkshire Link (Holdings) Limited registered
in England with number 3059235.
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 are an integral part of this
Agreement and reference to this Agreement includes reference
thereto;
1.2.4 all references to agreements, documents or other instruments
include (subject to all relevant approvals and any other
provision of this Agreement concerning amendment of
agreements, documents or other instruments) 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;
25
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
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 shall be deemed to
include a reference to any successor to such public
organisation or any organisation or entity which has taken
over the functions or responsibilities of such public
organisation;
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 provided that, in the event of any
conflict or discrepancy between the stated revision of a
drawing in this Agreement (other than as set out in Appendix
0/4 to Part 2 of Schedule 4) and the stated revision of such
drawing as set out in Appendix 0/4 to Part 2 of Schedule 4,
the latter shall prevail;
1.2.14 all monetary amounts are expressed in pounds sterling; and
1.2.15 references to amounts or sums being expressed in April 1995
prices are references to amounts or sums which have been or
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 May 1995 for the month of April 1995. April 1995
prices shall be calculated by applying the following formula:
R(April 1995) = R(n) x RPI(April 1995)
----------------------
RPI(n)
where:
R(April 1995) = the relevant amount or sum
expressed in April 1995
prices.
N = the calendar month in
respect of which the April
1995 price comparison is to
be made.
RPI(April 1995) = the RPI published in May
1995 for the month of April
1995.
Rn = the actual amount or sum
pertaining in month n.
RPI(n) = the RPI published or which
is to be published in month
n+I for the preceding month
n.
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 signs 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:
26
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
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 (or, if the
ambiguity or discrepancy affects both the Works and any other
Operations, the Department's Representative) 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 or Department's Representative
under Clause 2.1 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 or Department's Representative shall be
treated as a Department's Works Change in accordance with Part 2 of
Schedule 12 or as a Department's Change in Specification in accordance
with Part 3 of Schedule 12, as appropriate, provided that if the
Department's Nominee considers there to be any ambiguity or uncertainty
as to which is appropriate, such decision shall be treated as a
Department's Change in Specification in accordance with Part 3 of
Schedule 12.
2.3 Project Documents
2.3.1 Prior to the execution of this Agreement the DBFO Co has
provided to the Secretary of State copies of the following
documents, which copies (if they are not originals) have been
initialled by the Parties for the purposes of identification:
2.3.1.1 the shareholders agreement between the Sponsors;
2.3.1.2 the Memorandum and Articles of Association of the
DBFO Co and Yorkshire Holdings;
2.3.1.3 each of the following:
2.3.1.3.1 the Direct Agreement;
2.3.1.3.2 a facility agreement of even date
herewith made between the DBFO Co,
Lloyds Bank Plc as agent, ABN AMRO Bank
N.V., Banque Indosuez, Credit Suisse,
The Dai-Ichi Kangyo Bank, Ltd., Lloyds
Bank Plc and National Westminster Bank
Plc as the arrangers and the financial
institutions described therein as
lenders in respect of maximum aggregate
credit facilities of (pound)268,540,000.
27
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
2.3.1.3.3 a facility agreement of even date
herewith made between the DBFO Co and
the European Investment Bank as lender
in respect of maximum aggregate credit
facilities of (pound)90,000,000;
2.3.1.3.4 a senior subordinated facility agreement
of even date herewith made between the
DBFO Co and Morgan Grenfell & Co.
Limited as lender in respect of maximum
aggregate credit facilities of
(pound)6,500,000;
2.3.1.3.5 a facility agreement of even date
herewith made between the DBFO Co and 3i
as lender in respect of maximum
aggregate credit facilities of
(pound)10,000,000;
2.3.1.3.6 a subordinated facility agreement of
even date herewith made between the DBFO
Co and Morgan Grenfell & Co. Limited and
The Royal Bank of Scotland plc as
lenders in credit facilities of such
maximum aggregate principal amount as
may be notified by the lenders to the
DBFO Co in accordance with the terms
thereof (but which shall not, in any
event, exceed (pound)20,000,000);
2.3.1.3.7 a senior guarantee facility agreement of
even date herewith made between the DBFO
Co and the European Investment Fund as
issuer of a guarantee to European
Investment Bank for outstandings under
the facility agreement referred to in
Clause 2.3.1.3.3. in respect of a
maximum amount of (pound)22,500,000;
2.3.1.3.8 a subordinated guarantee facility
agreement of even date herewith between
the DBFO Co and the European Investment
Fund as issuer of a guarantee to the
lenders under the senior subordinated
facility agreement referred to in Clause
2.3.1.3.4 for outstandings of up to
(pound)10,000,000;
2.3.1.3.9 the debenture of even date herewith
granted by the DBFO Co to Lloyds Bank
Plc as security trustee under the
security trust deed referred to in
Clause 2.3.1.3.11;
2.3.1.3.10 the share mortgage (incorporating a
floating charge) of even date herewith
granted by Yorkshire Holdings to Lloyds
Bank Plc as security trustee under the
security trust deed referred to in
Clause 2.3.1.3.11 in respect of the
Ordinary Shares;
2.3.1.3.11 the security trust agreement of even
date herewith made between the DBFO Co,
the Credit Providers in the facility
agreements referred to in Clauses
2.3.1.3.2 to 2.3.1.3.8 (inclusive) and
Lloyds Bank Plc as intercreditor agent
and as security trustee;
2.3.1.3.12 the several International Swaps and
Derivative Association, Inc. 1992 master
agreements of even date herewith between
the DBFO Co and various of the Credit
Providers and the confirmations
thereunder in respect of transactions
entered into on the date hereof,
2.3.1.3.13 the two documents of undertaking and
guarantee of even date herewith made
between the DBFO Co, Morgan Grenfell &
Co.
28
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
Limited and Trafalgar House Public
Limited Company and BICC plc
respectively;
2.3.1.3.14 account mandates of even date herewith
from the DBFO Co to Lloyds Bank Plc in
relation to the opening and running of
the Project Accounts (as defined in the
Intercreditor Agreement);
2.3.1.3.15 fee letters of even date herewith in
connection with the payment by the DBFO
Co of the fees described therein in
relation to certain of the facilities
referred to in Clauses 2.3.1.3.2 to
2.3.1.3.8 (inclusive) above;
2.3.1.3.16 the direct agreement of even date
herewith made between the Contractor,
Trafalgar House Public Limited Company,
BICC plc, Lloyds Bank Plc as
intercreditor agent and as the security
trustee and the Borrower;
2.3.1.3.17 [Clause not used]
2.3.1.3.18 an Instrument of even date herewith
executed by the DBFO Co whereby it
created (pound)12,000,000 15% secured
subordinated stock (which loan stock is
subscribed for in full by the Sponsors);
2.3.1.3.19 the intercreditor agreement of even date
herewith between, amongst others, the
DBFO Co, the Credit Providers in the
facility agreements referred to in
Clauses 2.3.1.3.2 to 2.3.1.3.8
(inclusive) above, Trafalgar House
Corporate Development Limited and BICC
plc in respect of the regulation of the
claims of such lenders against the DBFO
Co;
2.3.1.4 the Construction Contract;
2.3.1.5 the agreement of even date herewith setting out the
terms of the appointment of an independent engineer
to act in relation to the Construction Contract and
the Performance Bond referred to in Clause 2.3.1.8;
2.3.1.6 a Guarantee of even date herewith issued by BICC plc
in favour of the DBFO Co in relation to certain
obligations of Balfour Beatty Civil Engineering Ltd.
under the Construction Contract;
2.3.1.7 a Guarantee of even date herewith issued by Trafalgar
House Public Limited Company in favour of the DBFO Co
in relation to certain obligations of Trafalgar House
Construction Special Projects Limited under the
Construction Contract;
2.3.1.8 the Performance Bond of even date herewith to be
issued by Chemical Bank as issuing bank in favour of
the DBFO Co and procured by the Contractor in
relation to certain obligations of the Contractor
under the Construction Contract;
2.3.1.9 the Design Contract (including, without limitation,
the terms and conditions of engagement of the
Archaeologist);
2.3.1.10 the Technical Services Agreement of even date
herewith made between the DBFO Co and the Sponsors in
relation to services to be provided by the Sponsors
to the DBFO Co;
29
M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
2.3.1.11 the Custody Agreement;
2.3.1.12 a Secondment Agreement of even date herewith between
the DBFO Co, Trafalgar House Services Limited and
BICC plc;
2.3.1.13 the Performance Guarantee of even date herewith
issued by Lloyds Bank Plc to the Secretary of State
pursuant to Clause 7.1.2;
2.3.1.14 the agreement relating to intellectual property
rights and other matters of even date herewith
between the DBFO Co, George Wimpey PLC, Trafalgar
House Corporate Development Limited, Trafalgar House
Construction Special Projects Limited, Morgan
Grenfell & Co. Limited and the Secretary of State;
2.3.1.15 an agreement of even date herewith made between the
DBFO Co and Babtie Group Limited;
2.3.1.16 the Lease referred to in Clause 7.1.5 (when entered
into);
2.3.1.17 the Contractor Deferral Agreement of even date
herewith made between the DBFO Co, the Sponsors and
the Contractor.
2.3.2 The DBFO Co shall perform its obligations under and observe
all the terms of the Project Documents to which it is a party
and (save in respect of the Funding Agreements) shall not:
2.3.2.1 terminate or permit the termination of any Project
Document to which it is a party (provided that this
Clause 2.3.2.1 shall not apply to a termination of
the Construction Contract in accordance with the
terms of the Direct Agreement or the direct agreement
referred to in Clause 2.3.1.3.16);
2.3.2.2 make or agree to any material amendment to or
material variation of any Project Document to which
it is a party;
2.3.2.3 in any material respect depart from, or waive or fail
to enforce any rights it may have under, any of the
Project Documents to which it is a party; or
2.3.2.4 enter into, or permit the entry by the Contractor or
the Designer into, any agreement or document which
would materially affect the interpretation or
application of any of the Project Documents;
unless the relevant document or proposed course of action has
been submitted to the Department's Nominee and there has been
no objection in accordance with the Review Procedure (provided
that, for the avoidance of doubt, nothing in this Clause 2.3.2
shall affect or restrict any right of the Secretary of State
to do or not to do, in his absolute discretion, any of the
things referred to in Clauses 2.3.2.1 to 2.3.2.4 (inclusive)
in respect of any of the instruments referred to in Clauses
2.3.1.11, 2.3.1.13, 2.3.1.14 and 2.3.1.16.
2.3.3 The Department's Nominee shall only be entitled to object to a
document or proposed course of action submitted to the Review
Procedure pursuant to Clause 2.3.2 on the grounds set out in
paragraph 3.1 of Part 3 of Schedule 7.
2.3.4 If at any time a material amendment is made to any Project
Document, the DBFO Co is granted a waiver or release of any of
the material obligations under any Project Document, or any
agreement is entered into which would materially affect the
interpretation or application of any of the Project Documents,
then the DBFO Co shall deliver to the Secretary of State a
conformed copy of each such amendment, release, waiver or
agreement or (so far as it is not
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
in writing) a true and complete record thereof in writing
within 15 Working Days of the date of its execution or
creation, certified as a true copy by an officer of the DBFO
Co.
2.3.5 The DBFO Co shall procure, in respect of each agreement (a
"Relevant O&M Contract") of any tier from time to time entered
into by the DBFO Co or any Contracting Associate (other than
the Contractor prior to the issue of the Completion
Certificate) with any third party (a "Relevant O&M
Contractor") relating to the operation and maintenance of any
of the Project Facilities (including without limitation the
Technical Services Agreement referred to in Clause 2.3.1.10),
that:
2.3.5.1 such Relevant O&M Contract shall include provisions
enabling and entitling the Secretary of State,
without qualification, to require the novation of
such agreement to the Secretary of State or his
nominee on termination of this Agreement such that,
upon such novation, a new agreement shall be
constituted between the Secretary of State and such
Relevant O&M Contractor upon the same terms, mutatis
mutandis, as such Relevant O&M Contract, provided
that the term of such new agreement shall (unless the
Secretary of State and such Relevant O&M Contractor
otherwise agree) be of a duration equal to the
unexpired term of such Relevant O&M Contract
immediately prior to such novation; and
2.3.5.2 such Relevant O&M Contract shall not be capable of
termination or suspension (nor shall any of its terms
be capable of variation or any further or alternative
terms become applicable) solely by reason of:
2.3.5.2.1 the occurrence of an Event of Default
under this Agreement;
2.3.5.2.2 any of the rights or remedies of the
Secretary of State under this Agreement
(including, without limitation,
termination of this Agreement) becoming
exercisable or being exercised; or
2.3.5.2.3 the right of the Secretary of State to
require the novation of such Relevant
O&M Contract becoming exercisable or
being exercised.
The DBFO Co shall procure that a copy of each Relevant O&M
Contract shall be given to the Secretary of State forthwith
upon the same being entered into.
2.4 Funding Agreements
2.4.1 The DBFO Co shall not:
2.4.1.1 terminate or permit the termination of any of the
Funding Agreements;
2.4.1.2 make or agree to any material amendment to or
material variation of any of the Funding Agreements;
2.4.1.3 in any material respect depart from, or waive or fail
to enforce any rights it may have under, any of the
Funding Agreements; or
2.4.1.4 enter into, or permit the entry by any of the
Sponsors, the Contractor or the Designer or any
Associated Company of any of them into, any agreement
or document which would materially affect the
interpretation or application of any of the Funding
Agreements; or
2.4.1.5 enter into any Funding Agreement other than those
listed in Clause 2.3.1.3;
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if to do so would materially and adversely affect:
2.4.1.6 the ability of the DBFO Co to perform its obligations
under this Agreement; or
2.4.1.7 any right of the Secretary of State under this
Agreement or the ability of the Secretary of State to
exercise or enforce any such right or to perform his
obligations under this Agreement or to carry out any
statutory function,
(provided that, for the avoidance of doubt, nothing in this
Clause 2.4.1 shall affect or restrict any right of the
Secretary of State to do or not to do, in his absolute
discretion, any of the things referred to in Clauses 2.4.1.1
to 2.4.1.5 (inclusive) in respect of the Direct Agreement).
For the avoidance of doubt, the occurrence of an event of
default under any of the Funding Agreements, or of some other
event giving rise to termination of any of the Funding
Agreements (other than by reason of any notice or election
under the terms of, or other voluntary act of the DBFO Co in
respect of, such Funding Agreement), shall not of itself
constitute a breach of Clause 2.4.1.1 or 2.4.1.3.
2.4.2 For the avoidance of doubt, each of the Original Funding
Agreements as in force at the date of this Agreement shall
constitute an "Approved Funding Agreement" for the purposes of
this Agreement.
2.4.3 The following provisions of this Clause 2.4 shall apply in
respect of any proposed New Funding Agreement or any proposed
Amended Funding Agreement to the extent that it would in any
way affect or alter:
2.4.3.1 the amount of any liability or indebtedness of, or
the amount of any loan or other financial
accommodation made or to be made available to, the
DBFO Co under or pursuant to such Funding Agreement
or any other Funding Agreement; or
2.4.3.2 the currency of such Funding Agreement, the stated
due date or dates for any payment or repayment under
such Funding Agreement, the rate or rates of interest
applicable under such Funding Agreement, any fees,
commissions or other charges payable under such
Funding Agreement or any other amount or matter which
would be taken into account in calculating the
Relevant Funding Liabilities,
but such provisions are without prejudice to the application
of Clause 2.4.1 in relation to any other terms of such
proposed New Funding Agreement or such proposed Amended
Funding Agreement. A New Funding Agreement or an Amended
Funding Agreement shall only constitute an "Approved Funding
Agreement" for the purposes of this Agreement if and to the
extent that its terms are approved by the Secretary of State
in accordance with the provisions of Clauses 2.4.4 to 2.4.6
(inclusive).
2.4.4 If the DBFO Co proposes that:
2.4.4.1 any Funding Agreement other than an Original Funding
Agreement (a 'New Funding Agreement"); or
2.4.4.2 any Approved Funding Agreement which is or is
proposed to be amended or supplemented (such Approved
Funding Agreement, as so amended or supplemented,
being an "Amended Funding Agreement"),
should constitute an Approved Funding Agreement for the
purposes of this Agreement, the DBFO Co shall give the
Secretary of State written notice to such effect, together
with a copy
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of such proposed New Funding Agreement or such proposed
Amended Funding Agreement, as the case may be.
2.4.5 Any, notice given pursuant to Clause 2.4.4 shall contain a
statement summarising:
2.4.5.1 in the case of a New Funding Agreement, the terms of
such proposed New Funding Agreement; or
2.4.5.2 in the case of an Amended Funding Agreement, the
terms of the relevant amendment or supplementation.
2.4.6 Subject to the Secretary of State having received such further
information in respect of the extent of the DBFO Co's
liabilities and obligations under such proposed New Funding
Agreement or Amended Funding Agreement, as the case may be,
and such other information in respect of the DBFO Co's
proposal and such proposed New Funding Agreement or Amended
Funding Agreement as he may reasonably require, the Secretary
of State shall, within 30 days after receipt of the DBFO Co's
notice (or, if later, the receipt of such information), notify
the DBFO Co whether or not (or the extent to which) he
approves as an Approved Funding Agreement such proposed New
Funding Agreement or such proposed Amended Funding Agreement,
as the case may be, such approval not to be unreasonably
withheld or delayed. If, but only where this Clause 2.4.6
applies, the DBFO Co considers the Secretary of State to have
withheld or delayed any such approval unreasonably, the DBFO
Co may refer the matter to the Disputes Resolution Procedure.
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 have the right and obligation to:
3.1.1 design, construct, complete, commission and test the Works;
3.1.2 finance, operate and maintain the Project Facilities during
the Contract Period; and
3.1.3 conduct the other Operations during the Contract Period;
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 9.4 [DBFO Co's Works Changes],
Clause 12.6 [Maintenance and Other Works], Part 3 of Schedule 13
[Subsequent Schemes], Part 4 of Schedule 13 [Improvements] and Part 5
of Schedule 13 [Safety Improvements].
3.3 Public Use
3.3.1 The DBFO Co shall:
3.3.1.1 subject to Clause 13.3 [Lane Closures], keep the
Existing Road open for public use; and
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3.3.1.2 from the date of issue of the Permit to Use, open
and, subject to Clause 13.3 [Lane Closures], keep
open the New Road for public use.
3.3.2 Without prejudice to Clause 26.2, all Operations shall be
carried on so as not to interfere unnecessarily with the
convenience of the public or the access to, use and occupation
of public or private roads or footpaths, 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 an efficient, effective and safe manner and in accordance
with Good Industry Practice and the Quality Plans;
3.4.2 in a manner that is not likely to be injurious to health or
(save to the extent necessarily caused by the carrying out of
the Works) to cause damage to property;
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 United Kingdom and European
Union (including all European Communities) Laws and all
Statutory Requirements.
3.5 Discrimination
The DBFO Co shall not, and confirms that it will procure that the
Contractor and the Designer 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 and
the Designer shall not discriminate on the grounds of nationality in
the selection of sub-contractors.
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4. GUARANTEES
4.1 Performance Guarantee
The DBFO Co shall prior to the issue of the Certificate of Commencement
deliver to the Secretary of State the Performance Guarantee in the sum
of (pound)20,000,000, duly executed by a bank or insurance company
approved by the Secretary of State.
4.2 Release
Following the occurrence of the Milestone Event or the earlier
termination of this Agreement pursuant to Clause 37 [Termination by the
DBFO Co] or Clause 38 [Non-Default Termination], unless there is any
accrued liability under the Performance Guarantee, the Secretary of
State shall undertake with due expedition such action as the DBFO Co
may reasonably request to release the issuer of the Performance
Guarantee from its liability thereunder.
4.3 Milestone Certificate
4.3.1 Subject to the Department's Agent having received from the
DBFO Co:
4.3.1.1 such proof of expenditure as the Department's Agent
shall have required in accordance with Clause 4.3.3;
and
4.3.1.2 a certificate of the DBFO Co (signed by two
directors) that to the best of its knowledge and
belief, having made all reasonable enquiries
(including without limitation of the Contractor and
any sub-contractors of any tier of the DBFO Co),
there are no outstanding liabilities (whether actual
or contingent) arising out of the design or
construction of the New Road to date save:
4.3.1.2.1 as set out in such certificate; and
4.3.1.2.2 for the DBFO Co's liability to comply
with such of its obligations under
Clause 3.1 as they fall due, in
accordance with the terms of this
Agreement, to be performed after the
date of such certificate,
the Department's Agent shall, within 28 days after receiving a
written request from the DBFO Co so to do, determine whether
the aggregate amount properly and prudently expended by the
Contractor in the design and construction of the Works (net of
any outstanding liability arising out of the design or
construction of the New Road as certified pursuant to this
Clause 4.3.1.2 or as notified by the Department's Agent to the
DBFO Co prior to the issue of the Milestone Certificate, other
than any liability to make any payment properly incurred under
the Construction Contract or any sub-contract) (the "Initial
Design and Construction Value") exceeds (pound)62,500,000.
4.3.2 If the Department's Agent does so determine that the Initial
Design and Construction Value exceeds (pound)62,500,000, then
the Secretary of State shall procure that the Department's
Agent shall issue the Milestone Certificate within 7 days.
4.3.3 The DBFO Co shall promptly submit to the Department's Agent
all such proof of expenditure or other evidence in respect of
the Initial Design and Construction Value as the Department's
Agent shall reasonably require for the purpose of determining
the Initial Design and Construction Value.
4.3.4 If any Dispute shall arise as to whether the aggregate amount
properly and prudently expended by the Contractor exceeds
(pound)62,500,000, either Party may refer the Dispute to the
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
Disputes Resolution Procedure and, in making such
determination, the Expert shall have regard to such principles
of Good Industry Practice in respect of such matters as he
considers relevant to such determination, provided that if the
application of such principles would require the Expert to
include in his determination a consideration of any bill of
quantities or other costings or estimates prepared by the
Contractor or the DBFO Co in respect of the design and
construction of the New Road, the Expert shall, for the
purposes of such determination, disregard any of the prices
attributed to any part of the design and construction of the
New Road by the Contractor or the DBFO Co in such bill of
quantities or other costings or estimates to the extent that,
in the Expert's opinion, they exceed the market price for the
relevant type of work prevailing in the United Kingdom
construction industry at such time.
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5. FINANCIAL MODEL
5.1 Custody Arrangements
5.1.1 Immediately on execution of this Agreement, 2 copies of the
Financial Model shall be lodged by the DBFO Co (after
verification of the identity of the Financial Model on behalf
of the Secretary of State) with The National Computing Centre
Limited of Oxford House, Oxford Road, Manchester M1 7ED to be
held in custody upon the terms set out in the Custody
Agreement. The Parties shall agree a substitute custodian in
the event that The National Computing Centre Limited ceases to
act as custodian.
5.1.2 The DBFO Co shall in addition promptly lodge with The National
Computing Centre Limited 2 copies of any revisions to the
Financial Model in accordance with paragraph 7 of Part 1 of
Schedule 12, to be held in custody upon the terms set out in
the Custody Agreement.
5.2 Costs
The cost of these custody arrangements shall be met in the first
instance by the Secretary of State and he shall be reimbursed one half
of such costs by the DBFO Co.
5.3 Base Case
A copy of a print out of the assumptions, cash flow, balance sheet and
profit and loss parts of the Base Case is attached as Part 3 of
Schedule 1.
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PART II
OPERATIONS
6. SITE INSPECTION
Without prejudice to Clause 15 [Latent Defects in Existing Road] and
without limitation to any other provision of this Agreement (including
without limitation Clause 34.2.2), the DBFO Co shall be deemed prior to
executing this Agreement to have, and warrants that it has:
6.1 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;
6.2 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;
6.3 satisfied itself as to:
6.3.1 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;
6.3.2 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 Adjacent Areas, with particular regard
to the Requirements of Interested Parties; and
6.3.3 the precautions and times and methods of working
necessary to prevent any unnecessary nuisance or
interference (and to minimise any necessary nuisance
or interference), whether public or private, being
caused to any third parties;
6.4 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,
6.5 has conducted its own analysis and review of the other
materials, documents and data referred to in Clause 34.2.1
which bear on any of the matters referred to in Clauses 6.1,
6.2 and 6.3; and
6.6 generally obtained for itself all necessary information as to:
6.6.1 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
6.6.2 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 shall be without
limitation to the provisions of any other sub-Clause of this Clause 6.
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7. COMMENCEMENT
7.1 Conditions to Commencement
The following shall be conditions to the issue of the Certificate of
Commencement:
7.1.1 the Secretary of State having received from the DBFO Co notice
confirming:
7.1.1.1 that all conditions to the availability of funds by
the DBFO Co under the Funding Agreements (other than
the issue of the Certificate of Commencement) have
been satisfied or waived;
7.1.1.2 the unconditional subscription by Yorkshire Holdings
of (pound)3,000,001 for 3,000,001 Ordinary Shares of
the DBFO Co at par and the unconditional receipt by
the DBFO Co of such subscription moneys; and
7.1.1.3 the unconditional subscription by the Sponsors of
(pound)12, 000,000 loan stock issued by the DBFO Co
at par under an instrument constituting
(pound)12,000,000 15% secured subordinated stock
issued by the DBFO Co and the unconditional receipt
by the DBFO Co of such subscription moneys;
in each case accompanied 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;
7.1.3 the Secretary of State having received such evidence of
compliance with Clause 18 [Insurance] as he may reasonably
require;
7.1.4 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
7.1.5 the obtaining of a valid Court order made under the provisions
of Section 38(4) of the Landlord and Tenant Act 1954 excluding
the provisions of Sections 24 to 28 (inclusive) of that Act in
respect of the Lease.
7.2 Certificate of Commencement
Subject to Clause 36.1.4, the Secretary of State shall issue the
Certificate of Commencement no later than the date on which he receives
notice from the DBFO Co confirming that all the conditions referred to
in Clause 7.1 have been satisfied.
7.3 Commencement of Operation and Maintenance
7.3.1 Subject to Clause 7.3.2 and Clause 7.3.3, the DBFO Co shall be
responsible for the operation and maintenance of the Project
Facilities from the Commencement Date.
7.3.2 Subject to Clause 7.3.3, the DBFO Co shall be responsible for
the operation and maintenance of the following sections of the
Existing Road from the date set out below in respect of each
such section:
7.3.2.1 M1 north of the M1/M62 Junction 42/29 (Lofthouse) to
a point on the south side of Urn Farm overbridge
including the northbound access slip road and
southbound exit slip road at M1/M62 Junction 42/29
from 29th July 1996;
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
7.3.2.2 M62 east of Junction 28 (Tingley) to the M1/M62
Junction 42/29 (Lofthouse) including the access and
exit slip roads to the east of Junction 28 and to the
west of Junction 29 from 8th July 1996; and
7.3.2.3 A1(T) northwards from a point 520m south of the Old
Great North Road at Micklefield to a point lkm north
of A64(T) Leeds Road at Bramham including access and
exit slip roads at A64(T) (Bramham Crossroads) and
A642 (Hook Moor) from 8th July 1996.
7.3.3 The DBFO Co shall be responsible for Winter Maintenance in
respect of the Existing Road from the date of issue of the
Permit to Use.
7.3.4 The DBFO Co shall procure that, within 90 days after the date
of this Agreement, the Liaison Procedures referred to in
Clause 12.5.1 are developed and agreed with each of the
persons referred to in paragraph 1 of Part 2 of Schedule 16.
7.3.5 The DBFO Co shall procure that adequate procedures are agreed
between the DBFO Co and each of North Yorkshire County Council
(for A1 Trunk Road) and Owen Williams Limited (for M1 and M62
motorways) for the transfer of the operation and maintenance
of the relevant section of the Existing Road to the DBFO Co
with effect from the date (the "Transfer Date") on which the
DBFO Co is to commence operation and maintenance of it under
Clause 7.3.2. Such agreement shall be reached by the earliest
to occur of:
7.3.5.1 the date which is 90 days after the date of this
Agreement; and
7.3.5.2 the date which is seven days prior to the Transfer
Date in respect of the relevant section of the
Existing Road.
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
8. LAND
8.1 Access for DBFO Co
Subject to the conditions set out in Clause 7.1 having been and
remaining satisfied and subject to Clause 8.3 and to the provisions of
the Secretary of State's disclosure letter of even date herewith from
the Secretary of State to the DBFO Co, 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 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 subject to the provisions of Clause 12.4.2, the right of any
Relevant Authority under any Law or Statutory Requirement to
have access to the Site or the Adjacent Areas;
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 12.4.1 [Access];
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; and
8.1.7 the terms of the Lease (in the case of the Maintenance Area).
8.2 Duration
Subject to Clause 39.1, the commencement and duration of the rights of
access given under Clause 8.1 shall be as follows:
8.2.1 in respect of the Site, from the Commencement Date or, in the
case of the Existing Road, the relevant date set out in Clause
7.3.2, 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 a de-trunking order comes into
effect;
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 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 11.3 [Local Facilities and De-Trunked
Segments];
8.2.3 in respect of the Adjacent Areas other than 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 Adjacent Areas under the Programme and
thereafter until the end of the Contract Period.
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
8.3 Limitation
8.3.1 The rights of access referred to in Clause 8.1 shall subsist
for the purposes of carrying out the Operations and for no
other purposes. Save in respect of any access to the
Maintenance Depot under the terms of the Lease, any access
given under Clause 8.1 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.
8.3.2 Without prejudice to the DBFO Co's obligations under this
Agreement, the rights of access given to the DBFO Co under
Clause 8.1 shall not apply, and (without prejudice to Clause
9.3 [Review Procedure]) the DBFO Co shall not commence any of
the Operations in respect of, any part of the Existing Road
prior to the later of:
8.3.2.1 the date on which the Secretary of State is satisfied
that the Liaison Procedures referred to in Clause
12.5.1 have been developed and agreed with each of
the persons referred to in paragraph 1 of Part 2 of
Schedule 16; and
8.3.2.2 the date on which the Secretary of State is satisfied
that adequate procedures have been agreed between the
DBFO Co and each of North Yorkshire County Council
(for A 1 Trunk Road) and Owen Williams Limited (for M
1 and M62 motorways) for the transfer of the
operation and maintenance of the relevant section of
the Existing Road to the DBFO Co with effect from the
date on which the DBFO Co is to commence operation
and maintenance of it under Clause 7.3.2.
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 25,
and the DBFO Co shall bear and indemnify the Secretary of
State in respect of all costs and charges in respect of and
any Loss or Claims arising from such entry.
8.4.2 Save as provided in Clause 8.4.1, the DBFO Co shall procure,
and shall bear and indemnify the Secretary of State in respect
of 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].
8.5 Off-Site Works
Without prejudice to Clause 11.2.6.3, to the extent that Off-Site Works
are 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 access to the DBFO Co of areas required
to carry out the Off-Site Works, then and during any such period the
DBFO Co shall not be required to carry out the Off-Site Works relating
to such area.
8.6 Acquisition of Land by DBFO Co
The DBFO Co shall not acquire any land or any interest in any land
required for or for the support of the Project Facilities without the
prior consent of the Secretary of State.
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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 comprising the Site and the Adjacent
Areas.
8.8 Boundaries of Site and Adjacent Areas
8.8.1 The Parties acknowledge that the boundaries of the Site and
Adjacent Areas, as they relate to the New Road and as
reflected on drawings entitled 'Land Areas' contained in Part
7 of Schedule 3, 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 the 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
entitled 'Land Areas' contained 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 Lease of Maintenance Depot
8.9.1 Subject to the conditions set out in Clause 7.1 (other than
those contained in Clause 7.1.4) having been and remaining
satisfied, the Parties shall, on the date which is not later
than the first to occur of:
8.9.1.1 the issue of the Completion Certificate; and
8.9.1.2 the date which is 14 days after the date on which the
Department's Agent notifies the DBFO Co that he is
satisfied that the construction of the Maintenance
Depot has been completed in all material respects in
accordance with the Construction Requirements insofar
as they relate to the Maintenance Depot,
enter into the Lease, the term of which shall take effect from
the Commencement Date.
8.9.2 In the event of any conflict or inconsistency between the
terms of this Agreement and the terms of the Lease, the terms
of the Lease shall prevail.
8.9.3 The Secretary of State will:
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8.9.3.1 use all reasonable endeavours to perfect his title to
the premises to be demised by the Lease prior to
completion of the Lease and in any event will do so
as soon as possible thereafter;
8.9.3.2 provide the DBFO Co with all such evidence available
of the Secretary of State's title and reasonable
assistance as will enable the DBFO Co to apply for
the registration of the Lease at H.M. Land Registry,
such evidence to be given forthwith after the
Secretary of State has acquired title to those
premises.
8.10 Disposal of Materials Won on Site
The right of the DBFO Co to 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") shall be subject to the following provisions of this Clause
8.10:
8.10.1 the DBFO Co may only excavate, extract, dispose of, exploit or
otherwise deal with any Site Materials:
8.10.1.1 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;
8.10.1.2 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;
8.10.1.3 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
8.10.1.4 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;
8.10.2 subject to Clause 8.10.3, the Secretary of State shall not be
entitled to any payment from the DBFO Co in relation to any
excavation, extraction, disposal, exploitation of or other
dealing with any Site Materials in accordance with Clause
8.10.1; and
8.10.3 without prejudice to the generality of Clause 35.1, the DBFO
Co shall indemnify and keep indemnified the Secretary of State
in respect of any Claims or Losses of any person 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 this Clause 8.10.
8.11 Responsibility for Protestors and trespassers
8.11.1 For the avoidance of doubt, the DBFO Co shall bear the entire
risk of any action by any Protestor in respect of the Project.
8.11.2 The Secretary of State shall not be responsible for the
presence on the Site or Adjacent Areas (whether before or
during the Contract Period) of any Protestor or other person
not entitled to be upon the Site or Adjacent Areas (in this
Clause 8.11, a "trespasser") nor for any act, omission or
default of any such person. The presence on or entry onto the
Site or Adjacent Areas of any such person and any lawful or
unlawful activities of such person shall not be a breach of
the obligations of the Secretary of State under this Clause 8
to make available to the
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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.
8.11.3 The DBFO Co shall not be relieved of any obligations under
this Agreement as a result of the presence on or entry onto
the Site or the relevant Adjacent Areas of any Protestor or
other trespasser or any lawful or unlawful activities of such
person.
9. DESIGN AND CONSTRUCTION
9.1 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
the Communications Requirements (subject to Clause 9.4 [DBFO Co's Works
Changes] and Part 2 of Schedule 12 [Department's Works Changes]), 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. For the avoidance of doubt,
if the Secretary of State wishes the DBFO Co to comply with any
Department's Standards or any amendment to any Department's Standards
or any amendment to the Road Users' Charter in any case issued after
6th October 1995, then a Department's Works Change or a Department's
Change in Specification, as the case may be, shall be issued to
implement such requirement.
9.2 Design and Certification Procedure
9.2.1 The DBFO Co shall procure that the Designer shall prepare and
supervise the preparation of, or shall adopt, all Design Data
in respect of the Works (including without limitation the
Detailed Design) in accordance with the Construction
Requirements and the Communications Requirements (subject to
Clause 9.4 [DBFO Co's Works Changes] and Part 2 of Schedule 12
[Department's Works Changes]) and shall comply with the Design
and Certification Procedure.
9.2.2 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.
9.2.3 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 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.
9.2.4 Without limitation to Clause 47.3 [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
Audit Team and any independent team or engineer within the
Designer, to fulfill the obligations required of them under
the Design and Certification Procedure shall be a breach of
the DBFO Co's obligations under this Agreement.
9.2.5 Design Data the subject of a Certificate which has been
submitted to the Department's Agent in accordance with the
Design and Certification Procedure shall not be departed from
otherwise than pursuant to a Works Change.
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9.3 Review Procedure
9.3.1 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 in accordance with the Design and Certification
Procedure. Relevant Certificates shall include, without
limitation, Design Certificates, Check Certificates, and
Traffic Management Certificates as appropriate under the
Design and Certification Procedure.
9.3.2 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 until there has been no
objection under the Review Procedure to that Certificate and
the relevant Design Data.
9.4 DBFO Co's Works Changes
If the DBFO Co proposes to vary or amend 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 Works Change. The DBFO Co shall not proceed to
implement a proposed DBFO Co's Works Change unless and until there has
been no objection in accordance with the Review Procedure (on the
grounds set out in paragraph 3.4 of Part 3 of Schedule 7) and the
relevant DBFO Co's Works Change Certificate has been issued by the
Designer and duly countersigned by the Department's Agent in accordance
with paragraph 7 of Part 3 of Schedule 7.
9.5 Breaches
9.5.1 In the event that the DBFO Co becomes aware of a breach of any
of Clauses 9.1 to 9.4 (both inclusive), the DBFO Co shall:
9.5.1.1 forthwith notify the Department's Agent of the fact
of such breach and the subject matter thereof, and
9.5.1.2 as soon as reasonably practicable make a submission
in respect of such breach to the Review Procedure,
including in such submission:
9.5.1.2.1 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 paragraph 9.5.1.1;
9.5.1.2.2 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
9.5.1.2.3 if such breach relates to a variation in
the design, quality or quantity of the
Works, an application for a DBFO Co's
Works Change.
9.5.2 The Department's Agent shall deal with a submission pursuant
to Clause 9.5.1 above as soon as reasonably practicable (but
without being subject to any specific time limit). The
Department's Agent shall be entitled to raise comments in
respect of such a submission in its absolute discretion, but
shall have regard to all the circumstances, including without
limitation:
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9.5.2.1 whether the breach is inadvertent on the part of the
DBFO Co or the Contractor;
9.5.2.2 whether there has been culpable delay in making the
relevant notification under Clause 9.5.1.1 or
submission under Clause 9.5.1.2;
9.5.2.3 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 9.5.1 the
Department's Agent 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 Works
Change for which a DBFO Co's Works Change Certificate has not
previously been issued.
9.6 Department's Design Data
Save as expressly provided in this Agreement, the DBFO Co shall not
seek to recover from the Secretary of State 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, 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.
9.7 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 27.2, 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.
9.8 Health and Safety
9.8.1 In this Clause 9.8:
9.8.1.1 "the Regulations" means the Construction (Design and
Management) Regulations 1994 (1994 S.I. 3140) (and
"Regulation" shall be construed accordingly); and
9.8.1.2 "the client" and "the Executive" have the same
meanings as in the Regulations.
9.8.2 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. The DBFO
Co shall forthwith send a copy of the declaration to the
Department's Agent 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 Agent.
During the Contract Period 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.
9.8.3 The DBFO Co shall observe, perform and discharge and shall
procure the observance, performance and discharge of:
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9.8.3.1 all the obligations, requirements and duties arising
under the Regulations in connection with the
Operations; and
9.8.3.2 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.
9.8.4 The DBFO Co shall indemnify the Secretary of State and his
servants and agents against all Loss and Claims arising out of
or in connection with any breach of the Regulations (whether
in relation to obligations, requirements and duties of the
client or otherwise).
9.9 Access and Facilities for Department's Agent
Without limitation to Clause 12.4 [Access], the DBFO Co shall procure
that:
9.9.1 subject to complying with all relevant safety procedures, the
Department's Agent 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;
9.9.2 the Department's Agent shall have the right to attend monthly
Site and other similar progress meetings; and
9.9.3 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 Agent and by any other person
authorised by the Department's Agent.
9.10 Noise Insulation Requirements
The DBFO Co shall comply with the provisions of Part 6 of Schedule 4.
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10. PROGRAMME AND DATE FOR COMPLETION
10.1 Programme
Subject to Clause 10.6 [Extension of Time], the DBFO Co shall be
responsible for ensuring that the investigations, design, construction,
commissioning, testing, maintenance and related works appearing in the
Construction Requirements and the Communications Requirements are
carried out in accordance with the Programme.
10.2 Works Programme
10.2.1 The DBFO Co shall procure the preparation of the Works
Programme, which shall be in all respects consistent with the
Programme, and shall provide to the Department's Agent a copy
of the same, accompanied by a Programme Certificate, within 28
days of the date of execution of this Agreement. The Works
Programme shall be in accordance with Good Industry Practice
and shall be in sufficient detail so as to enable the
Department's Agent to resource itself appropriately.
10.2.2 Subject to Clause 10.4, the Works Programme shall be provided
for the information of the Secretary of State and the
Department's Agent. In the event of any conflict between the
Programme and the Works Programme, the Programme shall (unless
otherwise agreed by the Secretary of State) prevail.
10.3 Variations to Works Programme
The DBFO Co shall promptly submit to the Department's Agent a copy of
any version of the Works Programme subsequently varied or amended, in
each case accompanied by a Programme Certificate.
10.4 Compliance with Programme
Should it appear to the Department's Agent at any time that the actual
progress of the Works does not conform with the Programme then the
Department's Agent shall be entitled to require the DBFO Co either:
10.4.1 to submit to the Department's Agent a report identifying the
reasons for the delay, and/or
10.4.2 to produce and submit to the Department's Agent in accordance
with the Review Procedure a revised Works Programme showing
the order of procedure and periods necessary to ensure
completion of the Works (other than the Excepted Works) by the
Date for Completion.
The Department's Agent shall be entitled to raise comments in respect
of the revised Works Programme only on the grounds set out in paragraph
3.5 of Part 3 of Schedule 7.
10.5 Date for Completion
10.5.1 The Date for Completion shall be determined by reference to
the period of time shown between the Commencement Date and the
Date for Completion in the Programme.
10.5.2 The DBFO Co shall use all reasonable endeavours to procure
that the Works (other than the Excepted Works) are completed
to such standard as would enable the issue of the Completion
Certificate by the date anticipated therefor in the Programme
and in any event will procure that the Works (other than the
Excepted Works) are completed to that standard by the Date for
Completion, subject only to any change in the Date for
Completion pursuant to Clause 10.6 [Extension of Time].
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10.6 Extension of Time
10.6.1 A delay in achieving completion of the Works (other than the
Excepted Works) to such standard as would enable the
Completion Certificate to be issued by the Date for Completion
shall be excused to the extent that it is caused by a Delay
Event affecting the DBFO Co (except and to the extent that the
same shall arise out of any act, neglect or omission of the
DBFO Co), provided that the DBFO Co:
10.6.1.1 notifies the Department's Agent of a Delay Event in
accordance with Clause 10.6.2 and provides such
further written information as the Department's Agent
may reasonably require regarding the nature and
likely duration of such event in accordance with
Clause 10.6.2;
10.6.1.2 affords the Department's Agent reasonable facilities
for investigating the validity of the DBFO Co's
claim, including on-site inspection; and
10.6.1.3 takes all steps necessary and consistent with Good
Industry Practice to mitigate the consequences of a
Delay Event (provided that this Clause 10.6.1.3 shall
not require the DBFO Co to accelerate the Works
Programme if to do so would require the DBFO Co to
incur material additional costs (other than where
such Delay Event is a Compensation Event)).
10.6.2 Save as provided in the last paragraph of this Clause 10.6.2,
the DBFO Co shall give notice to the Department's Agent as
soon as it can foresee a Delay Event occurring or, if the same
is not foreseeable, as soon as it shall become aware of such
Delay Event but in any case within 14 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 Agent, which shall
include:
10.6.2.1 a statement of which Delay Event the claim is based
upon;
10.6.2.2 details of the circumstances from which the delay or
impediment arises;
10.6.2.3 details of the contemporary records which the DBFO Co
will maintain to substantiate its claim;
10.6.2.4 details of the consequences, whether direct or
indirect, which such delay or impediment may have on
completion of the Works; and
10.6.2.5 details of any measures which the DBFO Co proposes to
adopt to mitigate the consequences of delay or
impediment.
The DBFO Co shall not give a notice under this Clause 10.6.2
in respect of a Relevant Secretary of State Breach unless such
Relevant Secretary of State Breach is likely directly to cause
a delay in completion of the Works.
10.6.3 Within 21 days of the DBFO Co receiving or becoming aware of
any supplemental information which may further substantiate or
support the DBFO Co's claim then, provided that there shall
have been no undue delay in either the receipt or becoming
aware of such information, the DBFO Co may submit further
particulars based on such information to the Department's
Agent.
10.6.4 If the DBFO Co has failed to comply with the requirements as
to the giving of notice under Clause 10.6.2, then the
Department's Agent may require the DBFO Co to promptly submit
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details of the reasons for such failure. If the Department's
Agent 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, and if either the Department's Agent is satisfied
or the decision of the Disputes Resolution Procedure is that
the said failure is excusable, then the Department's Agent
shall proceed to the evaluation of the request for an
extension of time in accordance with Clause 10.6.6. If the
decision of the Disputes Resolution Procedure is that the
failure is not excusable, then the DBFO Co shall not be
entitled to an extension of the Date for Completion in respect
of the relevant Delay Event.
10.6.5 The Department's Agent will be entitled, after receipt of
written details under Clause 10.6.2 or of further particulars
under Clause 10.6.3, by notice in writing to require the DBFO
Co to provide such further supporting particulars as it may
reasonably consider necessary.
10.6.6 Subject to:
10.6.6.1 the DBFO Co complying with Clause 10.6.2 or, if the
Department's Agent has issued a request pursuant to
Clause 10.6.4, the sufficiency of the reasons for
default being accepted by the Secretary of State or
under the Disputes Resolution Procedure; and
10.6.6.2 the DBFO Co putting forward proposals where required
pursuant to Clause 10.6.2.5 as to the reasonable
steps which it intends to take in order to mitigate
any delay;
the Department's Agent shall, as soon as reasonably
practicable, grant to the DBFO Co in writing (either
prospectively or retrospectively) such extension of the Date
for Completion as may in the opinion of the Department's Agent
be justified (the period of such extension being the "Delay
Period"). If the Department's Agent declines to grant an
extension of time or the DBFO Co considers that the extension
is insufficient, then the DBFO Co shall be entitled to refer
the matter to the Disputes Resolution Procedure.
10.6.7 In determining the Delay Period in accordance with Clause
10.6.6, the Department's Agent may, subject to Clause 10.6.9,
take into account, inter alia:
10.6.7.1 whether (and if so to what extent) as a consequence
of the failure of the DBFO Co to conduct the
Operations at all times prior to the occurrence of
the Delay Event in accordance with the Programme and
Good Industry Practice the impact of the Delay Event
on the ability of the DBFO Co to complete the Works
(other than the Excepted Works) by the Date for
Completion is greater than it would otherwise have
been; and
10.6.7.2 (without prejudice to Clause 10.6.1.3) the extent to
which the delay or impediment caused by the Delay
Event ought reasonably to be or to have been
mitigated by the DBFO Co by the taking of reasonable
steps (including but not limited to those put forward
in accordance with Clause 10.6.6.2) after the
occurrence of the Delay Event.
10.6.8 Where the DBFO Co may have a claim for additional payment as a
result of:
10.6.8.1 a Delay Event referred to in paragraph 1.1 of Part 1
of Schedule 11, the provisions of Clause 33.4 shall
have effect;
10.6.8.2 a Delay Event referred to in paragraph 1.2 of Part 1
of Schedule 11, the provisions of Part 2 of Schedule
12 [Department's Works Change] shall have effect; or
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10.6.8.3 a Delay Event referred to in paragraph 1.3, 1.5 or
1.6 of Part 1 of Schedule 11, the provisions of Part
5 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 a Delay Event referred to in
Clauses 10.6.8.1, 10.6.8.2 and 10.6.8.3 above, unless
otherwise expressly provided in this Agreement.
10.6.9 For the avoidance of doubt, the Department's Agent may not
refuse to grant the DBFO Co an extension of the Date for
Completion solely by reason of the Contractor having agreed
with the DBFO Co under the Construction Contract to carry out
the Works to such standard as would enable the Completion
Certificate to be issued by a date prior to the Date for
Completion or solely by reason that the Contractor has at any
time in fact progressed the Works beyond the stage to which
they would have to be progressed at such time in order for the
Completion Certificate to be issued by the Date for
Completion.
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11. INSPECTION AND COMPLETION
11.1 Permit to Use
11.1.1 The following provisions of this Clause 11.1.1 shall apply
in relation to the conduct of inspections of the New Road by
the Department's Agent for the purposes of determining
whether the New Road has been completed to such extent as to
be suitable and safe for use by members of the public
without traffic management restrictions (other than those
necessary and permitted in respect of the Construction
Finishing Works or the Excepted Works):
11.1.1.1 not more than 180 days, but not less than 90 days,
prior to the date (the "Expected Final Inspection
Date") upon which the DBFO Co expects the whole of
the Works will be completed or completed to such
extent that the New Road shall be suitable and
safe for use by members of the public without
traffic management restrictions (other than those
necessary and permitted in respect of the
Construction Finishing Works or the Excepted
Works) (the "Permit to Use Standard"), the DBFO Co
shall submit to the Department's Agent a schedule
(the "Inspection Schedule"):
11.1.1.1.1 identifying those areas or elements of
the Works (an "Inspection Area") which
it considers will be completed to the
Permit to Use Standard more than 28
days prior to the Expected Permit to
Use Date and which could reasonably be
subject to a discrete inspection by
the Department's Agent; and
11.1.1.1.2 specifying a timetable for the
carrying out of all such inspections,
provided that no such inspection shall
be programmed in such timetable to
occur earlier than the date on which
the Works comprised in the relevant
Inspection Area are expected by the
DBFO Co, at the time of submitting the
Inspection Schedule, to be completed
to the Permit to Use Standard;
11.1.1.2 the Department's Agent shall, within 14 days after
receipt of the Inspection Schedule either:
11.1.1.2.1 notify the DBFO Co of his agreement to
the Inspection Schedule; or
11.1.1.2.2 notify the DBFO Co of any objections
to the Inspection Schedule;
11.1.1.3 if the Department's Agent shall notify the DBFO Co
of any objections to the Inspection Schedule, the
DBFO Co shall submit a revised Inspection Schedule
taking account of the Department's Agent's
objections and the provisions of Clause 11.1.1.2
and this Clause 11.1.1.3 shall apply, mutatis
mutandis, until the Inspection Schedule is agreed
by the Department's Agent. If the Department's
Agent and the DBFO Co shall fail to agree upon the
Inspection Schedule within 28 days after the date
on which the DBFO Co submitted the first
Inspection Schedule, either of them may refer the
matter(s) in dispute to the Disputes Resolution
Procedure;
11.1.1.4 the DBFO Co will notify the Department's Agent on
each of the dates occurring 28, 14 and 7 days
prior to the date on which the Works comprised in
a relevant Inspection Area are expected by the
DBFO Co, at the time of the relevant notice, to be
completed to the Permit to Use Standard;
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11.1.1.5 on the date identified in any 7 day notice served
pursuant to Clause 11.1.1.4 or, if such date
differs from the date allocated to such inspection
in the Inspection Schedule (as agreed or
determined in accordance with Clause 11.1.1.2 or
Clause 11.1.1.3), as soon as reasonably
practicable after such date, the Department's
Agent shall commence an inspection of the relevant
Inspection Area;
11.1.1.6 within 10 Working Days after the completion of any
inspection under Clause 11.1.1.5, the Department's
Agent shall either:
11.1.1.6.1 issue a provisional confirmation that,
subject to completion of the relevant
areas or elements of the Works
comprised in the remaining Inspection
Areas, those areas or elements of the
New Road comprised in the relevant
Inspection Area have been completed to
the Permit to Use Standard; or
11.1.1.6.2 notify the DBFO Co of the reason(s)
for his refusal to issue such a
provisional confirmation;
11.1.1.7 in the event of service of a notice by the
Department's Agent under Clause 11.1.1.6.2 and
following completion by the DBFO Co of such
further works or other measures necessary or
appropriate to remedy the cause of the refusal to
issue the provisional confirmation under Clause
11.1.1.6.1, the DBFO Co may give notice to the
Department's Agent that such further works have
been completed or measures taken and the
Department's Agent shall inspect such further
works or measures as soon as reasonably
practicable following such notice, whereupon the
provisions of Clauses 11.1.1.4 to 11.1.1.6
(inclusive) and this Clause 11.1.1.7 shall apply,
mutatis mutandis;
11.1.1.8 the DBFO Co will notify the Department's Agent on
each of the dates occurring 28, 14 and 7 days
prior to the Expected Final Inspection Date;
11.1.1.9 on the date identified in the 7 day notice served
pursuant to Clause 11.1.1.8 (but subject to the
provision of a DBFO Co's Substantial Completion
Certificate in accordance with paragraph 32 of
Section A of Part 3 of Schedule 4 on or before
such date), the Department's Agent shall commence
an inspection of the New Road and the provisions
of Clause 11.1.2 shall apply (the date of such
commencement being the "Final Inspection
Commencement Date");
11.1.1.10 the provisions of this Clause 11.1.1, including
without limitation, the issue of any provisional
confirmation in accordance with Clause 11.1.1.6.1,
shall be without prejudice to the provisions of
Clauses 11.1.2 to 11.1.5 (inclusive);
11.1.1.11 without prejudice to the Department's Agent's
rights under Clause 11.1.3 to refuse to issue the
Permit to Use, the Department's Agent shall
endeavour in good faith to advise the DBFO Co
promptly following his becoming aware (as a result
of any inspection carried out under the foregoing
provisions of this Clause 11.1.1) of any matter
which, in the Department's Agent's opinion, is
likely to cause the Permit to Use not to be
issued; and
11.1.1.12 for the avoidance of doubt:
11.1.1.12.1 only the inspection of the Works made
in accordance with Clause 11.1.1.9
shall be relevant for the purposes of
the Department's Agent's determination
of whether or not to issue the Permit
to Use; and
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11.1.1.12.2 nothing in this Clause 11.1.1,
including without limitation the issue
of a provisional confirmation in
accordance with Clause 11.1.1.6.1,
shall prevent the Department's Agent
from relying on any matter which was
known to him at the time of such
provisional confirmation as a ground
for refusing to issue the Permit to
Use.
11.1.2 Subject to the Department's Agent's having issued a
provisional confirmation in accordance with Clause 11.1.1.6
in respect of each Inspection Area prior to the Final
Inspection Commencement Date, the Secretary of State shall,
on the Final Inspection Commencement Date (or on the first
available publication date thereafter), procure the
publication of the notice of opening in respect of the New
Road in accordance with the Special Roads (Notice of
Opening) Regulations 1992 (the "Notice of Opening").
11.1.3 The Department's Agent shall not later than the date which
is the later of (i) the date (the "Relevant Date") which is
10 Working Days after the Final Inspection Commencement Date
and (ii) the date which is 8 days after the publication of
the Notice of Opening, either:
11.1.3.1 issue the Permit to Use, whereupon the New Road
shall as soon as practicable be made available for
public use without traffic management restrictions
(other than those necessary and permitted in
respect of Construction Finishing Works or the
Excepted Works); or
11.1.3.2 notify the DBFO Co in writing of his decision not
to issue the Permit to Use and state the reasons
for such decision (which must be reasons within
Clause 11.1.6).
11.1.4 If the Permit to Use is not issued on or before the Relevant
Date solely by reason of any act, omission or default of the
Secretary of State in procuring the publication of the
Notice of Opening in accordance with Clause 11.1.2, then for
the purposes only of Clause 29.2 the Permit to Use will be
deemed to have been issued on the Relevant Date.
11.1.5 If the Permit to Use is deemed to have been issued on the
Relevant Date under Clause 11.1.4, then, for the purposes of
determining the amount of the Traffic Payment in respect of
the period from the Relevant Date to the date immediately
preceding the date on which the Permit to Use is actually
issued (the "Deemed Issue Period"), the numbers of vehicle
kilometres in respect of Other Vehicles and HGVs
respectively for each Road Length during the Deemed Issue
Period shall be deemed to be such numbers of vehicle
kilometres in respect of Other Vehicles and HGVs
respectively as are determined in respect of that period
which commences on the date on which the Permit to Use is
actually issued and whose duration is equal to that of the
Deemed Issue Period.
11.1.6 The Department's Agent may only refuse to issue the Permit
to Use if:
11.1.6.1 the New Road has not been completed to such extent
as to be suitable and safe for use by members of
the public without traffic management restrictions
(other than those necessary and permitted in
respect of the Construction Finishing Works);
11.1.6.2 there has been and continues to be material
non-compliance with the Design and Certification
Procedure;
11.1.6.3 satisfactory evidence of compliance with Clause
18.1.1.2 [Insurance Cover] has not been adduced;
or
11.1.6.4 the Relevant Date has not occurred.
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11.1.7 In the event of service of a notice by the Department's
Agent under Clause 11.1.3.2 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 the Permit to Use, the DBFO Co may give notice to the
Department's Agent that such further works have been
completed or measures taken and the Department's Agent shall
inspect such further works or measures within 5 Working Days
of such notice and the provisions of Clauses 11.1.2 to
11.1.6 (inclusive) and this Clause 11.1.7 shall thereafter
apply to such notice mutatis mutandis.
11.1.8 The Department's Agent may not refuse to issue the Permit to
Use by reason only of all or any of the Construction
Finishing Works not having been completed prior to the Final
Inspection Commencement Date.
11.2 Completion Certificate
11.2.1 Notwithstanding the issue of the Permit to Use in respect of
the New Road, the DBFO Co shall promptly complete all
outstanding Works, if any, as soon as practicable.
11.2.2 Not later than 28 days prior to the date upon which the DBFO
Co expects the whole of the Works (other than any Excepted
Works) to be completed, the DBFO Co shall issue to the
Department's Agent a notice to that effect. Upon the DBFO Co
confirming completion as aforesaid, the Department's Agent
shall within 15 Working Days of receipt of such confirmation
commence an inspection of the Works.
11.2.3 The Department's Agent shall within 10 Working Days of the
commencement of such inspection either:
11.2.3.1 issue the Completion Certificate; or
11.2.3.2 notify the DBFO Co in writing of his decision not
to issue the Completion Certificate and state the
reasons for such decision (which must be reasons
within Clause 11.2.4).
11.2.4 The Department's Agent may only refuse to issue the
Completion Certificate if:
11.2.4.1 the Works (other than any Excepted Works) have not
been completed in all material respects in
accordance with the Construction Requirements and
the Communications Requirements; or
11.2.4.2 there has been and continues to be material
non-compliance with the Design and Certification
Procedure.
11.2.5 In the event of service of a notice by the Department's
Agent under Clause 11.2.3.2 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 the Completion Certificate, the DBFO Co may give
notice to the Department's Agent that such further works
have been completed or measures taken and the Department's
Agent shall inspect such further works or measures within 5
Working Days of such notice and the provisions of Clauses
11.2.3 and 11.2.4 and this Clause 11.2.5 shall thereafter
apply to such notice mutatis mutandis.
11.2.6 The issue of the Completion Certificate shall be without
prejudice to:
11.2.6.1 the obligation of the DBFO Co to operate and
maintain the Project Facilities in accordance with
this Agreement;
11.2.6.2 any warranties given by the DBFO Co under this
Agreement;
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M1-A1 LINK ROAD (LOFTHOUSE TO BRAMHAM)
11.2.6.3 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
11.2.6.4 the obligation of the DBFO Co to complete all
Insulation Works in accordance with the
requirements of Part 6 of Schedule 4.
11.2.7 In this Clause 11.2, "Excepted Off-Site Works" means
Off-Site Works which:
11.2.7.1 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
11.2.7.2 have not been completed in all material respects
in accordance with the Construction Requirements
and the Communications Requirements at the time of
the inspection under Clause 11.2.2 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 such failure to give
access is not attributable to any act, neglect or
default of the DBFO Co or any failure by the DBFO
Co to give reasonable prior notice to such highway
authority of the DBFO Co's requirement for such
access).
11.3 Local Facilities and De-Trunked Segments
11.3.1 Not later than 28 days prior to the date upon which the DBFO
Co expects:
11.3.1.1 the works in respect of any Local Authority Road
will be completed in all material respects in
accordance with 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; or
11.3.1.2 the works in respect of any other Local Facilities
will be completed in all material respects in
accordance with the Construction Requirements;
the DBFO Co shall issue a notice to that effect to the
Department's Agent. Upon the DBFO Co confirming that
completion as aforesaid has occurred then the Department's
Agent 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.
11.3.2 The Department's Agent shall within 10 Working Days of the
commencement of such inspection either:
11.3.2.1 issue a Taking Over Certificate; or
11.3.2.2 notify the DBFO Co in writing of his decision not
to issue a Taking Over Certificate and state the
reasons for such decision (which must be reasons
within Clause 11.3.3).
11.3.3 The Department's Agent may only refuse to issue a Taking
Over Certificate if:
11.3.3.1 in the case of a Local Authority Road, it has not
been completed in all material respects in
accordance with the Construction Requirements or
has not been completed to such extent as to be
suitable and safe for use by members of the
public;
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11.3.3.2 in the case of any Local Facilities other than a
Local Authority Road, they have not been completed
in all material respects in accordance with the
Construction Requirements; or
11.3.3.3 in the case of any Local Facilities there has been
and continues to be material non-compliance with
the Design and Certification Procedure.
11.3.4 Upon the issue of a Taking Over Certificate in respect of
any Local Facilities or (if earlier or if no Works are to be
carried out in respect of a De-Trunked Segment) any
de-trunking order coming into effect in respect of any
De-Trunked Segment:
11.3.4.1 either the Secretary of State shall procure that
the relevant Local Person assumes responsibility
for the operation and maintenance (subject to
Clause 11.3.4.3) 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 11.3.4.3) of
such Local Facilities or De-Trunked Segment;
11.3.4.2 subject to Clause 11.3.8, 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
"Existing Road" or "Off-Site Facilities", as the
case may be, for all purposes of this Agreement
(save for the purpose of giving effect to the
provisions of this Clause 11.3); and
11.3.4.3 the DBFO Co shall execute all such work of
amendment, reconstruction, and remedying of
defects, shrinkages or other faults as the
Department's Agent may reasonably instruct the
DBFO Co to execute in order to bring or return the
relevant Local Facilities to the standard required
by the Construction Requirements, such instruction
to be issued either during the period of 52 weeks
following the date of issue of the Taking Over
Certificate or within 14 days after the expiration
of such period, as a result of an inspection made
by or on behalf of the Department's Agent prior to
its expiration.
11.3.5 In the event of service of a notice by the Department's
Agent under Clause 11.3.2.2 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 Agent that such further works have been
completed or measures taken. The Department's Agent 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 11.3.2 and 11.3.3 and this
Clause 11.3.5 shall thereafter apply to such notice mutatis
mutandis.
11.3.6 For the avoidance of doubt, all work referred to in Clause
11.3.4.3 shall be executed by the DBFO Co at its own cost.
11.3.7 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 11.3.4.1, 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 11.3 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 11.3.7.
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11.3.8 If the Secretary of State assumes responsibility for the
operation and maintenance of any Local Facilities or
De-Trunked Segment in accordance with Clause 11.3.4.1, then
he may at his option by notice to the DBFO Co require the
DBFO Co to continue the operation and maintenance of such
Local Facilities or De-Trunked Segment for such period as
may be specified in such notice. In such event:
11.3.8.1 the Secretary of State shall pay to the DBFO Co
such sum in respect of the 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
11.3.8.2 such Local Facilities or De-Trunked Segment shall
continue to be included in the definition of
"Existing Road" or "Off-Site Facilities", as the
case may be, for all purposes of this Agreement
for the period specified in such notice.
11.3.9 Subject to Clause 11.3.8, 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 Agent.
11.3.10 Subject to Clause 11.3.8, 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.
11.4 Disputed Certificate
11.4.1 If there shall be any Dispute as to whether the Permit to
Use, the Completion Certificate or a Taking Over Certificate
is required to be issued in accordance with the terms of
Clause 11.1, Clause 11.2 or Clause 11.3 respectively, then
either the Department's Agent or the DBFO Co may refer such
Dispute for resolution under the Disputes Resolution
Procedure.
11.4.2 The issues for resolution in any such referral to the
Disputes Resolution Procedure shall be:
11.4.2.1 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 11.1, Clause 11.2 or Clause 11.3
respectively; and
11.4.2.2 if so, the date on which such Permit to Use,
Completion Certificate or Taking Over Certificate
should have been issued.
11.4.3 The provisions of Part 5 of Schedule 12 [Compensation
Events] shall, if applicable, be given effect.
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12. OPERATION AND MAINTENANCE
12. 1 Operation and Maintenance
Subject to the last sentence of Clause 9.1:
12.1.1 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
Commencement Date or such later date or dates as are
specified in Clause 7.3 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)) 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.
12.1.2 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 the Permit to Use in respect of the New
Road and thereafter throughout the Contract Period, the DBFO
Co shall operate and maintain the New Road in accordance
with the terms of this Agreement (including without
limitation the O&M Requirements) and in such a manner as to
procure satisfaction of the Core O&M Requirements.
12.2 O&M Requirements
12.2.1 The DBFO Co may at any time hereafter submit to the
Department's Representative in accordance with the Review
Procedure any proposed revision to or substitution for the
O&M Requirements or the Communications Requirements so far
as they relate to operation and maintenance of the DBFO Co's
Systems (as defined in Schedule 17) (as set out in Part 2 of
Schedule 6 or Schedule 17 or as previously varied in
accordance with this Clause 12.2) or any part thereof. If
there shall be no objection to such proposed revision or
substitution (on the grounds set out in paragraph 3.6 of
Part 3 of Schedule 7), then the O&M Requirements or the
Communications Requirements (as the case may be) as so
varied shall be the O&M Requirements or the Communications
Requirements (as the case may be) for purposes of this
Agreement, subject to any further revision or substitution
to which there has been no objection in accordance with the
Review Procedure.
12.2.2 Without limitation to Clause 12.2.1, within 90 days of issue
of the Permit to Use in respect of the New Road, the DBFO Co
shall prepare and submit to the Department's Representative
in accordance with the Review Procedure a revision of the
then existing O&M Requirements containing such revisions as
necessary to provide for the operation and maintenance of
the entire Project Road, including the New Road
12.3 Inspections
12.3.1 The DBFO Co shall give the Department's Representative
timely notice of any general or principal inspection or any
other inspection of structures to be conducted in accordance
with the O&M Requirements.
12.3.2 The Department's Representative 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 12.3.1) upon giving reasonable notice
to the DBFO Co.
12.4 Access
12.4.1 The DBFO Co shall procure that:
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12.4.1.1 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
12.4.1.2 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:
12.4.1.2.1 to perform any obligations or exercise
any rights of the Secretary of State
under this Agreement, or
12.4.1.2.2 to fulfill any statutory functions of
the Secretary of State, or
12.4.1.2.3 without limitation to Clauses
12.4.1.2.1 and 12.4.1.2.2, to conduct
any study or trial for purposes of
research initiated by the Secretary of
State;
provided that any such action shall be conducted
in such manner as to minimise any adverse effect
on traffic flows on the Project Road and no such
action 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 at all (in the
case of any such action pursuant to Clause
12.4.1.2.3) or (in the case of any such action
pursuant to Clause 12.4.1.2.1 or Clause
12.4.1.2.2) beyond the extent reasonably necessary
to perform the obligations, exercise the rights or
fulfill the statutory functions of the Secretary
of State; provided further that no such action
shall be deemed to have substantially affected the
physical integrity of the Project Facilities if
appropriate remedial measures are taken following
the completion of such action to leave the Project
Facilities substantially in the condition they
were in prior to such action.
12.4.2 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 Statutory Requirement or any right of such Relevant
Authority under any Law, subject, other than in the case of
an emergency, to reasonable notice being given. Whenever
consistent with the requirements of the Relevant Authority
in carrying out such work, such access may be limited so as
not unnecessarily to impede or restrict traffic flows or any
works being carried out by the DBFO Co.
12.4.3 The Secretary of State shall procure that the DBFO Co (or
the Contractor) has access to the Connecting Roads at all
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.
12.5 Emergencies and Liaison
12.5.1 As soon as practicable after the date hereof the Parties
shall develop Liaison Procedures in accordance with the
provisions of Parts 1 and 2 of Schedule 16.
12.5.2 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.
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12.6 Maintenance and Other Works
The provisions of Clause 9 and paragraphs 3.4, 3.13, 4 and 7 of Part 3
of Schedule 7 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 therein to:
12.6.1 the Works being deemed a reference to such works the subject
of the Proposal;
12.6.2 the Department's Agent being deemed a reference to the
Department's Representative;
12.6.3 a DBFO Co's Works Change being deemed a reference to an
Alternative Proposal;
12.6.4 a DBFO Co's Works Change Certificate being deemed a
reference to an Alternative Proposal Certificate;
12.6.5 a Department's Works Change being deemed a reference to a
Department's Change in Specification; and
12.6.6 a Works Change being deemed a reference to an Alternative
Proposal or a Department's Change in Specification, as the
case may be.
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13. TRAFFIC MANAGEMENT
13.1 Traffic Management
13.1.1 Subject to Clauses 13.1.3 and 13.2, general
management of traffic on the Project Road shall be
the responsibility of the DBFO Co.
13.1.2 Users of the Project Road 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.
13.1.3 Control of any network control system applicable
to the Project Road (including without limitation
any system of variable message signs) shall be in
the absolute control of the police or (where they
fail or refuse to exercise such control) the
Secretary of State, or such other person as may be
appointed by the Secretary of State from time to
time to carry out that function.
13.2 Liaison
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.
13.3 Lane Closures
13.3.1 Within 90 days after the date of execution of this Agreement
the DBFO Co shall submit to the Department's Representative
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
Representative 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.
13.3.2 Not later than 60 days prior to the commencement of any
Quarter, the DBFO Co may submit to the Department's
Representative in accordance with the Review Procedure a
revision of the Schedule of Lane Closures submitted pursuant
to Clause 13.3.1 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.
13.3.3 The Department's Representative 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 13.3.1 or Clause 13.3.2 in accordance with
paragraph 3.7 of Part 3 of Schedule 7. In such event, the
Department's Representative shall notify the DBFO Co thereof
with reasons and shall indicate, in the case of an objection
pursuant to paragraph 3.7.3 or 3.7.4 of Part 3 of Schedule
7, 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 Representative, such other period and/or
duration. The DBFO Co shall thereupon amend the relevant
Schedule of Lane
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Closures accordingly and re-submit the same to the
Department's Representative in accordance with the Review
Procedure.
13.3.4 The DBFO Co shall not effect any Lane Closures save:
13.3.4.1 in accordance with a Schedule of Lane Closures to
which no objection has been made under the Review
Procedure;
13.3.4.2 in accordance with the procedures set out in
Clause 13.3.6;
13.3.4.3 in an emergency, in accordance with Clause 13.3.7;
or
13.3.4.4 for Type C lane closures (as defined in Section 6
of Chapter 8 of the Traffic Signs Manual).
The DBFO Co shall not effect any Lane Closure without first
obtaining any order in respect of such Lane Closure
necessary under any Law.
13.3.5 Notwithstanding that there has been no objection to a
Schedule of Lane Closures in accordance with the Review
Procedure, the Department's Representative 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 3.7.1 or 3.7.2 of Part 3 of
Schedule 7, provided, however, that the Department's
Representative may not require:
13.3.5.1 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
13.3.5.2 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.
13.3.6 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
Representative of such need and request approval of the
proposed commencement date and estimated duration of the
requisite Lane Closures. The Department's Representative's
approval of such works shall not be unreasonably withheld or
delayed, having regard to the factors set out in paragraph
3.7 of Part 3 of Schedule 7.
13.3.7 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 may effect such Lane
Closures, provided that the DBFO Co shall as soon as
reasonably practicable advise the Department's
Representative of such closure and the reasons therefor and
shall take all reasonable steps to minimise the duration of
such Lane Closure.
13.3.8 In the event of an emergency occurring on a Connecting Road,
at the request of the Department's Representative 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.
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13.3.9 Notwithstanding any other provision of this Clause 13.3, the
DBFO Co shall not effect any Lane Closure on the Existing
Road on any day on which a fixture relating to the 1996
European Football Championships is scheduled to take place
at any of the following stadia:
13.3.9.1 Old Trafford (Manchester);
13.3.9.2 Elland Road (Leeds);
13.3.9.3 St James' Park (Newcastle);
13.3.9.4 Anfield (Liverpool); and
13.3.9.5 Hillsborough (Sheffield).
13.3.10 The DBFO Co shall promptly remove traffic cones which are no
longer required.
13.4 Information Requirements
13.4.1 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 public information service
operated by or on behalf of the Secretary of State
(including without limitation the National Lane Closure
Bulletin and the Cones Hotline or any facility replacing the
same) 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.
13.4.2 The DBFO Co shall operate a telephone service 24 hours per
day to:
13.4.2.1 provide relevant information to callers about the
DBFO Co's traffic safety and management measures
on the Project Road and existing and planned Lane
Closures; and
13.4.2.2 to receive any complaints in respect of the
Project Road.
13.5 Secretary of State's Maintenance
13.5.1 Without prejudice to Clause 13.3.8, 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.
13.5.2 Within 90 days after the date of execution of this Agreement
the Department's Representative 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
Representative shall provide to the DBFO Co a Schedule of
Lane Closures in respect of the Connecting Roads for the
next succeeding Contract Year.
13.5.3 Other than in the case of emergency, the Department's
Representative 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 13.5.2.
13.5.4 The Schedule of Lane Closures provided to the DBFO Co
pursuant to Clause 13.5.2 and any revisions thereto provided
pursuant to Clause 13.5.3 shall be for information purposes
only.
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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.
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14. SIGNING AND COMMUNICATIONS
14.1 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:
14.1.1 to the extent required by any contrary provision in the
Technical Requirements;
14.1.2 to the extent required by any Department's Change in
Specification; and
14.1.3 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.
14.2 New Signs
Save to the extent that any of the same are specified by the Technical
Requirements or any Department's Change in Specification 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 14.5) 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 3.8 of Part 3 of
Schedule 7.
14.3 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.
14.4 Directional Signs
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 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. Without
limitation to the foregoing, the Secretary of State will install and,
for a period not exceeding eighteen months from the date of issue of
the Permit to Use, maintain at each location specified in Part 1 of
Schedule 20 a traffic sign (a "DBFO Co Traffic Sign"), provided that:
14.4.1 the DBFO Co shall bear and indemnify the Secretary of State
in respect of all costs and expenses incurred by the
Secretary of State relating to the manufacture or purchase
of all DBFO Co Traffic Signs and all costs and expenses
incurred by the Secretary of State in connection with their
installation and maintenance;
14.4.2 the legends appearing on the DBFO Co Traffic Signs shall be
those set out in Part 2 of Schedule 20 or as otherwise
approved in advance by the Secretary of State; and
14.4.3 the Secretary of State's obligations in respect of DBFO Co
Traffic Signs shall be subject always to any conflicting
requirements arising as a result of the Secretary of State's
duties as highways authority.
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14.5 Notification Signs
The DBFO Co shall install on the Project Road at distances not further
than l kilometre from each access to or exit from the Project Road
signs notifying the Users that the DBFO Co is responsible for the
maintenance and operation of the Project Road and giving a single
readily assimilable telephone number (not being chargeable at premium
rates) for enquiries and complaints in respect of the Project Road.
14.6 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 14.4 and 14.5)
on or near the Project Road or to remove any such Traffic Signs. Where
the Secretary of State does so require, then prior to the issue of the
Permit to Use in respect of signs to be placed on or near or removed
from the New Road such requirement shall be treated as a Department's
Works Change and otherwise it shall be treated as a Department's
Change in Specification.
14.7 Removal of Signs
The DBFO Co shall, at its own cost, remove all signs referred to in
Clause 14.5 within 30 days following termination of this Agreement.
14.8 Communications
14.8.1 The DBFO Co shall comply with the Communications
Requirements.
14.8.2 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.
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15. LATENT DEFECTS IN EXISTING ROAD
15.1 Latent Defects
15.1.1 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 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 34.2.1).
15.1.2 Without limitation to Clause 15.1.1, the DBFO Co
acknowledges that:
15.1.2.1 it is aware of the defects which are identified in
Part 4 of Schedule 3 and that no such defects
shall constitute a Latent Defect; and
15.1.2.2 the list included in Part 4 of Schedule 3 is not
intended as an exhaustive list of those matters
which do not constitute Latent Defects.
15.2 Discovery of Defects
In the event that a Latent Defect in the Existing Road shall become
apparent, the DBFO Co shall promptly give notice to the Secretary of
State identifying such defect. If the Secretary of State gives notice
to the DBFO Co that he believes such defect ought reasonably to be
remedied or rectified during the Contract Period, the Parties shall
endeavour to agree the required remedial action to be taken to enable
the Existing Road to be returned to a standard complying with the O&M
Requirements and as would enable the DBFO Co at the end of the
Contract Period to satisfy the requirements of Clause 17.1 [Handback
Requirements] on the assumption that the DBFO Co complied with its
obligations as to operation and maintenance of the Existing Road under
this Agreement, and in default of agreement the Dispute shall be
referred to the Disputes Resolution Procedure.
15.3 Remedial Action
The DBFO Co shall be responsible for the execution of the remedial
works agreed or determined under Clause 15.2.
15.4 Costs of Latent Defects
15.4.1 Without prejudice to Clause 15.4.3, the costs of and
associated with execution of the remedial works agreed or
determined under Clause 15.2 shall be borne by the DBFO Co.
15.4.2 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 a
Latent Defect in the Existing Road and the execution of the
remedial works.
15.4.3 The following provisions of this Clause 15.4.3 shall apply
in relation to the imposition of Lane Closure Charges in
respect of any Lane Closures on the Existing Road as a
result of the carrying out of the remedial works agreed or
determined under Clause 15.2 ("Relevant Remedial Works"):
15.4.3.1 the Parties shall seek to agree upon a schedule of
necessary lane closures (each a "Permitted
Closure") in respect of each relevant section of
the Existing Road in respect of the Relevant
Remedial Works prior to their commencement;
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15.4.3.2 if the Parties shall fail to agree upon any
Permitted Closure within 45 days after the date on
which the Relevant Remedial Works are agreed or
determined under Clause 15.2, the Dispute may be
referred by either Party to the Disputes
Resolution Procedure;
15.4.3.3 to the extent that any actual Lane Closure on a
particular section of the Existing Road exceeds
the Permitted Closure for that section (whether as
to the number of lanes, duration or otherwise),
Lane Closure Charges will be payable by the DBFO
Co in respect of that excess in accordance with
Part 3 of Schedule 9 (other than as solely
applicable to Construction Period LCCs), provided
that, to the extent that any such Lane Closure on
a particular section of the Existing Road
occurring during the Construction Period exceeds
the Permitted Closure for that section (whether as
to the number of lanes, duration or otherwise),
Lane Closure Charges will be payable by the DBFO
Co in respect of that excess in accordance with
Part 3 of Schedule 9 as it relates to Construction
Period LCCs.
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16. FOSSILS AND ANTIQUITIES
16.1 Archaeological Works
16.1.1 The DBFO Co shall procure that the Archaeologist has
unrestricted access to the Site and the Adjacent Areas at
all reasonable times prior to the issue of the Completion
Certificate and, without limitation to Clause 16.3, 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.
16.1.2 The DBFO Co shall undertake archaeological works on the Site
and Adjacent Areas in accordance with the Construction
Requirements (in particular as set out in Annex 14 to Part 2
of Schedule 4).
16.2 Ownership
As between the Secretary of State and the DBFO Co, all Fossils and
Antiquities shall be the property of the Secretary of State.
16.3 Disposal
The DBFO Co shall take all reasonable precautions to prevent the
removal or damage of any such Fossils and Antiquities. It shall
immediately inform the Department's Nominee of the discovery of any
such Fossils and Antiquities and shall (at the expense of the
Secretary of State) carry out any orders of the Department's Nominee
regarding the examination and disposal of the same.
16.4 Costs
If there will be a delay in or increase in the cost of the execution
of the Works or the conduct of the Operations as a consequence of
compliance with Clause 16.3, the Department's Nominee shall request a
Department's Works Change pursuant to Part 2 of Schedule 12 or, as
appropriate, a Department's Change in Specification pursuant to Part 3
of Schedule 12; provided that if the Department's Nominee does not
make such a request within 28 days after the issuance of any order
under Clause 16.3 then the DBFO Co may give a notice to the
Department's Nominee reflecting the terms of such order and such
notice shall be treated as a notice of a Department's Works Change
pursuant to Part 2 of Schedule 12 or, as appropriate, a Department's
Change in Specification pursuant to Part 3 of Schedule 12, provided
that the DBFO Co shall not be entitled to make any objection in
respect of such notice pursuant to paragraph 2.1 of Part 2 of Schedule
12 or paragraph 2.1.1 of Part 3 of Schedule 12. Save as agreed or
determined in accordance with Clause 10.6 or Part 2 or Part 3 of
Schedule 12, no extensions of time will be granted nor increases in
costs allowed as a consequence of compliance with Clause 16.3.
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17. HANDBACK
17.1 Handback Requirements
Upon the date of expiry of this Agreement in accordance with the
provisions of Clause 38.2 [Expiry of Term] (the "Expiry Date"), each
element of the Project Facilities shall comply with the Handback
Requirements (but without prejudice, in the case of the Maintenance
Depot, to the terms of the Lease).
17.2 Initial Inspection
17.2.1 Not less than 57 months nor more than 63 months prior to the
expected Expiry Date, the DBFO Co and the Department's
Representative shall conduct a joint inspection (the
"Initial Inspection") of the pavement of the Project Road
and all Structures forming part of the Project Road.
17.2.2 Such inspection shall comply with the requirements set out
in paragraph 2 of Part 4 of Schedule 4.
17.3 Renewal Programme
17.3.1 Within 90 days after the completion of the Initial
Inspection, the DBFO Co shall provide to the Department's
Representative a report on the condition of the pavement of
the Project Road and the Structures referred to in Clause
17.2.1 and a notice setting out:
17.3.1.1 the DBFO Co's proposals as to the Maintenance
Works or other works of renewal, reconstruction,
repair or reinstatement (the "Renewal Works")
required to be carried out in respect of the
pavement and such Structures in order to procure
that they will, on the Expiry Date, satisfy the
Handback Requirements;
17.3.1.2 the DBFO Co's proposals as to the programme (the
"Renewal Programme") for the carrying out of the
Renewal Works over the remainder of the Contract
Period; and
17.3.1.3 the DBFO Co's estimate of the cost of carrying out
the Renewal Works (the amount of such cost agreed
or determined in accordance with this Clause 17
being the "Renewal Amount").
17.3.2 The proposals referred to in Clause 17.3.1.1 shall be made,
inter alia:
17.3.2.1 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; and
17.3.2.2 on the assumption that the Project Facilities will
be maintained in accordance with the O&M
Requirements for the remainder of the Contract
Period.
17.3.3 The Department's Representative may, within 90 days after
receipt of the notice from the DBFO Co in accordance with
Clause 17.3.1, 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
Representative shall give details of the grounds for such
objection and shall give the Department's Representative's
proposals in respect of the Renewal Works and Renewal
Programme and its estimate of the Renewal Amount.
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17.3.4 If no agreement is reached between the DBFO Co and the
Department's Representative as to any matter referred to in
the notice given in accordance with Clause 17.3.3 within 60
days, then either the DBFO Co or the Department's
Representative may refer the matter to the Disputes
Resolution Procedure for determination:
17.3.4.1 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 Representative 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 17.3.2);
17.3.4.2 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
17.3.4.3 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.
17.3.5 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.
17.3.6 For the avoidance of doubt, neither the agreement of the
Department's Representative to any Renewal Works, Renewal
Programme or Renewal Amount, nor the participation of the
Department's Representative in any inspection under this
Clause 17, nor the complete or partial carrying out of the
Renewal Works shall relieve or absolve the DBFO Co from:
17.3.6.1 its obligation under Clause 17.1; or
17.3.6.2 any obligation to conduct any other inspection or perform
any other works in accordance with the O&M Requirements.
17.4 Second Inspection
17.4.1 Not less than 15 months nor more than 18 months prior to the
expected Expiry Date, the DBFO Co and the Department's
Representative 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 17.2.1 (whether or not the Renewal
Works in respect of the pavement and such Structures have
been carried out).
17.4.2 Such inspection shall comply with the requirements set out
in paragraph 2 of Part 4 of Schedule 4 as applicable to each
element of the Project Facilities.
17.5 Revised Renewal Programme
17.5.1 Within 60 days after the completion of the Second
Inspection, the DBFO Co shall provide to the Department's
Representative a report on the condition of the Project
Facilities and a notice setting out:
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17.5.1.1 the DBFO Co's proposals as to any revisions or
additions to the Renewal Works (including without
limitation those referred to in Clause 17.5.6)
required in order to procure that all elements of
the Project Facilities will, on the Expiry Date,
satisfy the Handback Requirements;
17.5.1.2 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
17.5.1.3 the DBFO Co's estimate of any changes in the
Renewal Amount as a consequence of such revisions
or additions to the Renewal Works.
17.5.2 The proposals referred to in Clause 17.5.1.1 shall be made,
inter alia, on the basis set out in Clause 17.3.2.
17.5.3 The Department's Representative may, within 28 days after
receipt of the notice from the DBFO Co in accordance with
Clause 17.5.1, 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 Representative shall give details of the
grounds for such objection and shall give the Department's
Representative's proposals in respect of such matters.
17.5.4 If no agreement is reached between the DBFO Co and the
Department's Representative as to any matter referred to in
the notice given in accordance with Clause 17.5.3 within 28
days, then either the DBFO Co or the Department's
Representative may refer the matter to the Disputes
Resolution Procedure for determination:
17.5.4.1 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 Representative 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 17.3.2);
17.5.4.2 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
17.5); and
17.5.4.3 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
17.5).
17.5.5 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
17.5).
17.5.6 The Renewal Works proposed pursuant to Clause 17.5.1.1 shall
include the following:
17.5.6.1 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
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17.5.6.2 the renewal of all lamps on the Project Facilities
within the last 6 months of the Contract Period.
17.6 Handback Inspection
17.6.1 Not later than 28 days after the Expiry Date, the DBFO Co
and the Department's Representative 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
as applicable to each element of the Project Facilities.
17.6.2 Within 90 days after the completion of the Handback
Inspection, the Department's Representative shall either:
17.6.2.1 issue to the DBFO Co a Handback Certificate; or
17.6.2.2 notify the DBFO Co in writing of its decision not
to issue the Handback Certificate and state the
reason for such decision (being a reason within
Clause 17.6.3).
17.6.3 The Department's Representative may only refuse to issue the
Handback Certificate if.
17.6.3.1 the DBFO Co shall have failed to complete all of
the Renewal Works; or
17.6.3.2 the Project Facilities for any other reason do not
comply with the Handback Requirements in all
respects (otherwise than by virtue of an event
occurring after the Expiry Date).
17.6.4 Any notice given by the Department's Representative in
accordance with Clause 17.6.2.2 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
Representative'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.
17.6.5 The DBFO Co may, within 28 days after receipt of a notice
given in accordance with Clause 17.6.2.2, by notice to the
Department's Representative object to any matter set out in
the Department's Representative'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.
17.6.6 If no agreement is reached between the DBFO Co and the
Department's Representative as to any matter referred to in
the notice given in accordance with Clause 17.6.5 within 60
days, then either the DBFO Co or the Department's
Representative may refer the matter to the Disputes
Resolution Procedure for determination, as the case may be:
17.6.6.1 whether the Renewal Works have been completed;
17.6.6.2 whether the Project Facilities comply in all
respects with the Handback Requirements; and
17.6.6.3 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.
17.6.7 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
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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 17.6.6 (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
17.6.
17.7 Retention Account
17.7.1 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 Expiry Date. The Secretary of State may 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 provisions
of this Clause 17. The DBFO Co shall be entitled to grant a
security interest to European Investment Bank and European
Investment Fund in and to the Retention Account on terms
that at all times such security interest:
17.7.1.1 is subject to, and ranks behind, any Encumbrance
(whenever created) in favour of the Secretary of
State over, and any other rights of the Secretary
of State in and to, the Retention Account, all
sums from time to time standing to the credit of
the Retention Account and all accrued interest;
17.7.1.2 is subject to the provisions of this Agreement;
and
17.7.1.3 shall not in any way interfere with, prejudice or
otherwise affect any of the rights and obligations
of the Parties under this Agreement (in
particular, but without limitation, this Clause
17) or in respect of the Retention Account,
and otherwise upon such terms as the Secretary of State
shall approve in writing in advance. The DBFO Co shall
execute such documents and do such things as the Secretary
of State may reasonably require to give effect to the
ranking of any security interest contemplated by this Clause
17.
17.7.2 Subject to Clause 17.7.3, 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
Monthly Traffic Payment or any DBFO Payment (other than any
Aggregate Commuted Sum) 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 17.7.2, be due to the DBFO Co.
17.7.3 If at any time the amount standing to the credit of the
Retention Account (including any accrued interest but less
any bank charges and any tax on interest arising by reason
of the operation of the Retention Account) is equal to the
Retention Sum less the amount of any Advance Release Amount
agreed or determined in accordance with Clause 17.8, then
subject to Clause 17.7.5.1 the Secretary of State shall not
be entitled to withhold any further sums in accordance with
Clause 17.7.2 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.
17.7.4 If, following the Initial Inspection, it is agreed or
determined in accordance with Clause 17.3 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
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credit of the Retention Account (including any accrued
interest but less any bank charges and any tax on interest
arising by reason of the operation of the Retention
Account), but without prejudice to the provisions of Clause
17.7.5.
17.7.5 If, as a result of the Second Inspection:
17.7.5.1 the Renewal Amount is increased, then the
provisions of Clause 17.7.2 shall apply, or shall
again apply, until the amount held in the
Retention Account equals the increased Retention
Sum less the amount of any Advance Release Amount
agreed or determined in accordance with Clause
17.8;
17.7.5.2 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 any tax on interest arising by
reason of the operation of the Retention Account)
exceeds the revised Retention Sum less the amount
of any Advance Release Amount agreed or determined
in accordance with Clause 17.8, 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 17.5, pay the amount of such excess out
of the Retention Account to the DBFO Co.
17.7.6 Within 14 days after the issue of a Handback Certificate in
accordance with Clause 17.6.2.1, 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 any tax on interest arising by
reason of the operation of the Retention Account) to the
DBFO Co.
17.7.7 If the Department's Representative gives a notice in
accordance with Clause 17.6.2.2, 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:
17.7.7.1 the amount standing to the credit of the Retention
Account (including accrued interest), and
17.7.7.2 the amount stated by the Department's
Representative in the notice given in accordance
with Clause 17.6.2.2 as its 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 (less any bank charges and
any tax on interest arising by reason of the operation of
the Retention Account) shall be released to the DBFO Co in
accordance with Clause 17.7.6.
17.7.8 If any sum is retained in the Retention Account in
accordance with Clause 17.7.7, 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
Representative in accordance with Clause 17.6.2.2.
17.7.9 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 any tax on interest arising by reason of the operation
of the Retention Account)
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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 tax on interest
arising by reason of the operation of the Retention Account)
shall be paid by the Secretary of State and the DBFO Co out
of the Retention Account to the DBFO Co.
17.7.10 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 17.7.9 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.
17.7.11 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) 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 tax on interest arising by reason
of the operation of the Retention Account) shall be paid by
the Secretary of State and the DBFO Co out of the Retention
Account to the DBFO Co.
17.7.12 The foregoing provisions of this Clause 17.7 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 17
(other than this Clause 17.7) 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).
17.8 Advance Renewal Works
17.8.1 Provided that the relevant Advance Release Amount (as
determined in accordance with Clause 17.8.4) would, if an
Advance Release Certificate were to be issued in respect
thereof in accordance with Clause 17.8.3, be a positive
amount, the DBFO Co may, on completion of any Renewal Works
(the "Relevant Renewal Works") prior to the Second
Inspection, give notice to the Secretary of State:
17.8.1.1 identifying the Relevant Renewal Works which have
been completed;
17.8.1.2 giving full particulars of the costs of the
Relevant Renewal Works; and
17.8.1.3 specifying the amount which the DBFO Co requires
to be released to it from the Retention Account in
advance of the date of release which would
otherwise be determined in accordance with Clause
17.7.
17.8.2 Not later than 28 days after receipt by the Secretary of
State of a notice under Clause 17.8.1, the DBFO Co and the
Department's Representative shall conduct a joint inspection
of the Relevant Renewal Works which inspection shall comply
with the requirements set out in paragraph 2 of Part 4 of
Schedule 4 as applicable to each element of the Relevant
Renewal Works, provided that, for the avoidance of doubt,
the required Residual Life for each such
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element shall be calculated from expiry of the period of 30
years from the Commencement Date.
17.8.3 Within 60 days after completion of such inspection, the
Department's Representative shall either:
17.8.3.1 issue an Advance Release Certificate in respect of
the Relevant Renewal Works for the Advance Release
Amount (as determined in accordance with Clause
17.8.4); or
17.8.3.2 notify the DBFO Co in writing of its decision not
to issue an Advance Release Certificate in respect
of the Relevant Renewal Works.
17.8.4 The Advance Release Amount shall be an amount equal to the
lesser of:
17.8.4.1 the amount attributed (in determining the Renewal
Amount) to the Relevant Renewal Works; and
17.8.4.2 such amount as, on its release from the Retention
Account, would leave an amount standing to the
credit of the Retention Account equal to the
aggregate amount of the Renewal Amount attributed
(in determining the Renewal Amount) to the Renewal
Works which have not been completed by the DBFO Co
as at the date of such release.
17.8.5 The Department's Representative may refuse to issue an
Advance Release Certificate if:
17.8.5.1 the DBFO Co shall have failed to complete all of
the Relevant Renewal Works; or
17.8.5.2 there shall have occurred and be subsisting an
Event of Default or an event or circumstance which
with the lapse of time, the giving of notice or
the satisfaction of any other condition would
become an Event of Default.
17.8.6 Any notice given by the Department's Representative in
accordance with Clause 17.8.3.2 shall specify which of the
grounds for refusal set out in Clause 17.8.5 is being relied
upon by the Department's Representative. Where the ground
for refusal is that the DBFO Co shall have failed to
complete all of the Relevant Renewal Works in accordance
with the requirements set out in paragraph 2 of Part 4 of
Schedule 4, such notice shall also set out each respect in
which the Relevant Renewal Works have not been completed.
17.8.7 The DBFO Co may:
17.8.7.1 within 28 days after receipt of an Advance Release
Certificate, by notice to the Department's
Representative object to the Department's
Representative's determination of the cost of the
Relevant Renewal Works for the purposes of
calculating the Advance Release Amount; or
17.8.7.2 within 28 days after receipt of a notice given in
accordance with Clause 17.8.3.2, by notice to the
Department's Representative object to any matter
set out in the Department's Representative's
notice,
and, in either case, the notice from the DBFO Co shall give
details of the grounds for objection and shall give the DBFO
Co's proposals in respect of such matters.
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17.8.8 If no agreement is reached between the DBFO Co and the
Department's Representative as to any matter referred to in
a notice given in accordance with Clause 17.8.7 within 60
days after receipt of such notice, then either the DBFO Co
or the Department's Representative may refer the matter to
the Disputes Resolution Procedure.
17.8.9 Within 45 days after the date of an Advance Release
Certificate or, if the DBFO Co shall have given notice in
accordance with Clause 17.8.7.1, within 14 days after the
date on which the costs of the Relevant Renewal Works are
finally determined in accordance with the Disputes
Resolution Procedure, and subject in either case to there
not having occurred and being subsisting an Event of Default
or an event or circumstance which with the lapse of time,
the giving of notice or the satisfaction of any other
condition would become an Event of Default, the Secretary of
State and the DBFO Co shall pay from the Retention Account
the Advance Release Amount to the DBFO Co, provided that
there shall be deducted from such amount and paid to the
Secretary of State the full amount of all reasonable costs
and expenses of the Secretary of State and the Department's
Representative in conducting the inspection under Clause
17.8.2 and making all determinations, assessments and other
decisions for the purposes of this Clause 17.8.
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18. INSURANCE
18.1 Insurance Cover
18.1.1 The DBFO Co shall take out and maintain in force the
insurances specified in Schedule 10 throughout the relevant
stages of the Contract Period as follows:
18.1.1.1 the DBFO Co shall procure that the insurances
identified in paragraph 1 of Schedule 10 are taken
out prior to the commencement of the Works and are
maintained until the issue of the Completion
Certificate; and
18.1.1.2 the DBFO Co shall procure that the insurances
identified in paragraph 2 of Schedule 10 are taken
out in respect of each section of the Existing
Road prior to the commencement of any activities
in respect of the operation and maintenance of the
relevant section of the Existing Road in
accordance with the provisions of Clause 7.3.2 and
in respect of the New Road prior to the issue of
the relevant Permit to Use and are, thereafter
maintained throughout the Contract Period.
18.1.2 Prior to taking out or changing any such insurances, the
DBFO Co shall submit to the Department's Agent (with respect
to the insurances referred to in paragraph 1 of Schedule 10
or the Department's Representative (in respect of the
insurances referred to in paragraph 2 of Schedule 10) in
accordance with the Review Procedure:
18.1.2.1 the identity of the insurer, and
18.1.2.2 the principal terms and conditions of such
insurances or any revision to such terms and
conditions;
and there shall have been no objection in accordance with
the Review Procedure (on the grounds set out in paragraph
3.9 of Part 3 of Schedule 7).
18.1.3 The DBFO Co shall not take any action or fail to take any
reasonable action, or (insofar as it is reasonably within
its power) permit anything to occur in relation to it, which
would entitle any insurer to refuse to pay any claim under
any such insurance policy.
18.2 Copies
The DBFO Co shall furnish copies of all insurance policies to the
Department's Nominee on request. The Department's Nominee shall be
entitled to inspect during ordinary business hours the original
policies of insurance taken out and maintained pursuant to Clause 18.1
which are or should be in the custody of the DBFO Co, together with
evidence that the premiums payable thereunder have been paid and that
the insurances are in full force and effect.
18.3 Rights of Subrogation and Notice of Cancellation
All such policies of insurance shall contain a clause to the effect
that the insurers have agreed to waive all rights of subrogation
against the Secretary of State and his servants and agents and shall
provide for 30 days written notice to be given to the Secretary of
State prior to any cancellation, non-renewal or material modification
of any such policy.
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18.4 Renewal Certificates
Renewal certificates in relation to such insurances shall be obtained
as and when necessary and copies thereof (certified in a manner
acceptable to the Department's Nominee) shall be forwarded to the
Department's Nominee as soon as possible but in any event at least 10
days before the renewal date.
18.5 Secretary of State's Right to Insure
If the DBFO Co fails or refuses to obtain or maintain any insurance
required to be effected by it under the provisions of this Clause 18
or to provide the Department's Nominee with copies of the renewal
certificates in relation thereto (certified in a manner acceptable to
the Department's Nominee) as and when required, the Secretary of State
shall, without prejudice to any of its rights under this Agreement or
otherwise, have the right itself to procure such insurances, in which
event any sums so paid by the Secretary of State in this regard shall
immediately become due and payable to the Secretary of State by the
DBFO Co and the Secretary of State shall be entitled to deduct such
sums from any moneys due or which may become due to the DBFO Co.
18.6 Notification of Claims
The DBFO Co shall give the Department's Nominee notification of any
claim (other than a claim for less than (pound)10,000) with respect to
any of the insurance policies referred to in this Clause 18
accompanied by full details of the incident giving rise to such claim.
18.7 Application of Proceeds
18.7.1 The DBFO Co shall ensure that the insurers of any of the
insurance policies which the DBFO Co is required to take out
and maintain in force pursuant to Clause 18.1.1 pay the
proceeds of:
18.7.1.1 any insurance policy for third party legal
liability or employees' liability:
18.7.1.1.1 directly to the third party or
employee concerned; or
18.7.1.1.2 to the Secretary of State as loss
payee (and the Secretary of State
shall, promptly upon receipt of such
proceeds, pay the same to the relevant
third party or employee concerned);
18.7.1.2 any other policies of such insurances to the
Secretary of State as loss payee except where the
DBFO Co has already restored, replaced or
reinstated the Project Facilities or any other
asset (as the case may be), in which case the
proceeds shall be paid directly to the DBFO Co,
and where the proceeds of such policies of
insurances are paid to the Secretary of State as
loss payee in whole or in part, the Secretary of
State shall pay the amount of such proceeds
received by the Secretary of State to the DBFO Co
promptly upon the DBFO Co's restoring, replacing
or reinstating the Project Facilities or any other
asset (as the case may be) or, as the case may be,
that part of the Project Facilities or any other
such asset in respect of which such proceeds have
been paid to the Secretary of State as loss payee.
18.8 Re-instatement of the Maintenance Depot
The following provisions of this Clause 18.8 shall apply in the event
of termination of the Lease in accordance with sub-clause 3.28(f)
thereof:
18.8.1 the Secretary of State and the DBFO Co shall consult and
shall use their respective reasonable endeavours, for a
period of not less than 3 months, to locate and agree upon a
site owned by
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the Secretary of State, being reasonably proximate to the
Project Road, which would be suitable for the construction
of a maintenance depot and for use by the DBFO Co in the
performance of its obligations under this Agreement;
18.8.2 if the Secretary of State and the DBFO Co shall agree upon
such a site within such 3 month period (or such longer
period as they may agree), then:
18.8.2.1 the Secretary of State shall apply any insurance
proceeds received by him in respect of the
Maintenance Depot in or towards the construction
of a new maintenance depot on such site by the
DBFO Co under Clause 18.8.2.2;
18.8.2.2 the DBFO Co shall construct such new maintenance
depot to such specification as the Secretary of
State shall reasonably require (not being a higher
standard of specification than that of the
Maintenance Depot), obtain at its own cost all
necessary consents in connection with such
construction and fund the costs of such
construction to the extent that they exceed the
amount of such insurance proceeds; and
18.8.2.3 on completion of the construction of such new
maintenance depot, the Secretary of State shall
(subject to first obtaining a court order on
respect thereof as is referred in Clause 7.1.5,
both parties using their reasonable efforts to
obtain such court order) grant to the DBFO Co a
lease of such new maintenance depot on the same
terms, mutatis mutandis, as the Lease (provided
that the term of such new lease shall be
co-terminous with this Agreement (howsoever
terminated));
18.8.3 if the Secretary of State and the DBFO Co shall fail to
agree upon such a site within such 3 month period (or such
longer period as they may agree), then:
18.8.3.1 the proceeds of such insurance shall be payable to
the Secretary of State absolutely; and
18.8.3.2 the Maintenance Depot shall be excluded from the
Handback Requirements,
provided that, for the avoidance of doubt, nothing in this
Clause 18.8 or the Lease shall in any way affect or diminish
the obligations of the DBFO Co under this Agreement in
respect of the operation and maintenance of the Project
Facilities (other than the Maintenance Depot).
18.9 Saving
Neither failure to comply nor full compliance with the insurance
provisions of this Agreement shall limit or relieve the DBFO Co of its
liabilities and obligations under this Agreement and in particular the
DBFO Co's obligation to hold the Secretary of State harmless in
compliance with any indemnity provisions contained in this Agreement.
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19. SECRETARY OF STATE'S OBLIGATIONS
19.1 Connecting Roads
Without prejudice to Clause 35.1.14, the Secretary of State shall
repair and maintain the Connecting Roads throughout the Contract
Period having regard to the classification of each highway in question
(for example (without limitation) as a motorway, trunk road, rural
road, urban road, dual or single carriageway) and the traffic which is
reasonably to be expected to use it and to the standard of maintenance
appropriate for a highway of that classification and used by such
traffic.
19.2 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) which he is not able to have released using his
reasonable endeavours (without the payment of any sum).
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PART III
RELATIONSHIPS AND MONITORING
20. REPRESENTATIVES
20.1 The Department's Agent and Department's Representative
20.1.1 The Secretary of State has appointed the Department's Agent
to act as his agent in relation to the design, construction,
completion, commissioning and testing of the Works and,
prior to the issue of the Completion Certificate, the
maintenance of the New Road (excluding any Upgraded
Sections). The Department's Agent will exercise the
functions set out in this Agreement (a summary of which is
set out in Part 1 of Schedule 7) and such other functions in
respect of this Agreement as the Secretary of State may
notify to the DBFO Co from time to time (but, for the
avoidance of doubt, such right of notification may not
increase the rights the Secretary of State has against the
DBFO Co under this Agreement).
20.1.2 The Secretary of State has appointed the Department's
Representative to act as his agent in connection with all
Operations other than those referred to in Clause 20.1.1.
The Department's Representative will exercise the functions
set out in this Agreement (a summary of which is set out in
Part 2 of Schedule 7) and such other functions in respect of
this Agreement as the Secretary of State may notify to the
DBFO Co from time to time (but, for the avoidance of doubt,
such right of notification may not increase the rights the
Secretary of State has against the DBFO Co under this
Agreement).
20.1.3 The functions of the Department's Agent and the Department's
Representative shall be separate and apart and neither shall
have the power to override the other. In the event of any
conflict between the instructions or actions of the
Department's Agent and the Department's Representative or of
any confusion as to their respective roles, the matter shall
be referred to the Secretary of State.
20.1.4 During any period when there is no Department's Agent or
Department's Representative, the Secretary of State shall
carry out the functions which would otherwise be performed
by the Department's Agent or Department's Representative, as
the case may be.
20.1.5 Except as expressly stated in this Agreement, neither the
Department's Agent nor the Department's Representative shall
have any authority to relieve the DBFO Co of any of its
obligations under this Agreement.
20.1.6 Except as notified by the Secretary of State to the DBFO Co
in writing, the DBFO Co shall be entitled to treat any act
of the Department's Agent or the Department's Representative
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.
20.2 The DBFO Co's Representative
20.2.1 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.
20.2.2 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, the Department's Agent
and the Department's Representative 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
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Co, and the Secretary of State, the Department's Agent and
the Department's Representative shall not be required to
determine whether any express authority has in fact been
given.
20.3 Change of Representatives
20.3.1 The Secretary of State may at any time and from time to time
by notice to the DBFO Co terminate the appointment of the
Department's Agent or Department's Representative or appoint
a substitute Department's Agent or Department's
Representative. 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.
20.3.2 Save in the case of death, serious illness or termination of
employment (for whatever reason and including retirement),
the appointment of the DBFO Co's Representative shall not be
terminated without the prior approval of the Secretary of
State. Immediately upon the DBFO Co's Representative ceasing
to act in the case of death or serious illness and prior to
termination of the appointment in all other cases, 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, such approval not to be
unreasonably withheld or delayed.
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21. QUALITY ASSURANCE
21.1 Quality Management Systems and Plans
21.1.1 The DBFO Co shall procure that all aspects of the Operations
are the subject of quality management systems which comply
with the provisions of this Clause 21 (the "Quality
Management Systems").
21.1.2 The Quality Management Systems shall comply with:
21.1.2.1 BS EN ISO 9001 or BS EN ISO 9002 as appropriate;
21.1.2.2 the Technical Requirements; and
21.1.2.3 Good Industry Practice;
and shall be reflected in appropriate Quality Plans which
comply with the requirements set out in Part 1 of Schedule
5.
21.1.3 Without limitation to the generality of Clause 21.1.2, there
shall be:
21.1.3.1 a DBFO Co's Quality Plan, which shall meet the
requirement set out in:
21.1.3.1.1 Annex 1 to Part 1 of Schedule 5 (the
DBFO Co's Quality Plan, to the extent
meeting such requirements, being
referred to as the "DBFO Co's Quality
Plan for the Management of
Construction");
21.1.3.1.2 Annex 5 to Part 1 of Schedule 5 (the
DBFO Co's Quality Plan, to the extent
meeting such requirements, being
referred to as the "DBFO Co's Quality
Plan for the Management of O&M"); and
21.1.3.1.3 Annex 6 to Part 1 of Schedule 5 (the
DBFO Co's Quality Plan, to the extent
meeting such requirements, being
referred to as the "DBFO Co's Quality
Plan for O&M");
21.1.3.2 a Designer's Quality Plan, which shall meet the
requirements set out in:
21.1.3.2.1 Annex 2 to Part 1 of Schedule 5 (the
Designer's Quality Plan, to the extent
meeting such requirements, being
referred to as the "Designer's Quality
Plan for Design"); and
21.1.3.2.2 Annex 3 to Part 1 of Schedule 5 (the
Designer's Quality Plan, to the extent
meeting such requirements, being
referred to as the "Designer's Quality
Plan for Examination of the Works");
and
21.1.3.3 a Contractor's Quality Plan, which shall meet the
requirements set out in Annex 4 to Part 1 of
Schedule 5 (the "Contractor's Quality Plan")
21.1.4 The DBFO Co shall not commence or permit the commencement of
any aspect of the Operations before those parts of the
Quality Plans which concern such aspect of the Operations
have been submitted to the Department's Nominee and there
has been no objection thereto in accordance with the Review
Procedure (on the grounds set out in paragraph 3.10 of Part
3 of Schedule 7).
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21.1.5 It shall not be necessary to submit to the Review Procedure
in accordance with the provisions of Clause 21.1.4 the
Quality Plans (or parts thereof) which have been agreed at
the date of execution of this Agreement, which are set out
in Part 2 of Schedule 5.
21.1.6 The DBFO Co shall comply with the DBFO Co's Quality Plan and
shall procure that:
21.1.6.1 the Designer complies with the Designer's Quality
Plan; and
21.1.6.2 the Contractor complies with the Contractor's
Quality Plan.
21.1.7 Where any aspect of the Operations is performed by more than
one contractor or sub-contractor, then the provisions of
this Clause 21 shall apply in respect of each of such
contractors or sub-contractors, and references in this
Clause 21 to the DBFO Co, the Designer and the Contractor
shall be construed accordingly.
21.1.8 The DBFO Co shall from time to time submit to the
Department's Nominee in accordance with the Review Procedure
any changes to any of the Quality Plans required for such
Quality Plan to continue to reflect Quality Management
Systems which comply with the requirements set out in Clause
21.1.2. The Department's Nominee may object to any such
proposed change only on the grounds set out in paragraph
3.10 of Part 3 of Schedule 7.
21.1.9 If the DBFO Co fails to propose any change required pursuant
to Clause 21.1.8, 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.
21.1.10 If there is no objection under the Review Procedure to a
part of a Quality Plan referred to in Clause 21.1.4 or a
change proposed pursuant to Clause 21.1.8 or Clause 21.1.9,
the Quality Plan shall be amended to incorporate such part
or change.
21.2 Quality Manuals and Procedures
If any Quality Plan refers to, relies on or incorporates any quality
manual or procedure, then such quality manual or procedure or the
relevant parts thereof shall be submitted to the Department's Nominee
at the time that the relevant Quality Plan or part of or change to a
Quality Plan is submitted in accordance with the Review Procedure, and
the contents of such quality manual or procedure shall be taken into
account in the consideration of the relevant Quality Plan or part of
or change to a Quality Plan in accordance with the Review Procedure.
The Department's Nominee may require the amendment of any such quality
manual or procedure to the extent necessary to enable the relevant
Quality Plan to satisfy the requirements of Clause 21.1.2.
21.3 Additional Information
Notwithstanding any other provision of this Clause 21, 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 21 and the provisions of Part 1 of Schedule 5.
21.4 Testing
All on-site and off site testing shall be carried out by laboratories
accredited by the National Measurement Accreditation Service for that
test or by laboratories accredited to an equivalent standard, where
this is required by Table NG 1/1 in the Notes for Guidance.
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21.5 Project Quality Director
The DBFO Co shall appoint as soon as reasonably practicable a Project
Quality Director, who shall be independent of the project management
team (but, for the avoidance of doubt, need not be a director of the
DBFO Co). The identity of the Project Quality Director (and any
replacement) and the terms and conditions of his engagement shall be
subject to the approval of the Secretary of State (such approval not
to be unreasonably withheld or delayed). Without limitation to the
foregoing, the terms and conditions of engagement of the Project
Quality Director shall require him to:
21.5.1 ensure the effective operation of the Quality Management
Systems;
21.5.2 audit the Quality Management Systems at regular intervals
and report the findings of such audit to the Department's
Nominee;
21.5.3 review all Quality Management Systems at intervals agreed
with the Department's Nominee to ensure their continued
suitability and effectiveness; and
21.5.4 liaise with the Department's Nominee on all matters relating
to quality management.
21.5 Quality Monitoring
Without limitation to Clause 24 [Monitoring of Performance], the
Department's Nominee may carry out audits of the DBFO Co's Quality
Management Systems (including without limitation all Quality Plans and
any Quality Manuals) at approximate intervals of 3 months and may
carry out other periodic monitoring, spot checks and auditing of the
Quality Management Systems.
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22. REPORTS AND INFORMATION
22.1 Required Reports
The DBFO Co shall submit to the Department's Nominee the reports
specified in Part 2 of Schedule 14, in such numbers as provided
therein.
22.2 Form
The form of such Reports shall be agreed with the Department's Nominee,
such agreement not to be unreasonably withheld.
22.3 Further Information
The DBFO Co shall at any time and from time to time at its own cost
provide to the Department's Agent or the Department's Representative
one copy of such information with respect to the Project as the
Department's Agent or the Department's Representative may reasonably
require.
22.4 Objections to Reports
22.4.1 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.
22.4.2 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.
22.5 Revisions to Reports
If either:
22.5.1 the resolution (whether by agreement or determination under
the Disputes Resolution Procedure) of any objection made
pursuant to Clause 22.4.1; or
22.5.2 the correction of any calculation pursuant to Clause 28.7,
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.
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23. RECORDS
23.1 Required Records
23.1.1 The DBFO Co shall maintain and update those records relating
to the Project set out in Part 1 of Schedule 14.
23.1.2 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
in respect of the Project Facilities and shall be required
to deliver any such records (or copies thereof) to the
extent such records are required for the conduct of the
Operations. 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 records referred to in Clause 23.1.1.
23.2 Audit
The records referred to in Clause 23.1 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,
the Department's Agent and the Department's Representative at all
reasonable times.
23.3 Copies
The Secretary of State, the Department's Agent and the Department's
Representative shall be entitled to take copies of all such records at
the DBFO Co's cost and for that purpose to use such copying facilities
as are maintained at the place where the records are kept.
23.4 Retention of Records
23.4.1 All records referred to in Clause 23.1 shall be retained for
no less than the period specified in respect of such records
in Part 1 of Schedule 14 or, if no such period is specified,
a period of 7 years after the end of the Contract Year to
which such records relate.
23.4.2 Where the period for the retention of any records (as set
out against the relevant class of records in Part 1 of
Schedule 14) 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.
23.4.3 Upon the termination for whatever reason of this Agreement,
the DBFO Co shall as soon as practicable and 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 23.1
which were in existence at the Termination Date (or, where
those records are required by statute 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
23.4.3, subject to reasonable notice.
23.5 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
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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, and its or their sub-contractors to implement and adhere to
such agreed procedure.
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24. MONITORING OF PERFORMANCE
24.1 Remedial Works
If at any time the DBFO Co has failed to perform any of its
obligations under this Agreement and such failure is capable of
remedy, then the Department's Nominee may serve a 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 24.1.
24.1A Shadow Penalty Points
24.1A.1 If at any time circumstances exist in which, but for the
giving of the Penalty Points Commencement Notice (as defined
in Clause 24.1A.3), the Department's Nominee would have been
entitled to award any Penalty Points to the DBFO Co in
accordance with the provisions of Clause 24.2, the
Department's Nominee may serve a notice (a "Shadow Penalty
Point Notice") on the DBFO Co.
24.1A.2 A Shadow Penalty Point Notice shall specify:
24.1A.2.1 the reasons for the serving of such Notice; and
24.1A.2.2 the number of Penalty Points ("Shadow Penalty
Points") which, had the Penalty Point Commencement
Notice been given prior to the date of the
relevant Shadow Penalty Point Notice, would have
been awarded in respect of the matters referred to
in the reasons given in accordance with Clause
24.1A.2.1.
24.1A.3 If at any time the DBFO Co has been awarded a total of 25 or
more Shadow Penalty Points in any 1 year period, the
Secretary of State may serve on the DBFO Co a notice (the
"Penalty Points Commencement Notice") bringing into effect
the provisions of Clause 24.2, such notice to be signed on
behalf of the Secretary of State by the Project Director of
the Project or any more senior official of the Department.
24.2 Penalty Points
24.2.1 If at any time following the date of the Penalty Points
Commencement Notice:
24.2.1.1 any Report indicates or the Department's Nominee
otherwise becomes aware that the DBFO Co has
failed to perform any of its obligations under
this Agreement; or
24.2.1.2 the Department's Nominee serves a notice under
Clause 24.1 and the DBFO Co fails to remedy the
failure within the Remedial Period,
then (subject to Clause 24.2.5 and Clause 24.2.6) 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, provided that, in the case of any Penalty
Points awarded in respect of a failure to perform identified
under Clause 24.2.1.1, the Department's Nominee shall, in
the case of a failure which is capable of remedy, at the
same time serve on the DBFO Co a notice under Clause 24.1;
if the DBFO Co remedies the relevant failure within the
relevant Remedial Period, the number of Penalty Points in
respect thereof shall be reduced by 50 per cent.
24.2.2 The Parties acknowledge that Schedule 18 provides a list of
examples of matters which may attract Penalty Points (or
Shadow Penalty Points) but is only by way of illustration of
the matters for which Penalty Points (or Shadow Penalty
Points) may be awarded and the severity
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attributed to such defaults and in no way restricts the
Department's Nominee's right to award Penalty Points (or
Shadow Penalty Points) for other failures by the DBFO Co to
perform its obligations under this Agreement or to enforce
other remedies in respect of such breaches of this
Agreement.
24.2.3 If, within 14 days after receipt of a Shadow Penalty Points
Notice or a notice pursuant to Clause 24.2.1, the DBFO Co
demonstrates to the reasonable satisfaction of the
Department's Nominee that the failure in respect of which
the relevant Shadow Penalty Points or Penalty Points were
awarded occurred solely as a result of an event beyond the
reasonable control of the DBFO Co (or its contractors,
subcontractors, servants or agents), having regard to the
nature of the obligation which DBFO Co failed to perform and
such steps as the DBFO Co took or could reasonably be
expected to have taken in order to mitigate the effects of
such failure, then the award of such Shadow Penalty Points
or Penalty Points shall be rescinded.
24.2.4 The DBFO Co may within 28 days of receipt of any Shadow
Penalty Point Notice or any notice pursuant to Clause 24.2.1
object to the award of any such Shadow Penalty Points or
Penalty Points or, where Shadow Penalty Points or Penalty
Points have been awarded in respect of a matter which is not
set out in Schedule 18, to the number of such Shadow Penalty
Points or Penalty Points. If the Department's Nominee and
the DBFO Co are unable to reach agreement on any such matter
within 14 days, either may refer the Dispute for resolution
under the Disputes Resolution Procedure. In respect of any
Dispute as to the number of Shadow Penalty Points or Penalty
Points to be awarded pursuant to Clause 24.2.2, the issue
for decision shall be how many Shadow Penalty Points or
Penalty Points should be awarded in comparison with the
number of Shadow Penalty Points or Penalty Points set out in
Schedule 18 for defaults of equivalent severity.
24.2.5 If the DBFO Co has been awarded a total of 50 Penalty Points
in any 12 month period, then (subject to Clause 24.2.6) any
further Penalty Points may only be validly awarded if the
notice under Clause 24.2.1 is countersigned by the Project
Director of the Project (or any more senior official of the
Department) on behalf of the Secretary of State.
24.2.6 If the DBFO Co has been awarded a total of 75 Penalty Points
in any 12 month period, any further Penalty Points may only
be validly awarded if the notice under Clause 24.2.1 is
countersigned by the Director of the Northern Network
Management Division of the Highways Agency (or any successor
office or body) or any more senior official of the
Department, and in such event the countersignature of any
such notice by the Project Director of the Project shall
cease to be required.
24.2.7 If the DBFO Co shall effect any Lane Closure in breach of
Clause 13.3.9 then:
24.2.7.1 the Penalty Points Commencement Notice shall be
deemed to have been given for purposes of this
Agreement with effect from the day preceding the
first day of any such Lane Closure; and
24.2.7.2 without limitation to Clause 24.2.7.1, the
Department's Agent shall be entitled to award
Penalty Points in respect of such Lane Closure in
accordance with Clause 24.2.1 (and not Shadow
Penalty Points in accordance with Clause 24.1A.1)
and the proviso to Clause 24.2.1 shall not apply
in respect of such Lane Closure.
24.2.8 Notwithstanding anything else in this Clause 24.2 (but
without prejudice to Clause 24.2.1.2), Shadow Penalty Points
and Penalty Points shall not be awarded more than once in
respect of a particular failure to perform by the DBFO Co or
under more than one category in Schedule 18 in respect of
the same failure to perform by the DBFO Co, provided that
where more than one such category is relevant to a
particular failure to perform the number of Shadow Penalty
Points or Penalty Points which may be awarded is the highest
number applicable to any of such categories in Schedule 18.
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24.3 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 300 or more Penalty Points (the "Qualifying
Number") 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. In determining whether or not the Qualifying Number of
Penalty Points has been incurred in any relevant period, there shall
be excluded any Penalty Points which have already been comprised in a
Qualifying Number of Penalty Points in respect of which a Warning
Notice has already been issued under this Clause 24.3.
24.4 Increased Monitoring
In the event of the DBFO Co either:
24.4.1 being awarded a total of 50 or more Penalty Points in any 1
year period; or
24.4.2 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).
24.5 Step-In Rights
24.5.1 Without prejudice to Clause 24.5.2, if at any time the
Department's Nominee serves a notice under Clause 24.1 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
24.5.3 and 24.5.4 shall apply.
24.5.2 Without prejudice to any other right or remedy of the
Secretary of State:
24.5.2.1 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
24.5.2.2 in the event of an emergency; or
24.5.2.3 where it appears to the Secretary of State
necessary or expedient in the interests of road
safety,
the Secretary of State may give notice requiring the DBFO Co
forthwith to take such steps as he reasonably 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 reasonably think
necessary and within such time as the Secretary of State
shall reasonably
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think fit, then the Secretary of State may take such steps
himself or engage others to take such steps, and the
provisions of Clauses 24.5.3 and 24.5.4 shall apply.
24.5.3 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 24.5.1) or the Secretary of State was not reasonable
in requiring the DBFO Co to take such steps as are referred
to in Clause 24.5.2 or, in the case of Clause 24.5.2.1, that
no such breach had occurred (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 Part 5 of Schedule 12 shall
apply.
24.5.4 Except in the circumstances referred to in Clause 24.5.3,
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 24.5.1 or Clause
24.5.2 (including, without limitation, the relevant
administrative expenses of the Secretary of State, including
an appropriate sum in respect of general staff costs and
overheads).
24.5.5 Where the Secretary of State has exercised his rights under
Clause 24.5.1 or Clause 24.5.2 to take any steps in respect
of any obligation of the DBFO Co of a continuing nature,
then the DBFO Co shall recommence the performance of such
obligation (and the Secretary of State shall cease the
taking of such steps) upon the later to occur of:
24.5.5.1 the date on which the DBFO Co proves to the
reasonable satisfaction of the Secretary of State
that it is capable of performing and will perform
such obligation in accordance with the terms of
this Agreement; and
24.5.5.2 the expiry of any agreement entered into by the
Secretary of State with any third party for the
performance of such obligation.
24.6 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.
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25. STATUTORY POWERS
25.1 Application
Whenever the exercise by the Secretary of State of any statutory power
is necessary to enable the DBFO Co to perform any obligation under
this Agreement, the provisions of this Clause 25 shall apply.
25.2 Procedure
25.2.1 If the DBFO Co believes that the exercise by the Secretary
of State of any statutory power is necessary (or desirable)
to enable the DBFO Co to perform (or to perform more
expediently) any obligation under this Agreement, the DBFO
Co shall give notice to that effect to the Secretary of
State.
25.2.2 Any notice given by the DBFO Co in accordance with Clause
25.2.1 shall:
25.2.2.1 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;
25.2.2.2 indicate the time by which the requested action is
required; and
25.2.2.3 set out any recommendation by the DBFO Co in
respect of the requested action.
25.2.3 Within 21 days after receipt of a notice given in accordance
with Clause 25.2.1, 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.
25.2.4 The Secretary of State shall respond to the merits of the
request contained in the notice given in accordance with
Clause 25.2.1 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.
25.3 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 25.2.1. 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 in good faith, inter alia, to the matters set out
in Clause 25.4. The decision of the Secretary of State on the merits
of the request shall not be subject to review under the Disputes
Resolution Procedure.
25.4 Relevant Considerations
The considerations referred to in Clause 25.3 are the following:
25.4.1 whether the Secretary of State has the statutory power to
take the action requested;
25.4.2 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;
25.4.3 the effect the requested action would have on the interests
of any third parties;
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25.4.4 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
25.4.5 whether the action requested would have any implications for
safety, either of Users or of any other third parties.
25.5 Refusal of Request
25.5.1 This Clause 25.5 shall apply only in relation to a notice
pursuant to Clause 25.2.1 requesting the exercise by the
Secretary of State of a statutory power which is necessary
(and not merely desirable) to enable the DBFO Co to perform
(and not merely to perform more expediently or at a lower
cost) any obligation under this Agreement (a "Relevant
Notice").
25.5.2 Subject to Clause 25.5.3, if, in the exercise of his
discretion, the Secretary of State refuses to take the
action requested in a Relevant Notice, 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
25.2.1.
25.5.3 The DBFO Co shall be relieved of its liability in accordance
with Clause 25.5.2 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.
25.5.4 If the failure to take any action requested in a Relevant
Notice renders impossible (and not merely more expensive)
the DBFO Co's performance of this Agreement or has a
fundamental effect on the rights or obligations of the DBFO
Co under this Agreement, then the Parties shall negotiate
for a period of not less than 90 days in good faith in an
attempt to agree an alternative means of performance which
does not require the exercise of any statutory power and
which:
25.5.4.1 still provides substantially the same level of
service to the Secretary of State; and
25.5.4.2 does not involve the DBFO Co in any material
increase in cost or reduction of return.
If the Parties are unable to reach agreement within such
period of 90 days, the provisions of Clause 38.4 shall
apply.
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26. STATUTORY UNDERTAKERS
26.1 Definitions
For the purpose of this Clause 26:
26.1.1 "Apparatus" means all apparatus (including apparatus as
defined in 1991 Act) located in, on, under, over, across,
along or adjacent to the Site or Adjacent Areas;
26.1.2 "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 26.4.1 or 26.4.5, as the case
may be;
26.1.3 "Authorisation Period" means either the Contract Period or
the period commencing on the Commencement Date and expiring
10 years therefrom, whichever is shorter;
26.1.4 "Bridge Authority" has the meaning given in Section
147(1)(b) of the 1991 Act;
26.1.5 "Codes of Practice" means the codes of practice issued from
time to time pursuant to Part III of the 1991 Act;
26.1.6 "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;
26.1.7 "Highway Authority" has the same meaning as ascribed in the
Highways Act;
26.1.8 "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 90(2) of the 1991 Act;
26.1.9 "the Regulations" means regulations issued pursuant to Part
III of the 1991 Act;
26.1.10 "the Renewed Authorisation Period" has the meaning given in
Clause 26.4.5.2;
26.1.11 "Street Authority" has the meaning given in Section 49(1) of
the 1991 Act;
26.1.12 "Street Works Licences" has the meaning given in Section
50(1) of the 1991 Act;
26.1.13 "Sample Inspections" has the meaning given to it in the Code
of Practice entitled Code of Practice for Inspections;
26.1.14 "Traffic Authority" has the meaning given in Section 121A of
the Road Traffic Regulation Act 1984;
26.1.15 "Works for Road Purposes" has the meaning given in Section
86(2) of the 1991 Act;
26.1.16 "1991 Act" means the New Roads and Street Works Act 1991;
26.1.17 "1995 Order" means the Contracting Out (Highway Functions)
Order 1995 (SI 1995/1986); and
26.1.18 "affected" or "affecting" shall be regarded as including the
meaning given to "affected" in Section 105(4) of the 1991
Act.
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26.2 Primary Duty of Co-ordination
26.2.1 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:
26.2.1.1 in the interests of safety;
26.2.1.2 so as to minimise the inconvenience to persons
using the Project Facilities having regard in
particular to the needs of people with
disabilities;
26.2.1.3 so as to protect the structure of the Project
Facilities and the integrity of Apparatus;
and in accordance with all relevant Codes of Practice.
26.2.2 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.
26.3 General
26.3.1 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.
26.3.2 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 26.
26.3.3 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 and shall indemnify
the Secretary of State against all Losses or Claims of any
person arising out of or in connection with Diversionary
Works.
26.3.4 Subject to Clauses 26.3.5 and 26.6.2 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.
26.3.5 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
Contract Period and the DBFO Co shall pay to the Secretary
of State any contribution received if the contribution
relates to costs incurred or likely to be incurred outside
the Contract Period.
26.3.6 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.
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26.3.7 The DBFO Co shall provide to such person as may be nominated
from time to time by the Secretary of State 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 which is eligible for registration and shall make such
payment or payments to such party as the Secretary of State
may require pursuant to Section 53(5) of the 1991 Act. 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.
26.3.8 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 on the
following terms:
26.3.8.1 it shall be non-assignable;
26.3.8.2 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 Facilities;
26.3.8.3 it shall only be exercisable after consultation
with any affected Relevant Authority or person
owning Apparatus.
26.3.9 [Clause not used].
26.3.10 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.
26.3.11 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.
26.3.12 The DBFO Co and (if so requested by the DBFO Co by notice in
writing, but at the DBFO Co's cost) the Secretary of State
shall each take such actions as are (in the case of the DBFO
Co) appropriate or (in the case of the Secretary of State)
reasonably requested by the DBFO Co to inform all interested
parties of the DBFO Co's role on behalf of the Secretary of
State pursuant to Clauses 26.4 and 26.5.
26.4 Contracting Out of Functions
26.4.1 Subject to the provisions of this Clause 26.4 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.
26.4.2 From the Commencement Date and for so long as any
authorisation made under this Clause 26.4. is effective, the
DBFO Co shall exercise properly and fully in respect of the
Project Facilities each of the Authorised Functions.
26.4.3 The authorisation made under this Clause 26.4 in respect of
an Authorised Function is made on the following terms:
26.4.3.1 it shall be non assignable;
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26.4.3.2 the DBFO Co shall not delegate any such Authorised
Function.
26.4.4 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.
26.4.5 If, following a request under Clause 26.4.4, 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:
26.4.5.1 the function of the Secretary of State which the
DBFO Co is authorised to exercise in respect of
the Project Facilities; and
26.4.5.2 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").
26.4.6 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 25.2, 25.3 and
25.4 (but for the avoidance-of doubt not Clause 25.5) shall
apply mutatis mutandis to any such request.
26.4.7 In exercising the 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:
26.4.7.1 obey all relevant legal and procedural
requirements;
26.4.7.2 not take any decisions or actions which may be
considered perverse and liable to be quashed in a
court of law; and
26.4.7.3 obey the rules of natural justice.
26.4.8 For so long as any authorisation under this Clause 26.4 is
effective the DBFO Co shall provide to the Department's
Nominee five copies of a formal monthly report on all
actions taken by the DBFO Co pursuant to the Authorised
Functions, including without limitation details of:
26.4.8.1 all notices given and received;
26.4.8.2 all directions and consents given to Statutory
Undertakers;
26.4.8.3 all agreements, commitments or compromises reached
with Statutory Undertakers with regard to
Diversionary Works; and
26.4.8.4 any arbitration proceedings commenced or proposed.
26.4.9 Without prejudice to the generality of Clause 26.4.8, 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.
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26.4.10 The DBFO Co shall indemnify the Secretary of State against
all Losses or Claims of any person arising out of or in
connection with the DBFO Co's exercise, purported exercise
or failure to exercise any of the Authorised Functions.
26.4.11 If the DBFO Co fails to exercise any Authorised Function in
the manner set out in Clause 26.4.7 then the Secretary of
State may withdraw or suspend the authorisation in respect
of such Authorised Function and the DBFO Co shall indemnify
the Secretary of State against all costs incurred by him in
performing or engaging others to perform such Authorised
Function. Such suspension or withdrawal shall not be treated
by the DBFO Co as a repudiation by the Secretary of State.
26.4.12 If an authorisation under this Clause 26.4 is revoked by the
Secretary of State, other than in accordance with Clause
26.4.11, then for the purposes of Section 73 of the
Deregulation and Contracting Out Act 1994 "relevant
contract" shall mean this Clause 26.4 and no other provision
of this Agreement.
26.5 Management of Operations affecting Apparatus
26.5.1 If at any time an authorisation under Clause 26.4 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 26.5.3, the DBFO Co
shall instead perform those services set out in Part 2 of
Schedule 19 (if any) which relate to the same function of
the Secretary of State as the Authorised Function which has
been revoked or has expired.
26.5.2 In addition to its obligations under Clause 26.4 or Clause
26.5.1 as the case may be but subject to Clause 26.5.3, the
DBFO Co shall throughout the Contract Period perform the
services set out in Part 3 of Schedule 19.
26.5.3 In carrying out its services pursuant to this Clause 26.5,
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.
26.5.4 For the purposes of Clause 26.5.3, 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, commitment, compromise or works.
26.6 The Secretary of State's Responsibility
26.6.1 Without prejudice to the DBFO Co's obligations pursuant to
Clause 26.3.12 the Secretary of State shall:
26.6.1.1 from time to time, at the request of DBFO Co,
notify Statutory Undertakers that, subject to the
terms and conditions set out in this Clause 26,
the DBFO Co will be exercising the Authorised
Functions or will be performing the services set
out in Clause 26.5 (as the case may be);
26.6.1.2 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.
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26.6.2 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 in
Specification and any sums received by the Secretary of
State from any Statutory Undertaker shall not be subject to
Clause 26.3.4.
26.7 Yorkshire Electricity
The DBFO Co acknowledges that the Secretary of State has settled two
invoices from Yorkshire Electricity in the amount of (pound)282,808.33
and (pound)664,599.58 in respect of the diversion of the 132 Kv
overhead lines at Rothwell Haigh and Lofthouse which, if such invoices
had been issued after the date of this Agreement, would have been the
responsibility of the DBFO Co. The DBFO Co shall, without further
demand by the Secretary of State, repay (or procure the repayment) to
the Secretary of State on or before 14th May 1996 the sum of
(pound)947,407.91 and if it fails to do so such sum shall bear
interest in accordance with Clause 30.7.
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26A. OTHER FUNCTIONS OF THE SECRETARY OF STATE
26A.1 Definitions
For the purpose of this Clause 26A:
26A.1.1 "Highway Authority" has the same meaning as ascribed in the
Highways Act;
26A.1.2 "Statutory Provisions" means the provisions of the statutes
and regulations set out in Schedule 21 and (subject to
Clause 26A.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 26A.3.7;
26A.1.3 "Third Party" means any third party (but excluding any
Statutory Undertaker to the extent that the provisions of
Clause 26 apply in relation to such Statutory Undertaker in
any particular case);
26A.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 26A.3. 1, Clause 26A.3.5 or (subject to Clause
26A.3.7.3) Clause 26A.3.7;
26A.1.5 "Third Party Authorisation Period" means, in the case of an
authorisation pursuant to Clause 26A.3.1, either the
Contract Period or the period commencing on the Commencement
Date and expiring 10 years therefrom, whichever is shorter
or, in the case of an authorisation pursuant to Clause
26A.3.7.3, the period specified in the notice given by the
Secretary of State pursuant to Clause 26A.3.7.2.2;
26A.1.6 "Third Party Renewed Authorisation Period" has the meaning
given in Clause 26A.3.5.2;
26A.1.7 "1995 Order" means the Contracting Out (Highway Functions)
Order 1995 (SI 1995/1986).
26A.2 General
26A.2.1 Without limitation to Clause 3.4, 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.
26A.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 26A.3 and 26A.4.
26A.3 Contracting Out of Functions
26A.3.1 Subject to the provisions of this Clause 26A.3 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 21.
26A.3.2 From the Commencement Date and for so long as any
authorisation made under this Clause 26A.3 is effective, the
DBFO Co shall exercise properly and fully in respect of the
Project Facilities each of the Third Party Authorised
Functions.
26A.3.3 The authorisation made under this Clause 26A.3 in respect of
a Third Party Authorised Function is made on the following
terms:
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26A.4.3.1 it shall be non assignable;
26A.4.3.2 the DBFO Co shall not delegate any such Third
Party Authorised Function.
26A.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.
26A.3.5 If, following a request under Clause 26A.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:
26A.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
26A.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").
26A.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 25.2, 25.3 and
25.4 (but for the avoidance of doubt not Clause 25.5) shall
apply mutatis mutandis to any such request.
26A.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 26A.3.1 and
Clause 26.4.1) and the following provisions shall apply to
any such request by the DBFO Co:
26A.3.7.1 the provisions of Clauses 25.2, 25.3 and 25.4 (but
for the avoidance of doubt not Clause 25.5) shall
apply mutatis mutandis in relation to any such
request pursuant to this Clause 26A.3.7;
26A.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:
26A.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;
26A.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
26A.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
26A applicable to Third Party Authorised Functions
(other than this Clause 26A.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
26A.3.7 in whole or in part shall not be subject to review
under the Disputes Resolution Procedure.
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26A.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:
26A.3.8.1 obey all relevant legal and procedural
requirements;
26A.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
26A.3.8.3 obey the rules of natural justice.
26A.3.9 For so long as any authorisation under this Clause 26A.3 is
effective the DBFO Co shall provide to the Department's
Nominee five copies of a formal monthly report on 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:
26A.3.9.1 all notices given and received;
26A.3.9.2 all directions, permissions and consents given to
Third Parties in the exercise of any Third Party
Authorised Functions;
26A.3.9.3 all agreements, commitments or compromises reached
with Third Parties in the exercise of any Third
Party Authorised Functions; and
26A.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.
26A.3.10 Without prejudice to the generality of Clause 26A.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.
26A.3.11 The DBFO Co shall indemnify the Secretary of State against
all Losses or Claims of any person arising out of or in
connection with the DBFO Co's exercise, purported exercise
or failure to exercise any of the Third Party Authorised
Functions.
26A.3.12 If the DBFO Co fails to exercise any Third Party Authorised
Function in the manner referred to in Clause 26A.3.8, then
the Secretary of State may withdraw or suspend the
authorisation in respect of such Third Party Authorised
Function and the DBFO Co shall indemnify the Secretary of
State against all costs reasonably and properly incurred by
him in performing or engaging others to perform such
Authorised Function. Such suspension or withdrawal shall not
be treated by the DBFO Co as a repudiation by the Secretary
of State.
26A.3.13 If an authorisation under this Clause 26A.3 is revoked by
the Secretary of State, other than in accordance with Clause
26A.3.12, then for the purposes of Section 73 of the
Deregulation and Contracting Out Act 1994 "relevant
contract" shall mean this Clause 26A.3 and no other
provision of this Agreement.
26A.4 Management of Operations
26A.4.1 If at any time and from time to time:
26A.4.1.1 an authorisation under Clause 26A.3 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 26A.4.5 and unless otherwise
directed by the Secretary of State, the DBFO Co
shall instead perform those services set out in
Clause 26A.4.2 insofar as they apply to the
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same function of the Secretary of State as the
Third Party Authorised Function which has been
revoked or has expired;
26A.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 26A.4.5 and unless otherwise directed by
the Secretary of State, the DBFO Co shall perform
those services set out in Clause 26A.4.2 insofar
as they apply to the Other Function.
26A.4.2 In the circumstances referred to in Clauses 26A.4. 1.1 and
26A.4.1.2 , in relation to:
26A.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,
26A.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;
26A.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;
26A.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;
26A.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;
26A.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.
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26A.4.3 As part of the Liaison Procedures the DBFO Co shall
establish with the Department's Representative a procedure
for the communication of the matters referred to in Clause
26A.4.2 to the Secretary of State.
26A.4.4 Without limitation to Clause 3.4, the DBFO Co shall deal
with all matters relating to its obligations pursuant to
Clause 26A.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.
26A.4.5 In carrying out its services pursuant to this Clause 26A.4,
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.
26A.4.6 For the purposes of Clause 26A.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.
26A.4.7 Actions taken by the DBFO Co pursuant to this Clause 26A.4
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 26A.4.2 shall not be subject to review
under the Disputes Resolution Procedure.
26A.5 The Secretary of State's Responsibility
Without prejudice to the DBFO Co's obligations pursuant to Clause
26A.2.2, the Secretary of State shall:
26A.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 26A, the DBFO Co will be exercising the Third
Party Authorised Functions or will be performing the
services set out in Clause 26A.4 (as the case may be);
26A.5.2 notify the DBFO Co promptly of any Third Parties'
requirements, notices or details of legal proceedings which
he receives relating to the Statutory Provisions.
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27. OTHER THIRD PARTIES
27.1 Third Party Claims
27.1.1 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.
27.1.2 If the DBFO Co receives any Claim from a third party
relating wholly to any period or any act or omission in
respect of the Project Facilities prior to the date of
execution of this Agreement, 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 35.
27.2 Claims Against Third Parties
27.2.1 As between the Secretary of State and the DBFO Co, the DBFO
Co will bear, without recourse to the Secretary of State,
any Loss suffered by the DBFO Co, its agents, contractors or
sub-contractors of any tier or the employees of any of them
which is:
27.2.1.1 caused by or results from the presence of any
persons not entitled to be upon the Site or the
Adjacent Areas (including, without limitation, any
Protestors); or
27.2.1.2 caused 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).
27.2.2 For the avoidance of doubt, nothing in Clause 27.2.1 shall
affect:
27.2.2.1 any right of the Secretary of State to make or
recover any Claim against any person referred to
in Clause 27.2.1 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
27.2.2.2 any right of the DBFO Co to make or recover any
Claim against any person referred to in Clause
27.2.1 for damage suffered by the DBFO Co, its
agents, contractors or sub-contractors of any
tier, or the employees of any of them.
27.2.3 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 27.2.1 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.
27.3 Police
The DBFO Co shall comply at all times with all instructions of the
police in respect of the Project Facilities.
27.4 Interested Parties
27.4.1 The DBFO Co shall discharge the Requirements of Interested
Parties.
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27.4.2 Without limitation to Clause 27.4.1, the DBFO Co shall be
responsible for complying with any requirements of any
Interested Party of which the DBFO Co has notice or ought
reasonably to be aware from time to time.
27.5 Abnormal Indivisible Loads
27.5.1 The Secretary of State shall promptly advise the DBFO Co of
any notice it receives of any Abnormal Indivisible 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 Indivisible Load.
27.5.2 For the avoidance of doubt, the provisions of Clause 27.2.1
shall apply in respect of any damage caused to the Project
Facilities by any such Abnormal Indivisible Load.
27.6 Litter Authority
27.6.1 If and so long as required by the Secretary of State (by
notice) to do so, the DBFO Co shall discharge in respect of
the Project Road (or any part thereof) 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.
27.6.2 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 27.6.1, the DBFO Co shall procure access for the
Relevant Authority in accordance with Clause 12.4.2 to
discharge the duties under Sections 89(1) and 89(2) of the
Environmental Protection Act 1990.
27.7 Shared Facilities
27.7.1 If any electrical power supply serving the Project
Facilities also serves any facilities (other than the
Project Facilities) for which the Secretary of State is the
highway authority, then:
27.7.1.1 the DBFO Co shall use all reasonable endeavours to
procure at the earliest date practicable the
installation of separate meters measuring only the
supply of electricity used in respect of the
Project Facilities and shall make payment for such
supply directly to the provider of such supply;
and
27.7.1.2 in respect of any period during which there are no
such separate meters 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 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.
27.7.2 For the avoidance of doubt, save to the extent otherwise
agreed by the DBFO Co with the relevant third party, the
DBFO Co shall be fully responsible, at its expense, for the
operation and maintenance of any shared facilities forming
part of the Project Facilities (including, without
limitation, those set out in Part 4A of Schedule 3 [Shared
Facilities]).
27.8 Liaison Procedures
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.
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27.9 Acts of Terrorism
27.9.1 Without prejudice and in addition to Clause 33 [Force
Majeure], the following provisions shall apply in respect of
any damage to the Project Road caused by an act of terrorism
referred to in paragraph 1.5 of Part 2 of Schedule 11 (for
the avoidance of doubt, not being any act by or damage by or
resulting from any persons not entitled to be upon the Site
or Adjacent Areas and who are engaged in a protest action
against the construction or operation of the Project Road or
against the construction or operation of highways
generally).
27.9.2 In the event that any damage to the Project Road is caused
by an act of terrorism to which this Clause 27.9 applies,
the DBFO Co shall promptly give notice to the Secretary of
State identifying such damage. The Parties shall endeavour
to agree the required remedial action to be taken to enable
the Project Road to be returned to a standard complying with
the O&M Requirements and as would enable the DBFO Co at the
end of the Contract Period to satisfy the requirements of
Clause 17.1 [Handback Requirements] on the assumption that
the DBFO Co complied with its obligations as to operation
and maintenance of the Project Road under this Agreement,
and in default of agreement the Dispute shall be referred to
the Disputes Resolution Procedure.
27.9.3 The DBFO Co shall be responsible for the execution (at its
own cost) of all necessary remedial works ("Terrorist
Remedial Works") in respect of such damage agreed or
determined under Clause 27.9.2.
27.9.4 The following provisions shall apply in relation to the
imposition of Lane Closure Charges in respect of any lane
closures on the Project Road as a result of the carrying out
of the Terrorist Remedial Works:
27.9.4.1 the Parties shall seek to agree upon a Permitted
Closure (as defined in Clause 15.4.3.1) in respect
of each affected section of the Project Road in
respect of the Terrorist Remedial Works prior to
their commencement;
27.9.4.2 if the Parties shall fail to agree upon any
Permitted Closure within 45 days after the date on
which the Terrorist Remedial Works are agreed or
determined under Clause 27.9.2, the Dispute shall
be referred to the Disputes Resolution Procedure;
27.9.4.3 to the extent that any actual lane closure on a
particular section of the Project Road exceeds the
Permitted Closure for that section (whether as to
the number of lanes, duration or otherwise), Lane
Closure Charges will be payable by the DBFO Co in
respect of that closure in accordance with Part 3
of Schedule 9.
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PART IV
PAYMENTS
28. MEASUREMENT OF TRAFFIC
28.1 Measurement Method
At all times from and after the date of issue of the Permit to Use,
the traffic using the Project Road shall be continuously measured by
the DBFO Co at each Measurement Point using the Measuring Equipment.
28.2 Measurement Points
28.2.1 Each of the following shall be a Measurement Point for the
purposes of this Agreement:
28.2.1.1 each of the points so designated on drawings
numbered C2/09/100/14 Revision B, C1/09/100/01
Revision C, C3/09/100/01 Revision B and
C3/09/100/02 Revision C contained in Part 7 of
Schedule 3; and
28.2.1.2 if as a result of any Subsequent Scheme,
Additional Works or otherwise the Measurement
Points specified in Clause 28.2.1.1 shall be
insufficient or inadequate to Measure accurately
all traffic using the Project Road, such other
point or points as necessary to Measure such
traffic accurately.
28.2.2 If there is any Dispute between the DBFO Co and the
Department's Representative as to the need for or location
of any Measurement Point referred to in Clause 28.2.1.2 or
as to any amendment required to Part 6 of Schedule 9 as a
consequence of the addition of any such Measurement Point,
such Dispute shall at the request of either be submitted to
the Disputes Resolution Procedure.
28.2.3 The Secretary of State shall bear the cost of any additional
Measurement Point required pursuant to Clause 28.2.1.2 as a
result of any Additional Works. The DBFO Co shall bear the
cost of any other Measurement Point required pursuant to
Clause 28.2.1.2.
28.3 Measuring Equipment
28.3.1 The DBFO Co shall provide and install (at its own cost, save
as provided in Clause 28.2.3) the following equipment (the
"Measuring Equipment") at each Measurement Point:
28.3.1.1 one set of vehicle detection equipment meeting the
specification set out in Section A of Part 1 and
Section A of Part 2 of Schedule 17; and
28.3.1.2 all other measuring and verification equipment
(together with necessary housings, appliances and
buildings) required to Measure the traffic passing
the Measurement Point.
28.3.2 The Measuring Equipment shall be capable of classifying each
vehicle passing the Measurement Point into one of the
following categories:
28.3.2.1 HGVs; and
28.3.2.2 Other Vehicles.
28.3.3 The DBFO Co shall provide and install at its own cost at the
Measurement Point so designated on drawing numbered C
1/09/100/01 Revision C contained in Part 7 of Schedule 3
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the following equipment (the "Traffic Census Equipment") in
addition to the Measuring Equipment:
28.3.3.1 one set of vehicle detection equipment meeting the
specification set out in Section B of Part 1 and
Section B of Part 2 of Schedule 17; and
28.3.3.2 such cables or other means of electronic data
transmission as necessary to connect the equipment
referred to in Clause 28.3.3.1 to the public
service telephone network.
28.3.4 The Measuring Equipment and the Traffic Census Equipment
shall include such alternative facilities as may reasonably
be required to ensure that failure or withdrawal for
maintenance or adjustment of any individual component does
not materially affect the Measurement of traffic by the
Measuring Equipment or the Traffic Census Equipment (as the
case may be).
28.3.5 Prior to the installation or replacement of any component of
the Measuring Equipment or Traffic Census Equipment which
may materially affect the accuracy of Measurement of such
Measuring Equipment or Traffic Census Equipment, the DBFO Co
shall notify the Department's Representative of the design
and type of such equipment and such notice shall be dealt
with under the Review Procedure.
28.3.6 Without limitation to Clause 28.3.4, the DBFO Co shall
install, maintain, repair, replace and operate all Measuring
Equipment and Traffic Census Equipment in accordance with
Good Industry Practice.
28.3.7 The Secretary of State shall be entitled at any time and
from time to time to install and operate (at its own expense
and risk) at any Measurement Point:
28.3.7.1 check measuring equipment to check the Measurement
of the traffic at such Measurement Point; and/or
28.3.7.2 equipment linked directly to the Measuring
Equipment;
to provide at the Secretary of State's premises independent
confirmation and/or direct readings of the Measurement of
the traffic at such Measurement Point.
28.3.8 Any equipment installed by the Secretary of State pursuant
to Clause 28.3.7 shall be compatible with and shall not
interfere with the use or operation of the Measuring
Equipment.
28.4 Verification
28.4.1 The DBFO Co shall Verify the Measuring Equipment and the
Traffic Census Equipment at each Measurement Point at least
once in every 90 days or at such other frequency as may be
agreed by the Department's Representative. Without
limitation to Clause 28.7.1 the DBFO Co shall adjust such
Measuring Equipment to read centrally and accurately within
the limits of accuracy set out in paragraph 2 of Section A
of Part 1 of Schedule 17 (the "Measurement Limits of
Accuracy") and shall adjust such Traffic Census Equipment to
read centrally and accurately within the limits of accuracy
set out in paragraph 2 of Section B of Part 1 of Schedule 17
(the "Census Limits of Accuracy").
28.4.2 The DBFO Co shall give to the Department's Representative
reasonable notice of the date and time of any Verification
pursuant to Clause 28.4.1 and the Department's
Representative shall be entitled to attend and witness any
such Verification. The Department's Representative may
require the DBFO Co to Verify any Measuring Equipment or the
Traffic Census Equipment at any other time.
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28.4.3 Verifications shall be made at the expense of the DBFO Co,
except that the Secretary of State shall bear the costs of
the attendance of the Department's Representative at any
Verification and the whole expense of any Verification
(other than periodic) made at the request of the
Department's Representative if the Measuring Equipment or
Traffic Census Equipment (as the case may be) is found to be
registering within the Measurement Limits of Accuracy or
Census Limits of Accuracy (as the case may be).
28.5 Collection of Data
28.5.1 The DBFO Co shall procure that the Traffic Data is collected
at such times and in such format as will enable the DBFO Co
to prepare the Monthly Report.
28.5.2 Subject to Clause 28.7.2, if there is more than one set of
vehicle detection equipment measuring the same flow of
traffic at a Measurement Point, then the traffic passing the
Measurement Point during any period shall be deemed to be
the average of the figures produced by each of such sets of
vehicle detection equipment during such period. Such average
shall be calculated and provided to the Secretary of State
in the Monthly Report together with the figures produced for
each of such sets of vehicle detection equipment.
28.6 Inspection and Auditing
The Department's Representative shall be entitled at all reasonable
times to inspect:
28.6.1 any Measuring Equipment and the Traffic Census Equipment;
and
28.6.2 any charts or other measurement or test data relating to the
Measuring Equipment or the Traffic Census Equipment.
28.7 Correction of Defects
28.7.1 If at any time any Measuring Equipment is found to be
defective or measuring outside the Measurement Limits of
Accuracy, the DBFO Co shall as soon as practicable adjust
such equipment (the "Defective Equipment") to read centrally
and accurately within such limits or (if that is not
possible) shall replace it with serviceable equipment
28.7.2 If the Defective Equipment comprises only one of two or more
sets of vehicle detection equipment at a Measurement Point,
then the calculation for the relevant Measurement Point
pursuant to Clause 28.5.2 shall be retrospectively
corrected, excluding from such calculations the data from
such defective set of vehicle detection equipment from the
time when such set of vehicle detection equipment became
defective or (where that time cannot be established) from
the time which is the mid-point between the last
Verification which indicated that the set of vehicle
detection equipment was operating within the Measurement
Limits of Accuracy and the next following Verification.
28.7.3 In all other circumstances where there is any Defective
Equipment, the Traffic Data from the relevant Measurement
Point or (where there are two or more sets of vehicle
detection equipment at a Measurement Point) the calculations
for the relevant Measurement Point pursuant to Clause 28.5.2
shall be retrospectively corrected from the time when such
equipment became defective (or where two or more sets of
vehicle detection equipment are defective, from the time
when the second such set of vehicle detection equipment
became defective) or (where that time cannot be established)
from the time which is the mid-point between the last
Verification which indicated that the equipment was
operating within the Measurement Limits of Accuracy and the
next following Verification.
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28.7.4 Calculations shall be corrected for purposes of Clause
28.7.3 by applying the methods set out below in the order in
which they appear:
28.7.4.1 by using the readings recorded by any check
measuring equipment, provided that such equipment
is operating within the Measurement Limits of
Accuracy. If such equipment is not operating
accurately or if no such equipment has been
installed, then
28.7.4.2 by correcting the error if the percentage of error
is ascertainable to the satisfaction of the DBFO
Co and the Department's Representative by
calibration, test or mathematical calculation. If
the percentage of error is not so ascertainable,
then
28.7.4.3 by using the readings recorded during the
comparable period of the immediately preceding
month, provided the relevant equipment was
operating within the Measurement Limits of
Accuracy during such period. If such equipment was
not operating accurately or if there are no such
readings, then
28.7.4.4 by estimating the number and classification of
vehicles by reference to Measurements made under
similar circumstances when the Defective Equipment
was registering accurately. If there is any
Dispute between the DBFO Co and the Department's
Representative on any such estimate, then such
Dispute shall at the request of either be
submitted to the Disputes Resolution Procedure.
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29. CALCULATION OF PAYMENTS
29.1 DBFO Payments
29.1.1 In consideration for the conduct of the Operations from the
date of this Agreement but subject to the provisions of
Clause 29.2 (in particular, but without limitation, Clause
29.2.1), the Secretary of State shall pay to the DBFO Co in
respect of each Contract Year an amount (the "DBFO Payment")
determined in accordance with the following formula:
P = TP - LCC + SPP + CS
where:
P = the DBFO Payment in respect of the Contract
Year.
TP = the Traffic Payment in respect of the Contract
Year, calculated in accordance with Part 2 of
Schedule 9.
LCC = the Lane Closure Charge in respect of the
Contract Year, calculated in accordance with
Part 3 of Schedule 9.
SPP = the Safety Performance Payment in respect of
the Contract Year, calculated in accordance
with Part 4 of Schedule 9.
CS = the aggregate of all Commuted Sums, calculated
in accordance with paragraph 6 of Part 1 of
Schedule 12, payable in respect of the
Contract Year (the "Aggregate Commuted Sum").
29.1.2 Subject to paragraph 6 of Part 3 of Schedule 9, the DBFO
Payment in respect of a Contract Year shall be paid in
monthly instalments in accordance with Clause 29.3
[Provisional DBFO Payments], as adjusted in accordance with
Clause 29.4 [Annual Reconciliation].
29.2 Commencement of Payments
29.2.1 Notwithstanding any other provision of this Agreement, no
DBFO Payment (including any provisional DBFO Payment
pursuant to Clause 29.3) shall be payable by the Secretary
of State to the DBFO Co in respect of any vehicle kilometres
measured in respect of any part of the Project Road during
any period prior to the Permit to Use Date. The Traffic
Payment payable in respect of the Contract Year during which
the Permit to Use Date occurs shall be calculated in
accordance with Part 1 of Schedule 9.
29.2.2 Notwithstanding the provisions of Clauses 29.1 and 29.2.1
(but subject to paragraph 6 of Part 3 of Schedule 9), in
respect of any period following the issue of the Permit to
Use in respect of the New Road but prior to the issue of the
Completion Certificate, the DBFO Co shall be entitled to
receive:
29.2.2.1 in respect of any Monthly Traffic Payment, only 80
per cent of the sum which would otherwise be
payable under the other provisions of this Clause
29 in respect of that Monthly Traffic Payment; and
29.2.2.2 in respect of the Traffic Payment for the Contract
Year in which such period (or any part of it)
falls, the amount determined in accordance with
paragraph 2 of Part 1 of Schedule 9.
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29.3 Provisional DBFO Payments
29.3.1 Subject to Clauses 29.2.1, 29.3.2 and 29.3.3 and to
paragraph 6 of Part 3 of Schedule 9, the Secretary of State
shall pay to the DBFO Co in respect of each month during a
Contract Year, as a provisional payment in respect of the
DBFO Payment for that Contract Year (the "Provisional
Monthly Payment"), the aggregate of:
29.3.1.1 the aggregate of all Relevant Monthly Amounts
payable in respect of such month in accordance
with paragraph 6 of Part 1 of Schedule 12 (the
"Aggregate Relevant Monthly Amount"); and
29.3.1.2 an amount (the "Monthly Traffic Payment") equal to
the Traffic Payment for the Contract Year
immediately prior to the Contract Year in
question, divided by 12.
29.3.2 For purposes of Clause 29.3.1:
29.3.2.1 the Monthly Traffic Payment in respect of each
month during the first Contract Year in respect of
which payments are to be made under this Agreement
shall be (pound)4,000,000; and
29.3.2.2 the Monthly Traffic Payment in respect of each
month during the next succeeding Contract Year
shall be the Traffic Payment for such first
Contract Year divided by the number of whole or
partial months during such first Contract Year in
respect of which Monthly Traffic Payments were
required to be made under this Agreement.
29.3.3 If the Traffic Payment for the preceding Contract Year has
not been determined in accordance with Part 2 of Schedule 9
at the time the Monthly Traffic Payment in respect of any
month is to be determined for the purposes of Clause 29.3.1,
then the Monthly Traffic Payment applicable immediately
prior to the beginning of the Contract Year in which such
month falls shall be used as the Monthly Traffic Payment in
respect of such month. For the avoidance of doubt, once the
Traffic Payment for the preceding Contract Year has been
determined, the Monthly Traffic Payment in respect of all
subsequent months in the Contract Year in question shall be
determined as provided in Clause 29.3.1, but no adjustment
shall be made in respect of any Monthly Traffic Payments
previously made other than in accordance with Clause 29.4.
29.4 Annual Reconciliation
29.4.1 Not later than 28 days following the end of each Contract
Year the DBFO Co shall notify the Secretary of State of the
following information:
29.4.1.1 the actual DBFO Payment in respect of such
Contract Year, determined in accordance with
Clause 29.1.1;
29.4.1.2 the total of the Monthly Traffic Payments,
Aggregate Relevant Monthly Amounts and Permitted
O&M Payments paid in respect of such Contract
Year;
29.4.1.3 the amount payable by the Secretary of State to
the DBFO Co in respect of the DBFO Payment, being
the amount by which the amount in Clause 29.4.1.1
exceeds the amount in Clause 29.4.1.2, or the
amount payable by the DBFO Co to the Secretary of
State in respect of the DBFO Payment, being the
amount by which the amount in Clause 29.4.1.2
exceeds the amount in Clause 29.4.1.1;
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29.4.1.4 any Value Added Tax payable on the amount payable
pursuant to Clause 29.4.1.3 or, where the amount
is payable to the Secretary of State, the amount
of VAT over-paid by the Secretary of State;
29.4.1.5 any other adjustments to reflect previous
over-payments and/or under-payments (each
adjustment stated separately);
29.4.1.6 any other amount due and payable from one Party to
the other under this Agreement;
29.4.1.7 any interest payable in respect of any amounts
owed; and
29.4.1.8 the net amount owing by the Secretary of State to
the DBFO Co or by the DBFO Co to the Secretary of
State.
29.4.2 The notice given pursuant to Clause 29.4.1 (the "Annual
Reconciliation Notice") shall be accompanied by workpapers
clearly setting forth the derivation of the figures set out
in the Annual Reconciliation Notice. The workpapers shall
illustrate, inter alia, the calculation of:
29.4.2.1 the DBFO Payment (following the formula specified
in Clause 29.1.1) and showing separately the
calculation of the Traffic Payment in accordance
with Part 2 of Schedule 9, the calculation of the
Lane Closure Charge in accordance with Part 3 of
Schedule 9, the calculation of the Safety
Performance Payment in accordance with Part 4 of
Schedule 9 and the calculation of the relevant
Commuted Sums and the Aggregate Commuted Sum in
accordance with paragraph 6 of Part 1 of Schedule
12 and Clause 29.1.1;
29.4.2.2 any adjustments to reflect previous over-payments
and/or under-payments;
29.4.2.3 any other amount due and payable from one Party to
the other under this Agreement; and
29.4.2.4 if the Annual Reconciliation Notice reflects any
amounts due and owing on which interest is
payable, the amount of interest.
29.4.3 The following provisions of this Clause 29.4.3 shall apply
where the relevant Contract Year falls wholly or partly at
any time after the payment of a Commuted Sum under paragraph
6 of Part 1 of Schedule 12:
29.4.3.1 the DBFO Payment specified in Clause 29.4.1.1 for
that relevant Contract Year shall be reduced in
accordance with this Clause 29.4.3, by reference
to the amount of any Tax Reliefs to which the DBFO
Co is entitled in respect of any accounting period
(as defined in Section 12 of the Income and
Corporation Taxes Act 1988) ending within such
Contract Year where the entitlement to the Tax
Reliefs arises as a direct consequence of
expenditure of the DBFO Co which was financed from
that Commuted Sum. No amount of Tax Reliefs shall
be taken into account more than once under this
Clause 29.4.3 and, in particular, if DBFO Co
becomes entitled to Tax Reliefs in an earlier
accounting period (the "earlier period") and
subsequently carries any or all of those Tax
Reliefs forward to a later accounting period (the
"later period"), the Tax Reliefs shall only be
taken into account in reducing the DBFO Payment as
mentioned above for the Contract Year in which the
earlier period ends;
29.4.3.2 where the Tax Reliefs consist of any amount which
can be taken into account so as to restrict or
reduce, in any manner, the amount of any income,
profits or
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gains of the DBFO Co or to create or increase a
loss or deficit of the DBFO Co for the relevant
accounting period, then the DBFO Payment shall be
reduced by a sum equal to the face value of such
Tax Reliefs multiplied by the rate of Tax to which
the DBFO Co is subject, for the relevant
accounting period or periods, in respect of its
income, profits or gains, or to which it would be
so subject for such period or periods if it had
sufficient income, profits or gains;
29.4.3.3 where the Tax Reliefs consist of a credit against
Tax, a right of set-off against Tax or a right to
repayment of Tax, the DBFO Payment shall be
reduced by a sum equal to the face value of such
Tax Reliefs; and
29.4.3.4 where the Tax Reliefs consist of any amount of
expenditure which could be used so as to
discharge, in whole or in part, a liability to Tax
of the DBFO Co, assuming a sufficiency of taxable
income, profits or gains of the DBFO Co, then the
DBFO Payment shall be reduced by a sum equal to
the face value of such Tax Reliefs multiplied by
the rate of Tax to which the DBFO Co is subject,
for the relevant accounting period or periods, in
respect of its income, profits or gains or to
which it would be so subject for such period or
periods if it had sufficient income, profits or
gains.
29.4.4 If, in the reasonable opinion of the DBFO Co, it is not in
the event entitled to any Tax Reliefs which have been taken
into account under Clause 29.4.3.1 then the DBFO Payment
specified in Clause 29.4.1.1 shall be treated as never
having been reduced in accordance with Clause 29.4.3 by
reference to such Tax Reliefs and an amount equal to any
such reduction shall be repayable to the DBFO Co, provided
that this Clause 29.4.4 shall not apply where the DBFO Co is
not entitled to such Tax Reliefs because of its failure to
make a claim or election in a timely manner.
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30. INVOICING AND PAYMENT
30.1 Monthly Invoices
30.1.1 The Monthly Traffic Payment and any Aggregate Relevant
Monthly Amount shall be payable by the Secretary of State to
the DBFO Co monthly in arrears.
30.1.2 Within 10 days following the last day of each month, the
DBFO Co shall deliver to the Secretary of State a report
setting out the payments payable in respect of such month.
The report shall show:
30.1.2.1 the Monthly Traffic Payment and any Aggregate
Relevant Monthly Amount for the relevant month;
30.1.2.2 any Value Added Tax payable for the relevant
month;
30.1.2.3 any adjustments to reflect previous over-payments
and/or under-payments (each adjustment stated
separately);
30.1.2.4 any other amount due and payable from one Party to
the other under this Agreement;
30.1.2.5 any interest payable in respect of any amounts
owed; and
30.1.2.6 the net amount owing by the Secretary of State to
the DBFO Co or by the DBFO Co to the Secretary of
State.
30.1.3 The report delivered pursuant to Clause 30.1.2 shall be
accompanied by workpapers clearly setting forth the
derivation of the Monthly Traffic Payment and any Aggregate
Relevant Monthly Amount, all other charges and any
adjustments. The workpapers shall illustrate, inter alia,
the calculation of:
30.1.3.1 the Monthly Traffic Payment and any Aggregate
Relevant Monthly Amount;
30.1.3.2 any adjustments to the invoice to reflect previous
over-payments or under-payments;
30.1.3.3 any other amount due and payable from one Party to
the other under this Agreement; and
30.1.3.4 if the invoice reflects any amounts due and owing
on which interest is being charged, the amount of
interest.
30.1.4 If the report delivered pursuant to Clause 30.1.2 shows a
net amount owing by the Secretary of State to the DBFO Co,
it shall be accompanied by an invoice from the DBFO Co to
the Secretary of State in respect of such amount (which
invoice shall separately identify any additional VAT payable
by the Secretary of State). If the report shows a net amount
owing by the DBFO Co to the Secretary of State, the
Secretary of State shall issue a debit note to the DBFO Co
in respect of such amount promptly following his receipt of
such report (which debit note shall separately identify any
VAT overpaid by the Secretary of State).
30.2 Annual Invoices
30.2.1 If the Annual Reconciliation Notice shows an amount payable
by the DBFO Co to the Secretary of State, the Secretary of
State shall issue a debit note to the DBFO Co in respect of
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such amount promptly following his receipt of the Annual
Reconciliation Notice (which debit note shall separately
identify any VAT overpaid by the Secretary of State).
30.2.2 If the Annual Reconciliation Notice shows an amount payable
by the Secretary of State to the DBFO Co, the DBFO Co shall
issue an invoice to the Secretary of State in respect of
such amount together with the Annual Reconciliation Notice
(which invoice shall separately identify any additional VAT
payable by the Secretary of State).
30.3 Secretary of State's Invoices
If the DBFO Co fails to issue any report or invoice within the time
period required pursuant to Clause 30.1 or Clause 30.2, the Secretary
of State may himself prepare such report or invoice and the report or
invoice so prepared shall be deemed to have been issued by the DBFO
Co.
30.4 Due Date for Payments
30.4.1 Without prejudice to Clause 30.6, the Secretary of State
shall pay to the DBFO Co the amount of an invoice issued by
the DBFO Co pursuant to Clause 30.1.4 not later than the
later of:
30.4.1.1 the last day of the month following the month to
which the invoice relates; or
30.4.1.2 the twentieth day after the Secretary of State has
received both the said invoice and the Monthly
Report in respect of such month.
30.4.2 Without prejudice to Clause 30.6, the DBFO Co shall pay to
the Secretary of State the amount of a debit note issued by
the Secretary of State pursuant to Clause 30.1.4 not later
than the later of:
30.4.2.1 the last day of the month following the month to
which the debit note relates; or
30.4.2.2 the twentieth day after the DBFO Co has received
the said debit note.
30.4.3 Without prejudice to Clause 30.6, the Secretary of State
shall pay to the DBFO Co the amount of an invoice issued by
the DBFO Co pursuant to Clause 30.2.2 not later than the
later of:
30.4.3.1 30 days after receipt of such invoice; or
30.4.3.2 the twentieth day after the Secretary of State has
received all of the said invoice, the Annual
Reconciliation Notice in respect of the relevant
Contract Year and the Annual Report in respect of
such Contract Year.
30.4.4 Without prejudice to Clause 30.6, the DBFO Co shall pay to
the Secretary of State the amount of a debit note issued by
the Secretary of State pursuant to Clause 30.2.1 not later
than 20 days after receipt of such debit note.
30.4.5 Should the original due date for any payment pursuant to
this Agreement not be a Working Day, then the due date shall
be the Working Day next following the original due date.
30.5 Payments
All payments under this Agreement shall be made in pounds sterling by
telegraphic transfer or equivalent instantaneous transfer of funds for
value on the day in question to the bank account of the recipient
(located in the United Kingdom) specified in the invoice or debit
note, quoting the invoice or debit note number against which payment
is made.
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30.6 Disputed Amounts
30.6.1 Either Party shall have the right to dispute, in good faith,
any amount specified in an invoice or debit note referred to
in this Agreement. The Party disputing any such amount shall
pay such amount of the invoice or debit note in question as
is not in dispute and shall be entitled to withhold the
balance pending resolution of the dispute.
30.6.2 The Parties shall use all reasonable endeavours to resolve
the dispute in question within 30 days of the dispute
arising. If they fail so to resolve it, either Party may
refer the matter to the Disputes Resolution Procedure.
30.6.3 Following resolution of the dispute, any amount agreed or
adjudged to be due shall promptly on demand be paid,
together with interest thereon at a rate per annum equal to
the Interest Rate plus 1 per cent per annum from the day
after the date on which payment was due to (and including)
the date of payment.
30.7 Late Payments
If any undisputed payment due under this Agreement remains unpaid
after its due date, such payment shall bear interest at a rate per
annum equal to the Interest Rate plus 2 per cent per annum from the
day after the date on which the payment was due to (and including) the
date of payment. The right of either Party to receive interest in
respect of the late payment of any sum due shall be without prejudice
to such other rights as that Party may have under this Agreement.
30.8 Satisfaction of Obligation
If the calculation of any amounts payable by the Secretary of State
under this Agreement would (otherwise than for this Clause 30.8)
require the Secretary of State to pay an amount more than once within
the same provision or under more than one provision of this Agreement,
in respect of the same costs, expense, liability or obligation, the
Secretary of State's obligations in respect thereof shall be
discharged if and to the extent that payment of such amount is paid
once only.
30.9 Set-Off
30.9.1 Subject to Clause 30.9.2, whenever any sum of money shall be
recoverable from or payable by the DBFO Co under this
Agreement, such sum may be deducted from or reduced by the
amount of any sum then due or which at any time thereafter
may become due to the DBFO Co under this Agreement or any
other contract between the DBFO Co and any department,
office, instrumentality or agency of the Government.
30.9.2 Clause 30.9.1 shall not apply in respect of any sum of money
claimed to be recoverable from or payable by the DBFO Co if,
at the time at which the provisions of Clause 30.9.1 would
otherwise apply:
30.9.2.1 the amount of such sum, or the liability to pay
it, is the subject of a bona fide Dispute which,
before such time, has been referred to, but not
finally determined in accordance with, the
Disputes Resolution Procedure; and
30.9.2.2 no Event of Default has occurred and is
continuing.
30.10 Examination of Records
Without limitation to Clause 23.2 [Audit], the Secretary of State
shall have the right at reasonable hours upon giving the DBFO Co
reasonable notice and at its own expense to examine the books and
records of the DBFO Co relative to this Agreement to the extent
necessary to verify the accuracy of any accounting
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statement, charge, computation or claim made pursuant to any of the
provisions of this Agreement, provided that:
30.10.1 such books and records need not (unless the same contain
information relating to a bona fide Dispute) be preserved
longer than the period specified in respect of such books or
records in Part 1 of Schedule 14 or (if no such period is so
specified) a period of 7 years after the end of the Contract
Year to which such books or records refer;
30.10.2 if any such examination reveals any inaccuracy in any
invoice theretofore made, the necessary adjustments in such
invoice and payment shall be made within 14 days after the
date that such inaccuracy is established by agreement or
adjudication; and
30.10.3 such right to examine must be exercised within the period
specified for retention of such books or records in Part 1
of Schedule 14 or (if no such period is so specified) a
period of 7 years after the end of the Contract Year to
which the books or records being examined refer.
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PART V
CHANGE, LIABILITIES AND TERMINATION
31. 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, or User
Paid Tolls are introduced or changed, the provisions of Schedule 12
[Change] shall apply.
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32. ADDITIONAL WORKS SERVICES AND SUBSEQUENT SCHEMES
32.1 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.
32.2 Compensation
32.2.1 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.
32.2.2 The provisions of Part 4 of Schedule 12 shall apply with
respect to any Change in Costs or Change in Revenues of the
DBFO Co consequential upon the carrying out of any Additional
Works.
32.3 Subsequent Schemes
Subject to Clause 32.5, where the DBFO Co desires a Subsequent Scheme
to be carried out the provisions of Part 3 of Schedule 13 shall apply.
32.4 Improvements
Subject to Clause 32.5, where the DBFO Co desires to make any
Improvement to the Project Facilities the provisions of Part 4 of
Schedule 13 shall apply.
32.5 Safety Improvements
Where the DBFO Co desires to make any Safety Improvement, the
provisions of Part 5 of Schedule 13 shall apply.
32.6 East Leeds Radial Junction
32.6.1 It is acknowledged by both Parties that Leeds City Council is
the highway authority in respect of the proposed East Leeds
Radial Junction, that the East Leeds Radial Junction will not
form part of the Project Facilities, and that, subject to
Clause 32.6.5, the Secretary of State shall have no
responsibility for, and shall not as a consequence of this
Agreement have any liability to the DBFO Co in respect of, the
East Leeds Radial Junction.
32.6.2 If the DBFO Co or any Associated Company of the DBFO Co enters
into an agreement with Leeds City Council for the construction
of the East Leeds Radial Junction, the DBFO Co shall submit to
the Department's Nominee under the Review Procedure any
proposal for the modification of any part of the Project
Facilities to accommodate the East Leeds Radial Junction. The
Department's Nominee shall be entitled to object to any such
proposal in its absolute discretion.
32.6.3 Subject to Clause 32.6.6, the DBFO Co shall indemnify and keep
indemnified the Secretary of State in respect of any Claims or
Losses of the DBFO Co or of any Associated Company of the DBFO
Co which may arise out of, or in the course of or in
connection with, the design, construction, completion,
commissioning, testing, operation or maintenance of the East
Leeds Radial Junction.
32.6.4 Without limitation to Clauses 32.6.1 and 32.6.3, but subject
to Clause 32.6.6, the DBFO Co:
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32.6.4.1 shall not be relieved from any liability for Lane
Closure Charges in respect of any Lane Closure,
occasioned by the construction, operation or
maintenance of the East Leeds Radial Junction or any
part thereof;
32.6.4.2 shall not be entitled to any compensation from the
Secretary of State in respect of any costs or loss of
revenues occasioned by the construction, operation or
maintenance of the East Leeds Radial Junction.
32.6.5 The Secretary of State shall have the right but not the
obligation to give a notice under Clause 32.1 requiring the
DBFO Co to carry out any Additional Works Services in respect
of the East Leeds Radial Junction, and in such event the
provisions of Clauses 32.1 and 32.2 and Parts 1 and 2 of
Schedule 13 shall apply in accordance with their terms.
32.6.6 If the Secretary of State, as contemplated by Clause 32.6.5,
gives a notice under Clause 32.1 requiring the DBFO Co to
carry out any Additional Works Services in respect of the East
Leeds Radial Junction, Clauses 32.6.3 and 32.6.4 shall not
apply in respect of any such Additional Works Services.
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33. FORCE MAJEURE
33.1 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.
33.2 Notice
Relief under Clause 33.1 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.
33.3 Obligation to Remedy
As soon as practicable after the occurrence of an event of Force
Majeure the Party affected shall take all necessary steps to remedy the
failure to perform and relief under this Clause 33 shall cease to be
available to a Party if it fails so to take all necessary steps to
remedy the failure.
33.4 Consequences of Force Majeure
If the Parties agree or it is determined through the Disputes
Resolution Procedure that:
33.4.1 Force Majcure has prior to the issue of the Completion
Certificate prevented the DBFO Co from, or delayed the DBFO Co
in, completing the Works (other than the Excepted Works), the
DBFO Co may make application to the Department's Agent for an
extension of time for completion of the Works (other than the
Excepted Works) pursuant to Clause 10.6 [Extension of Time],
provided that the aggregate of all such extensions pursuant to
this Clause 33.4.1 shall not in any event exceed 18 months.
Where such a grant of extension of time is made, the Contract
Period shall be extended by an equivalent period;
33.4.2 Eligible Force Majeure has prior to the issue of the
Completion Certificate caused damage to the Works then:
33.4.2.1 the DBFO Co shall give notice thereof to the
Department's Agent together with details of the
effect thereof and the proposed steps to rectify the
damage and the costs thereof;
33.4.2.2 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;
33.4.2.3 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
Works Change in respect of such Works and the
provisions of Part 2 of Schedule 12 [Department's
Works Changes] shall apply, except that:
33.4.2.3.1 the DBFO Co shall not be entitled to give
a notice under paragraph 2.1 or 2.2 of
Part 2 of Schedule 12; and
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33.4.2.3.2 for purposes of determining the Revised
Values in accordance with paragraph 5 of
Part 1 of Schedule 12, no Change in
Traffic shall be taken into account;
33.4.3 [Clause not used];
33.4.4 Eligible Force Majeure occurring after the issue of the
Completion Certificate or prior to the issue of the Completion
Certificate and affecting the Existing Road (other than any
Upgraded Section), has substantially affected the traffic flow
on the Project Road, then the Contract Period shall be
extended by a period equal to the period during which the
traffic flow on the Project Road has been so affected,
provided that:
33.4.4.1 there shall be excluded from such period of extension
the first 7 days of each occurrence of an Eligible
Force Majeure event so affecting the traffic flow,
and
33.4.4.2 the aggregate extension of the Contract Period
pursuant to this Clause 33.4.4 shall not in any event
exceed 1 year;
33.4.5 Eligible Force Majeure has prior to the issue of the
Completion Certificate caused damage to the Existing Road
(other than any Upgraded Section) or has after the issue of
the Completion Certificate caused damage to the Project
Facilities (other than the Maintenance Depot); then:
33.4.5.1 the DBFO Co shall give notice thereof to the
Department's Representative together with details of
the effect thereof and the proposed steps to rectify
the damage and the costs thereof,
33.4.5.2 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;
33.4.5.3 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 Part 1 of Schedule 13 and the
provisions of Part 4 of Schedule 12 [Additional
Works] shall apply, except that for purposes of
determining the Revised Values in accordance with
paragraph 5 of Part 1 of Schedule 12, no Change in
Traffic shall be taken into account.
33.4.6 Where an occurrence of Eligible Force Majeure renders the
performance of this Agreement financially or practicably
impossible or has a fundamental effect on the rights or
obligations of either of the Parties the provisions of Clause
38.1 shall apply.
33.4.7 For the avoidance of doubt, save as expressly set out in this
Clause 33 (other than this Clause 33.4.7), 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.
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33A. CHANGE IN LAW
33A.1 Relevant Change in Law
33A.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 2.1 of Part 1 of Schedule 12 and
the General Change Procedure shall apply in accordance with
Part 5 of Schedule 12.
33A.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 Part 5 of Schedule 12 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 33A.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.
33A.2 Deemed Department's Change
33A.2.1 Where the DBFO Co believes that a Change in Law constitutes a
Deemed Department's Change, it may serve a notice (a "Deemed
Department's Change Notice") to that effect on the
Department's Nominee.
33A.2.2 The Deemed Department's Change Notice shall:
33A.2.2.1 identify the relevant Change in Law;
33A.2.2.2 give details of the variation to the Works and/or
the other Operations which has become necessary as a
result of the relevant Change in Law; and
33A.2.2.3 set out the basis of its belief that the same should
have been effected by means of a Department's Works
Change or a Department's Change in Specification.
33A.2.3 Within 45 days of receipt of the Deemed Department's Change
Notice, the Department's Nominee shall notify the DBFO Co that
either:
33A.2.3.1 it agrees that a Deemed Department's Change has
occurred; or
33A.2.3.2 it 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.
33A.2.4 Where the Department's Nominee fails to respond to a Deemed
Department's Change Notice within such 45 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 Works Change or a
Department's Change in Specification as appropriate and the
provisions of Part 2 or Part 3 of Schedule 12 (as appropriate)
shall apply.
33A.2.5 Where the Department's Nominee gives a notice under Clause
33A.2.3.2, the Parties shall negotiate for a period of 60 days
in an attempt to agree:
33A.2.5.1 whether a Deemed Department's Change has occurred;
and
33A.2.5.2 where a Deemed Department's Change has occurred, the
effect, if any, it has on the Works and/or the other
Operations.
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33A.2.6 If the Parties fail to agree any matter referred to in Clause
33A.2.5 within such 60 day period, then either Party may refer
the Dispute to the Disputes Resolution Procedure.
33A.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 Works Change or a
Department's Change in Specification as appropriate and the
provisions of Part 2 or Part 3 of Schedule 12 (as appropriate)
shall apply.
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34. WARRANTIES AND DISCLAIMERS
34.1 Warranties by the DBFO Co
Without prejudice to any warranties or conditions implied by law, the
DBFO Co warrants and undertakes at all times during this Agreement
(save in the case of the warranties contained in Clauses 34.1.7,
34.1.11, 34.113 and 34.1.15 which shall be given solely at the date of
this Agreement) that:
34.1.1 it will fully comply with and meet the Technical Requirements;
34.1.2 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;
34.1.3 the Works and any other works the subject of a Proposal will
comprise only materials and goods which will be of sound and
merchantable quality and have been manufactured or prepared in
accordance with the Technical Requirements and with the
quality assurance procedures established pursuant to Clause 21
[Quality Assurance] and all workmanship shall be in accordance
with sound construction practice applicable at the time of
construction;
34.1.4 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 Statutory
Requirement;
34.1.5 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 and the design as received in accordance with
Clause 9 [Design and Construction] or Clause 12.6 [Maintenance
and Other Works] (as the case may be) and the Design and
Certification Procedure;
34.1.6 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;
34.1.7 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 material
respects;
34.1.8 it is a limited liability company, duly incorporated and
validly existing under the laws of the jurisdiction of its
incorporation;
34.1.9 it has full power and authority to enter into this Agreement
and to carry out the Operations;
34.1.10 the entry into and performance by it of this Agreement do not
and will not:
34.1.10.1 conflict with its constitutional documents; or
34.1.10.2 conflict with 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;
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34.1.11 there has been no material adverse change in the financial
condition of Trafalgar House Corporate Development Limited
since its accounts dated 30th September 1995 or of BICC plc
since its accounts dated 31st December 1995;
34.1.12 the Financial Terms are the basis on which the DBFO Co will
finance the Project;
34.1.13 each of the Project Documents is in full force and effect and
constitutes the valid, binding and 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;
34.1.14 any items referred to in Clauses 45.1.1 and 45.1.2 will be
original and will not infringe any third party's copyright,
moral rights, design rights, trade mark or any other
intellectual property rights; and
34.1.15 the DBFO Co has not carried out any trading activity or
business since the date of its incorporation, and it has no
liabilities (contingent or otherwise) other than (a) in
relation to the Project to the extent disclosed to the
Secretary of State by the DBFO Co in a DBFO Co disclosure
letter of even date herewith and/or (b) those arising under or
in connection with this Agreement or any of the agreements
referred to in Clause 2.3.1 or any other agreement which the
DBFO Co is required to enter into by the terms of this
Agreement and/or (c) those arising (if any) under various
letters in relation to this Agreement of even date herewith
exchanged between the parties to this Agreement.
34.2 Disclaimer
34.2.1 The Secretary of State has made available to the DBFO Co prior
to the date hereof certain materials, documents and data (the
"Disclosed 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 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
in the data room in respect of the Project).
34.2.2 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 or servant of his) in
respect of any inaccuracy, error, omission, unfitness for
purpose, defect or inadequacy of any kind whatsoever in the
Disclosed Data.
34.2.3 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,
defects or inadequacy in the Disclosed Data.
34.2.4 The DBFO Co acknowledges and confirms that:
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34.2.4.1 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
34.2.4.2 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 or Clause
34.2.4.1 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.
34.3 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.
34.4 Warranties by the Secretary of State
The Secretary of State warrants (solely at the date of this Agreement)
that (save as referred to in the Secretary of State's disclosure letter
of even date herewith from the Secretary of State to the DBFO Co):
34.4.1 save as contained or referred to in the Disclosed Data, the
Secretary of State is not aware of any Rights in respect of
land affecting the Site which would have a material and
adverse effect on the ability of the DBFO Co to perform its
obligations under this Agreement; and
34.4.2 the Scheme Orders have been properly made and are, or will be
at the Commencement Date, in full force and effect.
34.5 Data Room
The Secretary of State shall, for the period of the Contract Period and
one year thereafter, retain and keep together the Disclosed Data and
shall allow the DBFO Co (or such other persons as it may nominate from
time to time on its behalf) access, upon reasonable prior notice and at
reasonable times during any Working Day, to the Disclosed Data. The
DBFO Co (and such nominees) may, at their own cost, take such copies of
the Disclosed Data as they may require. The Secretary of State shall
take such reasonable care of the Disclosed Data as he would of his own
papers and data. For the avoidance of doubt, nothing in the foregoing
provisions of this Clause 34.5 shall in any way prevent or restrict the
right of the Secretary of State or the Department's Nominee to have
access to, use, and/or take copies of any of the Disclosed Data at any
time or to permit any of their respective officers, employees, agents
or contractors to do so.
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35. INDEMNITIES
35.1 DBFO Co's Indemnities
Save to the extent that the DBFO Co is entitled to an indemnity from
the Secretary of State under Clause 35.4 [Secretary of State's
Indemnities], the DBFO Co shall indemnify and keep indemnified the
Secretary of State 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:
35.1.1 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;
35.1.2 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;
35.1.3 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 33 [Force Majeure]);
35.1.4 all Losses of the DBFO Co caused by any of the defects in the
Existing Road identified in Part 4 of Schedule 3, 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;
35.1.5 all Losses to be borne by the DBFO Co in accordance with
Clause 15 [Latent Defects in Existing Road];
35.1.6 any Claims 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);
35.1.7 any Claims made by any person in respect of any accommodation
works which the DBFO Co has performed or agreed to perform
whether pursuant to any requirement of this Agreement or
otherwise;
35.1.8 any Loss or Claims arising whether directly or indirectly out
of a breach of the provisions of Clause 26 [Statutory
Undertakers];
35.1.9 any Loss which is to be borne by the DBFO Co in accordance
with Clause 27.2 [Claims Against Third Parties];
35.1.10 any Loss or Claims which may arise out of or in connection
with any breach of the warranties set out in Clause 6 or
Clause 34.1;
35.1.11 any Loss or Claims arising out of the carrying out of any
Ground, Physical and Geophysical Investigations or
archaeological or ecological surveys in each case carried out
by or on behalf of the DBFO Co;
35.1.12 any costs, charges, Losses or Claims to be borne by the DBFO
Co in accordance with Clause 8.4 [Additional Access];
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35.1.13 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;
35.1.14 any Loss or Claim arising whether directly or indirectly out
of any damage to the Connecting Roads in the course of or in
connection with the Operations;
35.1.15 any Loss suffered or incurred by, or any Claim made by, any
third party resulting from any event of Force Majeure other
than any Loss which is to be borne by the Secretary of State
in accordance with Clause 33 [Force Majeure];
35.1.16 any inaccuracy, error, omission, unfitness for purpose, defect
or inaccuracy of any kind whatsoever in the Disclosed Data
(whether or not arising from any negligence on the part of the
Secretary of State or any servant or agent of his);
and (in the case of Clauses 35.1.1 to 35.1.15) whether arising out of
the act, neglect or omission of the DBFO Co, its contractors or
sub-contractors of any tier or agents or its or their employees.
35.2 Savings
35.2.1 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 at any time and in any
manner whatsoever.
35.2.2 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.
35.3 Conduct of Claims Subject to DBFO Co's Indemnities
35.3.1 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.
35.3.2 Subject to Clauses 35.3.3, 35.3.4 and 35.3.5 and, with respect
to any Claim arising under or in respect of the New Roads and
Street Works Act 1991, the provisions of Clause 26 or Clause
26A, on the giving of a notice pursuant to Clause 35.3.1 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.
35.3.3 With respect to any Claim subject to Clause 35.3.2:
35.3.3.1 the DBFO Co shall keep the Secretary of State fully
informed and consult with him about the conduct of
the Claim;
35.3.3.2 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 35.3.2 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
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35.3.3.3 the DBFO Co shall not (save to the extent it is
required to do so by Law) 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 35.1.6 if the Claim is paid or
settled in full and the amount of such payment or
settlement does not exceed (pound)10,000 (in April
1995 prices).
35.3.4 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:
35.3.4.1 within 28 days of the notice from the Secretary of
State under Clause 35.3.1 the DBFO Co fails to notify
the Secretary of State of its intention to dispute
the Claim; or
35.3.4.2 the DBFO Co fails to comply in any material respect
with the provisions of Clause 35.3.3.
35.3.5 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 35.3.2 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
35.3.5, then the DBFO Co shall be released from its indemnity
in respect of such Claim.
35.4 Secretary of State's Indemnities
The Secretary of State shall indemnify and keep indemnified the DBFO Co
in respect of:
35.4.1 any Loss or Claims 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 the matters referred to in Clause
35.1.16;
35.4.2 the cost 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 DBFO Co];
35.4.3 any Claims made by any person in respect of any accommodation
works, other than any accommodation works which the DBFO Co
has performed or agreed to perform whether pursuant to any
requirement of this Agreement or otherwise; and
35.4.4 any Loss which is to be borne by the Secretary of State in
accordance with Clause 33 [Force Majeure].
35.5 Disclaimer
Save as expressly provided in Clause 35.4 [Secretary of State's
Indemnities], the Secretary of State shall not under any circumstances
be liable to the DBFO Co whether in contract, tort 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 Operations. This Clause 35.5 shall not apply in relation to:
35.5.1 any failure by the Secretary of State to make proper payment
to the DBFO Co in accordance with the terms of this Agreement;
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35.5.2 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
35.5.3 any liability of the Secretary of State for any breach of his
obligations under this Agreement.
35.6 Conduct of Claims Subject to Secretary of State's Indemnities
35.6.1 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.
35.6.2 Subject to Clauses 35.6.3 and 35.6.4, on the giving of a
notice pursuant to Clause 35.6.1 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.
35.6.3 With respect to any Claim subject to Clause 35.6.2:
35.6.3.1 the Secretary of State shall keep the DBFO Co fully
informed and consult with it about the conduct of the
Claim;
35.6.3.2 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 35.6.2 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
35.6.3.3 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.
35.6.4 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:
35.6.4.1 within 28 days of the notice from the DBFO Co under
Clause 35.6.1 the Secretary of State fails to notify
the DBFO Co of its intention to dispute the Claim; or
35.6.4.2 the Secretary of State fails to comply in any
material respect with the provisions of Clause
35.6.3.
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36. DEFAULT
36.1 Events of Default
The following shall be Events of Default:
36.1.1 the occurrence of any act of insolvency in respect of the DBFO
Co or an Contracting Associate or any Sponsor, including:
36.1.1.1 any meeting of creditors of the person in question
being held or any arrangement or composition with or
for the benefit of its creditors (including any
voluntary arrangement as defined in the Insolvency
Act 1986) being proposed or entered into by or in
relation to the person in question;
36.1.1.2 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
part of the assets of the person in question;
36.1.1.3 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;
36.1.1.4 a petition being presented or circumstances existing
for a petition being presented, or a meeting being
convened for the purpose of considering a resolution,
for the making of an administration order or the
winding-up, bankruptcy or dissolution of the person
in question; or
36.1.1.5 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 Sponsor, only if the occurrence will
have a material effect on the ability of the DBFO Co to
perform its obligations under this Agreement;
36.1.2 the occurrence of any change in control as referred to in
Clause 41.3;
36.1.3 the DBFO Co or a Contracting Associate or a 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 41.2.2)
without prior consent of the Secretary of State, but in the
case of a Contracting Associate or a Sponsor, only if the
disposal would have a material effect on the ability of the
DBFO Co to perform its obligations under this Agreement;
36.1.4 the failure of the conditions referred to in Clause 7.1 to be
satisfied within three days after the date of this Agreement;
36.1.5 the repudiation of this Agreement by the DBFO Co;
36.1.6 the DBFO Co commits a serious breach of its material
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:
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36.1.6.1 abandoning the Works;
36.1.6.2 failing to complete the Works (other than the
Excepted Works) to such standard as would enable the
issuance of the Completion Certificate by the Date
for Completion;
36.1.6.3 ceasing to maintain or operate the Project
Facilities or any, or any material part of any, of
them;
36.1.7 the DBFO Co neglecting persistently to comply with any of its
material obligations under this Agreement and such neglect has
a material effect on the performance of the Operations;
36.1.8 without limitation to the generality of Clause 36.1.7:
36.1.8.1 the DBFO Co receiving a total number of two or more
Warning Notices in any 5 year period;
36.1.8.2 the DBFO Co being awarded a total of 150 (after
taking into account the reduction (if any) in
Penalty Points pursuant to the proviso in Clause
24.2.1 and any Penalty Points rescinded pursuant to
Clause 24.2.3) or more Penalty Points in any 1 year
period;
36.1.9 any of the warranties in Clause 6 or Clause 34.1 shall prove
to be materially untrue or incorrect, in the case of the
warranties contained in Clauses 34.1.7, 34.1.11, 34.1.13 and
34.1.11.15 at the date of this Agreement, and, in the case of
the warranties in Clause 6 and any of the other warranties in
Clause 34.1, at any time; or
36.1.10 any of the Project Documents:
36.1.10.1 ceases to be in full force and effect or no longer
constitutes the valid, binding and enforceable
obligations of the parties thereto (except in
accordance with its terms or where a substitute
agreement has been entered into in accordance with
Clause 2.3.2), or
36.1.10.2 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, 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; or
36.1.11 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 90 days; or
36.1.12 the DBFO Co commits any breach of Clause 2.4.1 or Clause
41.2.1; or
36.1.13 the DBFO Co either:
36.1.13.1 commits a serious breach of any of its material
obligations under the Lease; or
36.1.13.2 neglects persistently to comply with any of its
material obligations under the Lease and such
neglect has a material effect on the performance of
the Operations; or
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36.1.14 the failure of the DBFO Co fully to perform its obligations
under Clause 7.3.4 or Clause 7.3.5 by the date for such
performance specified in such Clause,
provided that:
(A) none of the events or circumstances set out in Clause 36.1.5,
36.1.6 or 36.1.7 shall constitute an Event of Default to the
extent that Penalty Points are awarded in respect thereof
under Clause 24.2; and
(B) the appointment of any receiver or manager or administrative
receiver of the whole or any part of the assets of the DBFO Co
shall not constitute an Event of Default under Clause 36.1.1.2
if on the date of such appointment the Intercreditor Agent
delivers a Step-In Bond to the Secretary of State and the
Step-In Obligor gives to the Secretary of State a Step-In
Undertaking in accordance with the terms of Clause 4.2.3 of
the Direct Agreement, provided further that if the
Intercreditor Agent on behalf of the Credit Providers fails to
observe or perform in full any of its material obligations and
liabilities under the Direct Agreement or the Step-In Obligor
fails to perform in full any of its material obligations and
liabilities under such Step-In Undertaking, or the Step-In
Period shall be terminated (whether by expiry or otherwise),
and, in any such case, such appointment is continuing, then
such appointment shall constitute an Event of Default under
Clause 36.1.1.2 with effect from the time of such failure by
the Intercreditor Agent or the Step-In Obligor (as the case
may be) or such termination of the Step-in Period.
36.2 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.
36.3 Remedies
Upon the occurrence of an Event of Default, and so long as the same is
continuing or there are any outstanding liabilities owing by the DBFO
Co to the Secretary of State arising as a consequence of 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 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 (provided that
where the Secretary of State has given.a Termination Notice pursuant to
Clause 3.1 of the Direct Agreement any or all of the following rights
or remedies shall continue to be exercisable, subject to the terms of
the Direct Agreement, notwithstanding that such Event of Default has
ceased to be continuing or there are no longer any such outstanding
liabilities owing by the DBFO Co to the Secretary of State):
36.3.1 subject to Clause 36.3A, suspend payment of the DBFO Payments
and any other payments otherwise due hereunder or retain any
amount due from the Secretary of State to the DBFO Co
howsoever arising;
36.3.2 apply any sums standing to the credit of the Retention Account
in accordance with Clause 17.7.11;
36.3.3 without determining this Agreement, by notice in writing
having immediate effect suspend performance by the DBFO Co of
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 it
obligations under this Agreement and thereafter himself
perform or procure a third party to perform such part of the
functions for such period, and in such event the provisions of
Clause 36.4 shall apply;
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36.3.4 in the case of the Events of Default referred to in Clauses
36.1.1 to 36.1.4 (both inclusive), Clause 36.1.8 and Clause
36.1.6.2 and any other Event of Default arising as a result of
a breach of this Agreement by the DBFO Co which is incapable
of remedy, terminate the Agreement in its entirety by notice
in writing having immediate effect;
36.3.5 in the case of any Event of Default other than those referred
to in Clause 36.3.4, serve notice of default on the DBFO Co
requiring the DBFO Co at the DBFO Co's option either:
36.3.5.1 to remedy the breach or breaches referred to
in such notice of default within 60 days of
such notice (or such longer period as may be
agreed by the Secretary of State in his
absolute discretion); or
36.3.5.2 to put forward within 21 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 36.5 shall apply.
36.3A Suspension of Payments
36.3A.1 The rights of the-Secretary of State under Clause 36.3.1
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 36.3A.
36.3A.2 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 36.3A.4 if performance of
the Service Obligations is subsequently resumed in full or
in part, as the case may be.
36.3A.3 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 prior deduction of any costs
of 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).
36.3A.4 If and for so long as neither Clause 36.3A.2 nor Clause
36.3A.3 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:
36.3A.4.1 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 36.3A.4.2.2 exceeds
the amount of the Accrued Relevant Payments
(as defined in Clause 36.3A.4.2.1) the
Secretary of State shall be entitled to
deduct the amount of such excess from such
Relevant Payments until discharged); and
36.3A.4.2 subject to the DBFO Co performing all of the
Service Obligations in full continuously and
at all times for a period of not less than
one month after such
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resumption of such performance, the
Secretary of State shall pay to the DBFO Co
an amount equal to the lesser of:
36.3A.4.2.1 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
(as determined by the Secretary
of State) 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
36.3A.4.2.2 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 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.
36.3A.5 In this Clause 36.3A "Service Obligations" means all or
any of the DBFO Co's obligations under this Agreement
falling due to be performed at the relevant time, as
determined by the Secretary of State, in respect of or in
connection with the operation and maintenance of the
Project Facilities (including without limitation the
performance of any Maintenance Works and any Routine
Maintenance) and the conduct of any other works or
operations on or in relation to the Project Facilities,
the Site or the Adjacent Areas and any other obligation of
the DBFO Co under this Agreement arising after the issue
of the Permit to Use.
36.3A.6 Notwithstanding the foregoing provisions of this Clause 36.3A:
36.3A.6.1 if, during the subsistence of an Event of
Default, the DBFO Co considers that, solely
by reason of any suspension or retention of
Relevant Payments under Clause 36.3A.2 or
36.3A.4, the DBFO Co has insufficient
financial resources from which to fund
Relevant O&M Costs, the DBFO Co may serve a
written notice to such effect on the
Secretary of State, together with
particulars supporting such assertion;
36.3A.6.2 the Secretary of State shall, within 15 days
after receipt of such notice (and subject to
receipt of such further supporting
particulars as he shall reasonably require)
notify the DBFO Co whether or not he agrees
that the DBFO Co has insufficient financial
resources from which to fund Relevant O&M
Costs; if the Secretary of State does not so
agree, either Party may refer the matter for
determination under the Disputes Resolution
Procedure;
36.3A.6.3 subject to agreement or determination of the
matters referred to in Clauses 36.3A.6.1 and
36.3A.6.2, the Secretary of State shall, in
respect of each month during the Partial
Payment Period, pay to the DBFO Co the
Permitted O&M Payment in respect of such
month, such payment to be made subject to
and in accordance with the following
provisions of this Clause 36.3A.6 and,
subject to such provisions, Clause 30;
36.3A.6.4 the DBFO Co shall promptly submit to the
Department's Representative all such proof
of expenditure in respect of the Relevant
O&M Costs in respect of each month during
the Partial Payment Period as the
Department's Representative shall require
for the purpose of determining the amount of
the Permitted O&M Payment for such month;
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36.3A.6.5 (subject to his having received from the
DBFO Co such proof of expenditure as the
Department's Representative shall have
required for such purposes in accordance
with Clause 36.3A.6.4) the Department's
Representative shall determine the Relevant
O&M Costs and the amount of the Permitted
O&M Payment in respect of each month during
the Partial Payment Period as soon as
reasonably practicable following the end of
that month;
36.3A.6.6 prior to the malting of any Permitted O&M
Payment, the Secretary of State and the DBFO
Co shall procure that there is established
an account (the "O&M Account") in the joint
names of the Secretary of State and the DBFO
Co with a bank located in the United
Kingdom, the mandate for which shall include
a condition that no cheques or other
payments may be drawn against or debited to
the O&M Account without the prior written
authority or countersignature of a duly
authorised representative of the
Department's Representative;
36.3A.6.7 all Permitted O&M Payments shall be paid by
the Secretary of State directly to the O&M
Account for application in accordance with
the provisions of this Clause 36.3A;
36.3A.6.8 the amount of the Permitted O&M Payment in
respect of a month which is credited to the
O&M Account shall be applied in or towards
the discharge (to the extent of the
Permitted O&M Payment) of the Relevant O&M
Costs for such month, provided that no
cheques or other payments may be drawn
against or debited to the O&M Account
without the prior written authority or
countersignature of the Department's
Representative;
36.3A.6.9 the Department's Representative may only
withhold his authority or countersignature
for the purposes of Clause 36.3A.6.6 or
Clause 36.3A.6.8 if:
36.3A.6.9.1 the relevant cheque or other
payment is not being drawn
against or debited to the O&M
Account in or towards the
discharge (to the extent of the
Permitted O&M Payment) of the
Relevant O&M Costs for the
relevant month; or
36.3A.6.9.2 the proposed payee of the
relevant cheque or other
payment is not the payee
identified in the proof of
expenditure provided to the
Department's Representative
under Clause 36.3A.6.4;
36.3A.6.10 without prejudice to Clause
41.2.1, and notwithstanding
Clause 41.2.2, the DBFO Co
shall not assign or transfer
any interest in, or create or
allow to subsist any
Encumbrance, trust or other
interest in or over, the O&M
Account or any Permitted O&M
Payment or any interest in
either of them;
36.3A.6.11 for the avoidance of doubt,
neither the suspension or
retention of any Relevant
Payments under Clauses 36.3A.2
and 36.3A.4 nor the limitation
of the amount of any
Provisional Monthly Payment in
accordance with the foregoing
provisions of this Clause
36.3A.6 shall in any way
release, diminish or affect, or
relieve the DBFO Co from, any
of the DBFO Co's obligations
and liabilities under this
Agreement;
36.3A.6.12 in determining whether, for the
purposes of this Clause
36.3A.6, the DBFO Co has
insufficient financial
resources from which to fund
Relevant O&M Costs, regard
shall be had only to amounts
standing to the credit of:
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(a) the Operating Account to
the extent that such funds
represent Included Funds;
(b) the Maintenance Reserve
Account to the extent that
such funds represent funds
for the Relevant O&M Costs
to which this Clause
36.3A.6 refers (the
certificate of the
Intercreditor Agent as to
such amount being
conclusive in the absence
of manifest error); and
(c) any accounts which the DBFO
Co may from time to time
hold other than the Cash
Collateral Account, the EIB
Collateral Accounts, and
other accounts which are
not Project Accounts at the
time in question for the
purposes of the
Intercreditor Agreement.
36.3A.6.13 For the purposes of this Clause
36.3A.6:
"Cash Collateral Account" has
the meaning given in the
facility agreement referred to
in Clause 2.3.1.3.2;
"Included Funds" means the
amount, for the time being,
standing to the credit of the
Operating Account to the extent
that the DBFO Co would be
permitted to withdraw such
funds on the next Payment Date
in accordance with paragraph
(xx) or (xxi) of Clause 16.3
and Clause 16.7 of the
Intercreditor Agreement;
"Intercreditor Agreement" means
the intercreditor agreement
referred to in Clause
2.3.1.3.19;
"Partial Payment Period" means
the period:
(a) commencing on the date
agreed or determined in
accordance with Clause
36.3A.6.2 to be the first
date following the relevant
suspension or retention of
Relevant Payments on which
the DBFO Co had
insufficient financial
resources from which to
finance Relevant O&M Costs;
and
(b) ending on the date which is
the earlier of:
(i) the date on which the
Secretary of State
resumes the making of
Relevant Payments
under Clause
36.3A.4.1; and
(ii) the Termination Date;
"Permitted O&M Payment" means
an amount determined by the
Department's Representative as
being equal to the lesser of:
(a) an amount equal to one
twelfth of the Projected
Relevant O&M Costs for the
Contract Year in which the
first day of such month
occurs; and
(b) the amount of the Relevant
O&M Costs in respect of
such month;
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less, in either case, the
amount of any financial
resources available to the DBFO
Co for the purposes of funding
any of the Relevant O&M Costs
in respect of such month;
"Projected Relevant O&M Costs"
means, in respect of any
Contract Year, the projected
amount of routine maintenance
costs and winter maintenance
costs in respect of such
Contract Year as shown in the
Financial Model as in force at
the date of this Agreement;
"Relevant O&M Costs" means, in
respect of any month, the
aggregate amount (as determined
by the Department's
Representative), excluding VAT,
of:
(a) costs properly and
prudently incurred by the
DBFO Co in the carrying out
of Routine Maintenance in
respect of the Project Road
during such month; and
(b) reasonable administrative
and staff costs properly
and prudently incurred by
the DBFO Co in respect of
such month for the purposes
of carrying out the Routine
Maintenance referred to in
paragraph (a) above;
and the following terms have
the meanings ascribed to them
in the Intercreditor Agreement:
(a) EIB Collateral
Accounts;
(b) Intercreditor Agent;
(c) Maintenance Reserve
Account;
(d) Operating Account;
(e) Payment Date; and
(f) Project Accounts.
36.4 Partial Suspension
In the case of a partial suspension of the performance by the DBFO Co
under this Agreement in accordance with Clause 36.3.3, the DBFO Co
shall (save to the extent that the Secretary of State is reimbursed in
respect of such costs by means of any deduction from payments made by
him under Clause 36.3A.3 or Clause 36.3A.4) reimburse the Secretary of
State for all costs reasonably 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).
36.5 Termination in Full
36.5.1 Where the DBFO Co puts forward a programme in accordance with
Clause 36.3.5.2 the Secretary of State shall have 28 days
within which to notify the DBFO Co that it 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 it does not accept such programme as being reasonable,
the parties shall endeavour
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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.
36.5.2 If:
36.5.2.1 the breach or breaches notified in a notice of
default served under Clause 36.3.5 is or are not
remedied:
36.5.2.1.1 before the expiry of the period referred
to in Clause 36.3.5.1 (if applicable); or
36.5.2.1.2 where the DBFO Co puts forward a programme
pursuant to Clause 36.3.5.2 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
36.5.2.2 such programme as is put forward by the DBFO Co
pursuant to Clause 36.3.5.2 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.
36.6 Savings
The rights of the Secretary of State under this Clause 36 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.
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37. TERMINATION BY THE DBFO CO
37.1 DBFO Co Termination Events
The following are DBFO Co Termination Events:
37.1.1 the Government sequesters, requisitions or otherwise seizes
the Project Facilities or any, or any material part of any, of
them otherwise than pursuant to this Agreement or otherwise
than as a result of any default by the DBFO Co;
37.1.2 the Secretary of State shall fail to issue the Certificate of
Commencement within 14 days after the date of receipt by the
Secretary of State of the DBFO Co's notice under Clause 7.2;
37.1.3 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;
37.1.4 the Secretary of State 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);
37.1.5 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:
37.1.5.1 any department, office, instrumentality or agency of
the Government; or
37.1.5.2 any person whose obligations under this Agreement are
guaranteed by the Government or any department,
office, instrumentality or agency of the Government;
37.1.6 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; or
37.1.7 the failure by the Secretary of State to take any action which
gives rise to the circumstances referred to in Clause 25.5.3.
37.2 Termination Procedure
37.2.1 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.
37.2.2 Upon a termination of this Agreement pursuant to Clause 37.2.1
(other than a termination for the reason set out in Clause
37.1.7), the DBFO Co shall be entitled to compensation in
accordance with Clause 40 [Compensation on Termination].
37.2.3 The DBFO Co may give notice to the Secretary of State
terminating this Agreement only in accordance with the
provisions of this Clause 37.2, Clause 38.1.1.1, Clause 38.4
or Clause 38.5.
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38. NON-DEFAULT TERMINATION
38.1 Termination for Eligible Force Majeure
38.1.1 Where an occurrence of Eligible Force Majeure renders the
performance of this Agreement financially or practicably
impossible or has a fundamental effect on the rights or
obligations of either of the Parties:
38.1.1.1 in either case for a continuous period of more than
18 months, either Party may, following consultation
for a period of not less than a further 90 days to
reach a solution acceptable to both Parties, and so
long as such circumstances continue, terminate this
Agreement by notice to the other having immediate
effect; or
38.1.1.2 the Secretary of State may at any time after such
occurrence, but following consultation for a period
of not less than 90 days to reach a solution
acceptable to both Parties, and so long as such
circumstances continue, terminate this Agreement by
notice to the DBFO Co having immediate effect.
38.1.2 In the event of any termination pursuant to Clause 38.1.1.1,
the Secretary of State shall pay to the DBFO Co the amounts
determined in accordance with Clause 40.3.
38.1.3 In the event of any termination by the Secretary of State
pursuant to Clause 38.1.1.2, the Secretary of State shall pay
to the DBFO Co the amounts determined in accordance with
Clause 40.3 and Clause 40.4.
38.2 Expiry of Term
This Agreement shall terminate automatically upon the expiry of the
period of 30 years from the Commencement Date (or such other period as
may be substituted therefor in accordance with Clause 3 or Clause
33.4.4) unless it shall have previously been terminated in accordance
with the provisions of this Agreement.
38.3 Termination for Failure to Provide Access to DBFO Co
38.3.1 If:
38.3.1.1 there shall be a material breach by the Secretary of
State of the provisions of Clause 8.1 [Access for
DBFO Co] giving rise to a Compensation Event;
38.3.1.2 the DBFO Co shall be entitled to be compensated in
respect of such Compensation Event under the General
Change Procedure; and
38.3.1.3 the period in respect of which such compensation is
payable by the Secretary of State exceeds 180 days in
aggregate,
then the Secretary of State may at any time after such 180 day
period terminate this Agreement by notice to the DBFO Co
having immediate effect.
38.3.2 In the event of any termination pursuant to Clause 38.3.1, the
Secretary of State shall pay to the DBFO Co the amounts
determined in accordance with Clause 40.2 or Clause 40.3, as
the case may be, and Clause 40.4.
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38.4 Termination for Failure to Exercise Powers
If the Parties are unable to reach agreement within the period of 90
days referred to in Clause 25.5.4, then either Party may terminate this
Agreement by notice to the other, provided that the DBFO Co shall not
be entitled to any compensation as a consequence of any such
termination.
38.5 Termination on Relevant Change in Law
38.5.1 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.
38.5.2 In the event of any termination pursuant to Clause 38.5.1, the
Secretary of State shall pay to the DBFO Co the amounts
determined in accordance with Clause 40.3 and Clause 40.4.
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39. EFFECT OF TERMINATION
39.1 Step-in Rights
39.1.1 Without prejudice to Clause 24.5 [Step-In Rights], in the
event that the Secretary of State has given notice of default
or notice of termination under Clause 36.3, Clause 36.5,
Clause 38.1, Clause 38.3, Clause 38.4 or Clause 38.5 or the
DBFO Co has given notice of termination under Clause 37.2,
Clause 38.1.1.1, Clause 38.4 or Clause 38.5 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, then:
39.1.1.1 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
outstanding obligations or liabilities under this
Agreement; and
39.1.1.2 whether or not he exercises the right under Clause
39.1.1.1, 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, and (in the case of a notice
of default or notice of termination under Clause 36.3
or Clause 36.5) 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.
39.1.2 For the avoidance of doubt, subject to the exercise by the
Secretary of State of any right under Clause 39.1.1, the
Parties shall continue to perform their obligations under this
Agreement notwithstanding the giving of any notice of default
or notice of termination until the termination of this
Agreement becomes final in accordance with the provisions of
this Clause 39.
39.2 Disputed Termination
39.2.1 Notwithstanding the provisions of Clauses 36.3 [Remedies],
36.5 [Termination in Full], 37.2 [Termination Procedure], 38.1
[Termination for Eligible Force Majeure], 38.3 [Termination
for Failure to Provide Access to DBFO Co], 38.4 [Termination
for Failure to Exercise Powers] and 38.5 [Termination on
Relevant Change in Law], 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 this Agreement has been wrongfully
terminated to the Disputes Resolution Procedure, termination
of this Agreement shall not take effect unless and until it is
finally determined in accordance with the Disputes Resolution
Procedure that such termination is not wrongful.
39.2.2 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 39.2.1, then either Party may (within
the 14 days period referred to in Clause 39.2.1) 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.
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39.2.3 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 39.1.1.1, 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.
39.3 Savings
39.3.1 Save as otherwise expressly provided in this Agreement:
39.3.1.1 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
39.3.1.2 termination of this Agreement shall not affect the
continuing rights and obligations of the DBFO Co and
the Secretary of State under Clauses 14.7 [Removal of
Signs], 18 [Insurance], 27.2 [Claims Against Third
Parties], 29 [Calculation of Payments], 30 [Invoicing
and Payment], 35 [Indemnities], 38.1 [Termination for
Eligible Force Majeure], 38.3 [Termination for
Failure to Provide Access to DBFO Co], 38.4
[Termination for Failure to Exercise Powers], 38.5
[Termination on Relevant Change in Law], 40
[Compensation on Termination], 44 [Taxes], 45
[Intellectual Property] and 46 [Confidentiality],
Schedules 14 [Records and Reports] and 15 [Disputes
Resolution Procedure] and this Clause 39 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 39.3, 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.
39.3.2 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.
39.4 Transfer of Assets, etc
On the termination of this Agreement (other than by a novation of this
Agreement to a Substitute Entity as defined in, and in accordance with,
the Direct Agreement) or, in the case of Clause 39.4.5, on and for the
duration of the exercise by the Secretary of State of his step-in
rights under Clause 39.1.1:
39.4.1 the rights of access under Clause 8.1 [Access for DBFO Co]
shall automatically terminate;
39.4.2 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:
39.4.2.1 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
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all materials on the Site or adjacent thereto shall
remain available to him for the purposes of
completing the Works; and
39.4.2.2 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;
39.4.3 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 38.2 shall be in the state
required in accordance with Clause 17 [Handback];
39.4.4 if the Secretary of State so elects, each Relevant O&M
Contract in effect at the Termination Date shall be novated to
him 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;
39.4.5 the Secretary of State shall have an option to purchase or
(where the Secretary of State has exercised his step-in rights
under Clause 39.1.1) hire from the DBFO Co or any of its
Associated Companies at a fair market value (as between a
willing vendor and willing purchaser, 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 or any of its Associated
Companies and reasonably required in connection with the
operation and maintenance of the Project Facilities;
39.4.6 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;
39.4.7 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;
39.4.8 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; and
39.4.9 the DBFO Co shall deliver to the Secretary of State or his
designee the records referred to in Clause 23.4.3.
39.5 Handover
On the termination of this Agreement for any reason:
39.5.1 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;
39.5.2 the DBFO Co shall as soon as practicable remove from the Site,
the Adjacent Areas and, without prejudice to the terms of the
Lease, the Maintenance Depot, all Plant, materials,
Construction Plant, temporary buildings, road vehicles, spare
parts and other property not required by the Secretary of
State pursuant to Clause 39.4.2 or acquired by the Secretary
of State pursuant to Clause 39.4.5, 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 (unless caused by his gross
negligence or wilful default)) remove
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and sell any such property and shall hold any proceeds less
all costs incurred to the credit of the DBFO Co;
39.5.3 the DBFO Co shall within 1 week of the Termination Date
deliver to the Department's Representative:
39.5.3.1 keys to all traffic sign housings; and
39.5.3.2 lifting keys for all types of chamber covers; and
39.5.4 the DBFO Co shall as soon as practicable vacate the Site, the
Adjacent Areas and, without prejudice to the terms of the
Lease, the Maintenance Depot and shall leave the Site, the
Adjacent Areas and, without prejudice to the terms of the
Lease, the Maintenance Depot in a clean and orderly condition.
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40. COMPENSATION ON TERMINATION
40.1 Termination Accounts
40.1.1 The DBFO Co shall procure that not later than 90 days
after termination of this Agreement pursuant to Clause 37
[Termination by the DBFO Co] (other than a termination for
the reason set out in Clause 37.1.7), Clause 38.1
[Termination for Eligible Force Majeure], Clause 38.3
[Termination for Failure to Provide Access to DBFO Co] or
Clause 38.5 [Termination on Relevant Change in Law] (or
such longer period as may be agreed between the
Department's Representative 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 a report signed by
the DBFO Co's auditors in respect of the amount of the
deductions to be made pursuant to Clause 40.3.2, which
such report shall for the purposes of this Clause 40 be
deemed to form part of the Termination Accounts.
40.1.2 The Termination Accounts shall be presented to the
Department's Representative for review. In order to enable
the Department's Representative 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 Representative 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 Representative 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 Representative and its or the Secretary of
State's professional advisers with regard to such review.
40.1.3 If the Department's Representative 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 Representative
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.
40.2 [Clause not used].
40.3 Termination
40.3.1 If the DBFO Co terminates this Agreement pursuant to
Clause 37 [Termination by the DBFO Co] (other than a
termination for the reason set out in Clause 37.1.7) as a
consequence of the occurrence of a DBFO Co Termination
Event or this Agreement is terminated by either Party
pursuant to Clause 38.1.1 or Clause 38.5.1 or by the
Secretary of State pursuant to Clause 38.3.1 as a result
of the occurrence of an event or circumstance giving rise
to such termination after the Commencement Date, then
subject to the provisions of Clauses 40.3.2 to 40.3.7
(inclusive) the Secretary of State shall pay to the DBFO
Co an amount, as determined from the Termination Accounts,
equal to the aggregate of:
40.3.1.1 the Relevant Funding Liabilities; and
40.3.1.2 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.
40.3.2 There shall be excluded from the amount payable pursuant
to Clause 40.3.1:
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40.3.2.1 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;
40.3.2.2 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;
40.3.2.3 all liabilities and obligations arising out
of agreements or arrangements entered into
by the DBFO Co prior to such termination, 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;
40.3.2.4 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 or the Funders:
40.3.2.4.1 regarding any claim or
potential claim against the
Secretary of State arising from
or in connection with such
termination; or
40.3.2.4.2 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; and
40.3.2.4.3 in the case of amounts due to
advisers or consultants
employed by the Funders, all
such amounts in excess of
(pound)500,000;
40.3.2.5 all liabilities and obligations of the DBFO
Co arising as a result of a breach of a
contract relating to the Project (except any
breach of contract arising as a result of
termination of this Agreement);
40.3.2.6 (without prejudice to Clause 40.3.2.4) 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:
40.3.2.6.1 such costs and expenses were
not properly incurred; or
40.3.2.6.2 such costs and expenses were
properly incurred but exceed a
reasonable amount.
40.3.3 For the purposes of this Clause 40.3, "Relevant Funding
Liabilities" shall, subject to Clauses 40.3.4 and 40.3.7,
mean:
40.3.3.1 if at the Termination Date there are no
Funding Agreements other than Approved
Funding Agreements, all outstanding amounts
owing by the DBFO Co to the Funders under
the Approved Funding Agreements at the
Termination
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Date (having taken account of all proceeds
of enforcement of security which have
previously been applied in reduction
thereof) and all amounts owing to such
Funders under such Approved Funding
Agreements which arise from such termination
(including amounts owing in respect of any
liabilities and obligations to such Funders
under such Approved Funding Agreements
arising from the early repayment of monies
and any interest which accrues under such
Approved Funding Agreements from the
Termination Date to the date of payment
under this Clause 40.3 and swap agreement
termination costs); and
40.3.3.2 if at the Termination Date there are any
Funding Agreements other than Approved
Funding Agreements, an amount equal to the
lesser of:
40.3.3.2.1 all outstanding amounts owing
by the DBFO Co to the Funders
under the Funding Agreements at
the Termination Date (having
taken account of all proceeds
of enforcement of security
which have previously been
applied in reduction thereof)
and all amounts owing to such
Funders under such Funding
Agreements which arise from
such termination (including
amounts owing in respect of any
liabilities and obligations to
such Funders under such Funding
Agreements arising from the
early repayment of monies and
any interest which accrues
under such Funding Agreements
from the date of termination of
this Agreement to the date of
payment under this Clause 40.3
and swap agreement termination
costs); and
40.3.3.2.2 all outstanding amounts which
would have been owing by the
DBFO Co to the Funders under
the Approved Funding Agreements
at the Termination Date (having
taken account of all proceeds
of enforcement of security
which have previously been
applied in reduction of amounts
outstanding under the Funding
Agreements) and all amounts
which would have been owing to
such Funders under the Approved
Funding Agreements and which
would have arisen from such
termination (including amounts
which would have been owing in
respect of any liabilities and
obligations to such Funders
under the Approved Funding
Agreements arising from the
early repayment of monies and
any interest which would have
accrued under the Approved
Funding Agreements from the
Termination Date to the date of
payment under this Clause 40.3
and swap agreement termination
costs) provided that for the
purpose of determining such
amounts the following
assumptions shall apply, namely
that:
40.3.3.2.2.1 (without prejudice
to Clause 2.4.1)
the Approved
Funding Agreements
remained in force
at the Termination
Date upon the
terms and
conditions
approved by the
Secretary of
State;
40.3.3.2.2.2 no Funding
Agreements were
entered into in
addition to the
Approved Funding
Agreements; and
40.3.3.2.2.3 the aggregate
principal amounts
drawn down under
the Approved
Funding Agreements
prior to the
Termination Date
were those
projected as being
drawn down in the
Financial Model as
in force at the
date of this
Agreement, as
amended to reflect
the terms of any
Approved Funding
Agreement entered
into after the
date of this
Agreement,
together with (i)
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any amount which
would have been
drawn down under
any standby or
similar facility
contained in any
Approved Funding
Agreement in order
to pay for
escalation in the
contract price
under the
Construction
Contract as a
consequence of any
overall increase
in the Index
referred to in
Annex 2 of Part 1
of Schedule 9
above that shown
in the Financial
Model as in force
at the date of
this Agreement and
(ii) any amount
which had actually
been drawn down
under any standby
or similar
facility contained
in any Approved
Funding Agreement
as at the
Termination Date.
40.3.4 The following provisions of this Clause 40.3.4 shall apply
notwithstanding the provisions of any Funding Agreement,
and notwithstanding that any Funding Agreement is an
Approved Funding Agreement:
40.3.4.1 in calculating the amount of any interest
(including, without limitation, any
capitalised interest) comprised in the
Relevant Funding Liabilities, the percentage
rate per annum by reference to which such
interest shall be calculated shall not
exceed the lesser of:
40.3.4.1.1 the relevant Applicable
Interest Rate(s); and
40.3.4.1.2 the rate applying under the
terms of the relevant Funding
Agreement; and
40.3.4.2 in the case of any Funding Agreement which
is a Hedging Agreement, in calculating the
Relevant Funding Liabilities in respect of
such Funding Agreement, any actual or
notional percentage rate of interest per
annum payable or expressed to be payable by
the DBFO Co under or in relation to such
Funding Agreement or by reference to which
such Relevant Funding Liabilities would be
calculated shall not exceed the lesser of:
40.3.4.2.1 the relevant Applicable
Interest Rate(s); and
40.3.4.2.2 the actual or notional rate
applying under the terms of
such Funding Agreement.
40.3.5 The following provisions of this Clause 40.3.5 shall apply
in any case where amounts are payable by the Secretary of
State to the DBFO Co under this Clause 40.3:
40.3.5.1 if any amount payable by the Secretary of
State to the DBFO Co under this Clause 40.3
is subject to Tax (in whole or in part), the
Secretary of State shall pay to the DBFO Co
such additional amount or amounts as will
put the DBFO Co in the same after-tax
position as it would have been in had the
payment not been subject to Tax, provided
that in determining the after-tax position
of the DBFO Co, no account shall be taken,
other than in accordance with Clause
40.3.5.2, of any Tax Reliefs which are or
may be available to the DBFO Co (whether or
not following any claim or election by the
DBFO Co);
40.3.5.2 if the DBFO Co is also entitled to receive
additional compensation under Clause 40, the
DBFO Co shall use all reasonable endeavours
to reduce or eliminate the Tax for which it
is accountable in respect of sums payable
under this Clause
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40.3 whether by the use of Tax Reliefs, the
making or withdrawing of any claims or
otherwise, provided always that:
40.3.5.2.1 the DBFO Co shall be entitled
to treat all available Tax
Reliefs as allocated in the
first place so as to reduce or
eliminate any Tax for which it
is accountable in respect of
any additional compensation to
which it is entitled in
accordance with Clause 40.4.2
or Clause 40.4.3 before
treating them, or any of them
which remains unutilised, as
allocated so as to reduce or
eliminate the Tax in respect of
sums payable under this Clause
40.3; and
40.3.5.2.2 the obligations of the DBFO Co
under this Clause 40.3.5.2
shall not require it to revoke,
disclaim or withdraw any claim
or surrender made by it or
agreed to be made by it, prior
to the termination of this
Agreement, in respect of any
Tax Reliefs.
40.3.6 The Secretary of State shall be entitled to deduct from
the amount payable pursuant to Clause 40.3.1:
40.3.6.1 in the case of Relevant Funding Liabilities,
an amount equal to the proceeds of any
insurances in respect of the Project
received or to be received by any of the
Funders at or at any time following the
termination which gives rise to the
obligation to make payment pursuant to
Clause 40.3.1 and which, had they been
received before the date of such
termination, the Funders would have been
entitled, upon receipt, to apply in and
towards settlement of amounts which would
otherwise be Relevant Funding Liabilities;
and
40.3.6.2 in the case of the liabilities and
obligations referred to in Clause 40.3.1.2,
an amount equal to the proceeds of any
insurances in respect of such liabilities
and obligations received or to be received
by the DBFO Co at or at any time following
the termination which gives rise to the
obligation to make payment pursuant to
Clause 40.3.1.
40.3.7 Notwithstanding any other provision of this Agreement,
unless otherwise agreed by the Secretary of State in his
absolute discretion (and, for the avoidance of doubt, the
exercise of such discretion may not be referred to the
Disputes Resolution Procedure or otherwise disputed or
challenged), the aggregate amount payable by the Secretary
of State under Clause 40.3.1 in respect of the Relevant
Funding Liabilities shall not exceed the aggregate amount
which would have been owing at the Termination Date under
the Original Funding Agreements by more than
(pound)50,000,000.
40.4 Additional Compensation
40.4.1 If Clause 40.3 shall apply as a consequence of the
termination of this Agreement pursuant to Clause 37
[Termination by the DBFO Co] (other than a termination for
the reason set out in Clause 37.1.7), Clause 38.1.1.2,
Clause 38.3.1 or Clause 38.5.1, the Secretary of State
shall in addition to any amounts payable pursuant to
Clause 40.3 pay to the DBFO Co as at the date of
termination of this Agreement a sum calculated in
accordance with this Clause 40.4. The amount payable by
the Secretary of State shall be calculated:
40.4.1.1 in the case of a DBFO Co Termination Event
referred to in any of Clauses 37.1.1,
37.1.2, 37.1.4 and 37.1.5, as at the Working
Day immediately preceding the date upon
which such DBFO Co Termination Event occurs;
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40.4.1.2 in the case of a DBFO Co Termination Event
referred to in Clauses 37.1.3 and 37.1.6, as
at the Working Day immediately preceding the
date upon which the DBFO Co gives notice
terminating this Agreement;
40.4.1.3 in the case of termination of this Agreement
by the Secretary of State pursuant to Clause
38.3.1, as at the Working Day immediately
preceding the date upon which the Secretary
of State gives notice terminating this
Agreement; and
40.4.1.4 in the case of termination of this Agreement
by either Party pursuant to Clause 38.5.1,
as at the Working Day immediately preceding
the date upon which the relevant Party gives
notice terminating this Agreement.
40.4.2 If Clause 40.3 shall apply as a consequence of the
termination of this Agreement pursuant to Clause 37
[Termination by the DBFO Co] (other than a termination for
the reason set out in Clause 37.1.7), Clause 38.1.1.2,
Clause 38.3.1 or Clause 38.5.1 by reason of the event or
circumstance giving rise to such termination occurring
before the first anniversary of the date of the Completion
Certificate, the amount payable under Clause 40.4.1 shall
be equal to the aggregate of
40.4.2.1 all Eligible Equity at the Termination Date;
and
40.4.2.2 an amount equal to interest on each amount
of such Eligible Equity for the Commitment
Period relating thereto calculated at the
rate of 6 per cent per annum above Average
LIBOR (such interest to accrue from day to
day and to be payable on the basis of a year
of 365 days).
For the purposes of this Clause 40.4.2:
"Commitment Period" means, in respect of each amount of
Eligible Equity, the period commencing on the later of (i)
the date on which the relevant amount of Eligible Equity
was subscribed or advanced to the DBFO Co and (ii) the
date of this Agreement, and ending on the Termination
Date.
"Eligible Equity" means all or any of the following (but
not exceeding in aggregate the sum of (pound)22,500,000
unless the Secretary of State shall otherwise agree in
writing):
(a) the aggregate unredeemed amount subscribed
for any Ordinary Shares of the DBFO Co; and
(b) the aggregate outstanding principal amount
of all loans (including any interest
capitalised in accordance with the terms of
the relevant agreements in respect of such
loans) advanced to the DBFO Co for the
purpose of carrying out the Operations and
owing to the Sponsors or any of their
Associated Companies or Yorkshire Holdings.
"LIBOR" means the percentage rate of interest per annum
(as determined by the Secretary of State), being the rate
per annum equal to the arithmetic mean of the rates which
are quoted as of 11 a.m. (London time) on each
Determination Date for deposits in Sterling of comparable
amount to the relevant amount of Eligible Equity on page
"LIBP" of the Reuter Monitor Money Rates Service (or any
other page which may replace page "LIBP" for the purpose
of displaying London interbank offered rates for Sterling
of leading reference banks) for a term of six months (or,
if six month periods are not quoted on page LIBP, any
period quoted on that page which the Secretary of State
determines to be substantially the same).
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"Determination Date" means the first Working Day of each
Commitment Period and the first Working Day of each of the
following consecutive periods of six months throughout
each Commitment Period.
"Average LIBOR" means, in relation to each amount of
Eligible Equity, a percentage rate per annum equal to the
aggregate LIBOR Amounts in respect of the Commitment
Period relating to such amount divided by the number of
weeks in such Commitment Period.
"LIBOR Amount" means, in respect of each LIBOR
Determination Period, the product of LIBOR as of the
Determination Date for that Period and the number of weeks
in that Period.
"LIBOR Determination Period" means, in respect of each
Determination Date, the period of six months commencing on
that Date or, in the case of the final Determination Date,
the period from that Date until the Termination Date.
40.4.3 If Clause 40.3 shall apply as a consequence of the
termination of this Agreement pursuant to Clause 37
[Termination by the DBFO Co] (other than a termination for
the reason set out in Clause 37.1.7), Clause 38.1.1.2,
Clause 38.3.1 or Clause 38.5.1 by reason of the event or
circumstance giving rise to such termination occurring on
or after the first anniversary of the date of the
Completion Certificate, the amount payable under Clause
40.4.1 shall be equal to the Projected NPV (determined on
the basis and in accordance with the procedure set out in
Clause 40.4.4).
40.4.4 In the circumstances referred to in Clause 40.4.3:
40.4.4.1 the Parties shall, within the period of 30
days after the Termination Date, jointly
commission the Determination Period Report;
40.4.4.2 the Parties shall within such period seek to
agree upon a procedure by which the matters
which are the subject of the Determination
Period Report are to be determined by the
Determination Period Expert and, failing
such agreement within such period, the
procedure for such determination shall be
that which is contained in paragraph 6 of
Schedule 15 (as if the Determination Period
Expert were an Expert for the purposes of
such Schedule);
40.4.4.3 the determination of the Determination
Period Expert shall be final and binding
upon the Parties, save in the case of fraud,
manifest error or any failure by the
Determination Period Expert to disclose any
conflicting interest or duty;
40.4.4.4 within 60 days after the publication of the
Determination Period Report, the Secretary
of State shall, subject to the other
provisions of this Clause 40, pay to the
DBFO Co an amount equal to the Projected
NPV.
For the purposes of this Clause 40.4.4:
"Determination Period" means the period from the
Termination Date to the Expiry Date.
"Determination Period Expert" means an independent expert
whose appointment is agreed by the Parties (or, failing
such agreement within 30 days after the Termination Date,
appointed in accordance with the provisions of paragraphs
3 and 4 of Schedule 15, as if such independent expert were
to be an Expert under the Disputes Resolution Procedure).
"Determination Period Report" means a report by the
Determination Period Expert containing his determination
of:
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(a) the Projected Traffic;
(b) the Projected Operating Costs; and
(c) the Required Rate of Return.
"Projected NPV" means:
(a) the Projected Net Operating Revenue;
less
(b) the amount of the Relevant Funding
Liabilities (but excluding (i) amounts owing
to the relevant Funders under the relevant
Funding Agreements arising from the early
repayment of monies and swap agreement
termination costs, provided such amounts
would not have arisen but for the
termination of this Agreement and (ii) any
interest accruing under any Approved Funding
Agreement from the Termination Date to the
date of payment of the Relevant Funding
Liabilities under Clause 40.3.1).
"Projected Net Operating Revenue" means an amount equal
to:
(a) the Net Present Value (calculated as at the
Termination Date by reference to a discount
rate equal to the Required Rate of Return
instead of the Discount Rate) of the
Projected Operating Revenues;
less
(b) the Net Present Value (calculated as at the
Termination Date by reference to a discount
rate equal to the Required Rate of Return
instead of the Discount Rate) of the
Projected Operating Costs,
but before deducting interest and tax.
"Projected Operating Costs" means the anticipated total
operating costs of the DBFO Co in performing all of its
obligations under this Agreement (including, without
limitation, complying with the O&M Requirements and the
Handback Requirements) in respect of each Contract Year
(or part of a Contract Year) during the Determination
Period, based on the assumptions that:
(a) this Agreement had continued in full force
and effect throughout the Determination
Period in accordance with its terms as in
effect at the Termination Date; and
(b) all costs in respect of such Contract Year
or such part of a Contract Year, as the case
may be, are incurred on the day which is the
mid point of such Contract Year or such part
of a Contract Year, as the case may be.
"Projected Operating Revenues" means the anticipated total
revenues of the DBFO Co under this Agreement in respect of
each Contract Year (or part of a Contract Year) during the
Determination Period as determined by reference to the
Projected Traffic and based on the assumption that all
revenues in respect of such Contract Year or such part of
a Contract Year, as the case may be, are earned on the day
which is the mid point of such Contract Year or such part
of a Contract Year, as the case may be.
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"Required Rate of Return" means the nominal rate of return
at which the Project's projected cashflow should be valued
by investors as of the Termination Date as determined by
the Determination Period Expert on a pre-tax and
pre-interest basis and taking into account (to the extent
relevant or available as comparators):
(a) the rate of return likely to have been
required by investors if they had been
offered immediately prior to the Termination
Date (and ignoring the grounds that gave
rise to the termination) the opportunity to
purchase the cashflows of the Project;
(b) the Projected Traffic and Projected
Operating Costs;
(c) the rates of return which comparable
privately financed road schemes in the
United Kingdom were projected to earn at the
time they were let;
(d) differences between the relative risk
profiles of such schemes at the time they
were let and the Project at the Termination
Date; and
(e) such other factors as the Determination
Period Expert shall deem appropriate in the
circumstances.
"Projected Traffic" means a forecast of the number of
vehicle kilometres for HGVs and Other Vehicles in respect
of each Contract Year (or part of a Contract Year) during
the Determination Period, based on:
(a) the assumptions that:
(i) this Agreement would have
continued in full force
and effect throughout the
Determination Period in
accordance with its terms
as at the Termination
Date; and
(ii) there would be no changes
during the Determination
Period in the extent,
operation or management
of the United Kingdom
motorway or trunk road
network as at the
Termination Date (other
than any such changes as
are publicly announced by
the Government prior to
the Termination Date)
which would affect the
number of HGVs or Other
Vehicles using the
Project Road; and
(b) such other assumptions as to factors
affecting traffic levels in respect of the
Project Road as the Determination Period
Expert shall deem appropriate.
40.5 Adjustments to Compensation
If the calculation of amounts payable under any provision of this
Clause 40 gives a negative amount, such amount shall be aggregated with
any amount payable under other provisions of this Clause 40, which
shall be reduced accordingly, but in no circumstances shall the
calculation of compensation under this Clause 40 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).
40.6 Interest
The Secretary of State shall pay interest to the DBFO Co on any amount
due to the DBFO Co under this Clause 40 as a consequence of termination
of this Agreement pursuant to Clause 37 [Termination by the
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DBFO Co] (other than a termination for the reason set out in Clause
37.1.7), Clause 38.1.1.2, Clause 38.3.1 or Clause 38.5.1 (but excluding
the amounts payable in respect of interest which accrues under the
Funding Agreements referred to in Clause 40.3.1.1) 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.
40.7 Satisfaction in Full
40.7.1 Any payment made pursuant to this Clause 40 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.
40.7.2 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.
40.8 Consultation
In the event of a termination of this Agreement, and without prejudice
to the other obligations of either party under this Clause 40, the DBFO
Co and the Secretary of State shall consult in good faith to determine
how any payments under this Clause 40 should be made so as to minimise
the incidence of Taxation on them, provided always that nothing in the
foregoing provisions of this Clause 40.8 shall oblige the DBFO Co to
take any action or co-operate with the Secretary of State in any manner
which it believes in its absolute discretion may be prejudicial to the
business, operations or financial condition of the DBFO Co or of any
Associated Company of the DBFO Co or of the Sponsors.
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PART VI
MISCELLANEOUS
41. ASSIGNMENT AND SUB-CONTRACTING
41.1 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.
41.2 Assignment
41.2.1 Subject to Clause 41.2.2 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 this Agreement, the
Lease, the Design Contract, any Relevant O&M Contract or
the Construction Contract or any other contract entered
into by the DBFO Co in performing its obligations under
this Agreement or any part thereof or any benefit or
interest therein or thereunder or (save to the extent
permitted in accordance with Clause 17.7.1) in the
Retention Account or any sums from time to time standing
to the credit thereof.
41.2.2 The provisions of Clause 41.2.1 do not apply:
41.2.2.1 in relation to the assignment of the benefit
of any of the agreements referred to in
Clause 41.2.1 by way of security in
accordance with:
41.2.2.1.1 the Original Funding
Agreements; or
41.2.2.1.2 any Funding Agreements other
than the Original Funding
Agreements, provided such
assignment is on terms which
are substantially the same as,
or no more disadvantageous to
the Secretary of State than,
any Encumbrance created by or
pursuant to any of the Original
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
other similar agreement in
relation to the exercise of its
rights as the Secretary of
State shall require; or
41.2.2.2 to the novation of this Agreement to a
Proposed Substitute in accordance with the
provisions of the Direct Agreement.
41.2.3 Without prejudice to Clauses 41.4.1, 41.4.2 and 41.4.3,
the DBFO Co shall procure that the Designer shall not be
permitted to assign the Design Contract or any part
thereof or any benefit or interest therein or thereunder
and 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.
41.2.4 Without prejudice to Clause 41.2.1, no assignment,
novation or other transfer of this Agreement shall be
effective unless the Lease is simultaneously assigned,
novated or transferred (as the case may be) to the same
person.
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41.3 Change in Control
41.3.1 Subject to Clause 41.3.3, there is a change in control of
the DBFO Co for the purposes of Clause 36.1.2 whenever:
41.3.1.1 any person has control of the DBFO Co who
did not have control of the DBFO Co when
this Agreement was executed; or
41.3.1.2 any person having control of the DBFO Co
when this Agreement was executed ceases to
have such control,
and, in either case, the change in control shall have
taken place without the prior consent of the Secretary of
State, which consent shall not be unreasonably withheld or
delayed in the following circumstances, and otherwise may
be withheld or delayed in his absolute discretion:
41.3.1.3 in the case of a reorganisation for bona
fide fiscal purposes where the ultimate
control of the DBFO Co does not change;
41.3.1.4 in respect of a change in control proposed
at any time after the third anniversary of
the date of issue of the Completion
Certificate; and
41.3.1.5 where the proposed change in control is
pursuant to:
41.3.1.5.1 the transfer of the Ordinary
Shares to the mortgagee (acting
solely in that capacity) in
accordance with the share
mortgage (incorporating a
floating charge) referred to in
Clause 2.3.1.3.10; or
41.3.1.5.2 the bona fide enforcement of
the share mortgage
(incorporating a floating
charge) referred to in Clause
2.3.1.3.10 following an Event
of Default to an entity of
financial standing (as
reasonably determined by the
Secretary of State) at least
equivalent to the financial
standing at the date of this
Agreement of the ultimate
Holding Company of the Sponsor
whose shares are proposed to be
sold.
41.3.2 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 41.3 a person has or had control of the DBFO Co,
with the following modifications:
41.3.2.1 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
41.3.2.2 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 660(G)(1) of that Act) of which he
is a beneficiary.
41.3.3 A change in control:
41.3.3.1 of any Sponsor or any of its Holding
Companies which arises from any bona fide
open market transactions in any shares or
other securities of such Sponsor
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or such Holding Company effected on a
recognised investment exchange (within the
meaning of the Financial Services Act 1986);
or
41.3.3.2 of BICC plc or of any entity which controls
BICC plc from time to time,
shall not constitute a change in control for the purposes
of Clause 36.1.2.
41.3.4 A change in control of Trafalgar House Corporate
Development Limited which arises from any offer made by
Kvaerner A.S. for any shares or other securities of
Trafalgar House plc pursuant to the announcement by
Kvaerner A.S. on 4th March, 1996 of its agreed bid for
Trafalgar House plc (including pursuant to any revisions
of such offer) shall not constitute a change in control
for the purposes of Clause 36.1.2.
41.4 Sub-Contracting
41.4.1 Neither the engagement nor employment of the following
persons shall be terminated without the written consent of
the Secretary of State (such consent not to be
unreasonably withheld or delayed) to the appointment of
any proposed substitute and the terms of engagement or
employment of the proposed substitute:
41.4.1.1 the Contractor;
41.4.1.2 the Designer;
41.4.1.3 any Checker;
41.4.1.4 the Archaeologist; and
41.4.1.5 the Project Quality Director.
41.4.2 If any of the persons referred to in Clause 41.4.1 shall
cease to act at any time, 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.
41.4.3 Without prejudice to any obligation under Clause 21
[Quality Assurance] the Works may be sub-contracted by the
Contractor without the consent of the Secretary of State
or the Department's Agent, subject always to compliance
with the Design and Certification Procedure.
41.4.4 Without prejudice to any obligation under Clause 21
[Quality Assurance] the operation and maintenance of the
Project Facilities may be sub-contracted by-the DBFO Co
without the consent of the Secretary of State or the
Department's Representative, subject always to compliance
with the Design and Certification Procedure and the
provisions of Clause 2.3.5.
41.4.5 The DBFO Co shall procure that the Contractor procures
that the Archaeologist is appointed on terms which ensure
that his or her functions is carried out independently of
the Designer and the Contractor and that such independence
is maintained at all times in relation to the Project.
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41.5 Consents
Save as provided in Clause 41.3.1, 41.4.1 and 41.4.2, any consent to be
given by the Secretary of State under this Clause 41 shall be in his
absolute discretion and upon such terms as he may in his absolute
discretion determine.
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42. NOTICES
42.1 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.
42.2 Addresses
Any Notice shall be duly given if signed by or on behalf of a duly
authorised officer of the person giving the Notice and left at or sent
by recorded delivery post or facsimile transmission to the following
addresses:
Secretary of State
The Highways Agency
8th Floor West
City House
New Station Street
PO Box 206
Leeds LS1 4UR
Telefax: 0113 283 6623
Attention: J R Langham
DBFO Co
Yorkshire Link Limited
20 Eastbourne Terrace
London W2 6LE
Telefax: 0171 957 3529
Attention: The Company Secretary
Department's Agent
Pell Frischmann Consultants Limited
George House
George Street
Wakefield
West Yorkshire
WF1 1LY
Telefax: 01924 376643
Attention: J Gallagher
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Department's Representative
The Northern Network Management Division
The Highways Agency
8th Floor West
City House
New Station Street
PO Box 206
Leeds LS1 4UR
Telefax: 0113 283 6623
Attention: J R Langham
42.3 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 Agent and the Department's Representative. The
Department's Agent or the Department's Representative may change its
address for notice to another address in England and Wales by prior
notice to the Parties.
42.4 Receipt
Any Notice shall be deemed to have been received:
42.4.1 if sent by hand or recorded delivery post, when delivered;
42.4.2 if sent by facsimile, upon sending, subject to:
42.4.2.1 confirmation of uninterrupted transmission
by a transmission report; and
42.4.2.2 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:
42.4.2.2.1 within 3 hours after sending,
if sent on a Working Day and
between the hours of 9.00 am.
and 4.00 p.m.; or
42.4.2.2.2 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 42.4.2.
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43. CONSENTS AND APPROVALS
43.1 Review Procedure
43.1.1 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 3 of
Schedule 7.
43.1.2 Without limitation to Clause 43.3, notwithstanding the
application of the Review Procedure, the DBFO Co shall not
be entitled to recover from the Secretary of State and
shall indemnify him against any Losses and 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 and Contractor 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.
43.2 Reasonableness
Unless otherwise specified, where any agreement, certificate, consent,
permission, expression of satisfaction or other approval (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.
43.3 Effect of Consents, Approvals and Inspections
43.3.1 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, the Department's Agent
or the Department's Representative 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.
43.3.2 Without limitation to Clause 43.3.1, no examination or
lack of examination by the Department's Agent or the
Department's Representative 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.
43.3.3 Without limitation to Clause 43.3.1, notwithstanding any
inspection by the Department's Agent or the Department's
Representative under this Agreement or the failure of the
Department's Agent or the Department's Representative to
make any inspection under this Agreement, the DBFO Co's
responsibility under this Agreement shall not be relieved
or absolved or otherwise modified.
43.3.4 Any Approval shall be final, subject to being opened up,
reviewed or revised:
43.3.4.1 if errors or further relevant facts are
revealed after the Approval has been given;
or
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43.3.4.2 in accordance with paragraph 7.3 of Schedule
15.
43.3.5 Without prejudice to Clause 43.3.4 any endorsement,
decision, opinion, instruction, notice, statement of
objection, finding, determination, requirement or
certificate of the Department's Agent or the Department's
Representative 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.
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44. TAXES
44.1 VAT
44.1.1 All amounts stated to be payable by either Party under
this Agreement shall be exclusive of any VAT properly
chargeable thereon.
44.1.2 Each Party shall pay to the other Party any VAT properly
chargeable 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 or authenticated
receipt in respect of that supply which complies with the
requirements of Part III Value Added Tax Regulations 1995.
44.1.3 If either Party (in this Clause 44 the "First Party")
shall consider that any VAT which the other Party (in this
Clause 44 the "Second Party") claims to be properly
chargeable on a supply made under 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 for 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 44
the "Commissioners") as to the VAT (if any) properly so
chargeable. The Second Party shall forthwith request the
Commissioners for such a ruling.
44.1.4 The following further provisions shall apply in respect of
the application for a ruling in accordance with Clause
44.1.3:
44.1.4.1 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;
44.1.4.2 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
44.1.4.3 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
44.1.5 If a ruling is required by the First Party under Clause
44.1.3, the First Party shall not be obliged to pay the
VAT so claimed by the Second Party unless and until a
written 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 written ruling which states that
a sum of VAT (the "VAT Sum") is properly so chargeable,
then subject to Clause 44.1.6 and 44.1.7 and provided that
the First Party shall first have received a copy of the
written ruling and a valid tax invoice or authenticated
receipt which complies with the requirements of Part III
Value Added Tax Regulations 1995 and which states the VAT
Sum to be the amount of VAT chargeable, the First Party
shall pay the VAT Sum to the Second Party together with
any penalties or interest related to the VAT Sum.
44.1.6 In the event that the First Party disagrees with any
ruling obtained pursuant to Clause 44.1.3 by the Second
Party from the Commissioners, then the Second Party 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
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supply and the First Party shall indemnify the Second
Party against all reasonable costs and expenses which it
may incur in relation thereto.
44.1.7 The following further provisions shall apply in the event
that the First Party shall exercise its rights under
Clause 44.1.6:
44.1.7.1 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;
44.1.7.2 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 the First Party shall pay such sum to the
Second Party and the Second Party shall as
soon as practicable provide 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;
44.1.7.3 save as specifically provided in Clause
44.1.7.2, the First Party shall not be
obliged to pay to the Second Party any sum
in respect of the VAT in dispute 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 in which case payment of
the VAT and penalties and interest shall be
in accordance with Clause 44.1.5;
44.1.7.4 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 44.1.7.2 which is
repayable to the Second Party and for any
interest to which the Second Party is
entitled in respect of such sums.
44.2 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.
44.3 Construction Industry Tax Deduction Scheme
44.3.1 In this Clause 44.3:
44.3.1.1 "the Act" means the Income and Corporation
Taxes Act 1988;
44.3.1.2 "the Regulations" means the Income Tax
(Sub-Contractors in the Construction
Industry) Regulations 1993 (SI 1993/743);
44.3.1.3 "contractor" means a person who is a
contractor for the purposes of the Act and
the Regulations;
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44.3.1.4 "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;
44.3.1.5 "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;
44.3.1.6 "sub-contractor" means a person who is a
sub-contractor for the purposes of the Act
and the Regulations; and
44.3.1.7 "tax certificate" is a certificate issuable
under Section 561 of the Act.
44.3.2 The provisions of this Clause 44.3 shall apply throughout
the term of this Agreement save for any period during such
term in respect of which the Secretary of State has
received written confirmation from the Inland Revenue in a
form which is reasonably satisfactory to the Secretary of
State that it is not a contractor (in which event only
Clause 44.3.11 shall apply).
44.3.3 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 44.3 applies for the first time and on each
occasion when this Clause 44.3 applies following a period
when it has not so applied the DBFO Co shall either:
44.3.3.1 provide the Secretary of State with the
evidence that the DBFO Co is entitled to be
paid without the statutory deduction, or
44.3.3.2 inform the Secretary of State in writing
that it is not entitled to be paid without
the statutory deduction.
44.3.4 If the Secretary of State is not satisfied with the
validity of the evidence submitted in accordance with
Clause 44.3.3.1, he shall within 14 days of the DBFO Co
submitting such evidence notify the DBFO Co in writing
that he intends to make the statutory deduction from
payments due under this Agreement to the DBFO Co and give
his reasons for that decision.
44.3.5 Where Clause 44.3.3.2 applies, the DBFO Co shall
immediately inform the Secretary of State if it obtains a
tax certificate, and thereupon Clause 44.3.3.1 shall
apply.
44.3.6 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 44.3 applies at that time, the DBFO Co shall
not later than 28 days before the date of expiry either:
44.3.6.1 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 44.3.4
shall apply if the Secretary of State is not
satisfied with the evidence; or
44.3.6.2 inform the Secretary of State in writing
that it will not be entitled to be paid
without the statutory deduction after the
said date of expiry.
44.3.7 The DBFO Co shall immediately inform the Secretary of
State in writing if its current tax certificate is
cancelled and give the date of such cancellation.
44.3.8 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.
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44.3.9 The Secretary of State shall be entitled to make a
deduction at the rate and from the amount specified in
Section 559(4) of the Act or at such other rate as may be
in force from time to time.
44.3.10 Where any error or omission has occurred in calculating or
making the statutory deduction then:
44.3.10.1 in the case of an overdeduction, the
Secretary of State shall correct that error
by payment of the sum overdeducted to the
DBFO Co; and
44.3.10.2 in the case of an underdeduction, the DBFO
Co shall correct that error or omission by
payment of the sum which should have been
but was not deducted to the Secretary of
State.
44.3.11 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.
44.3.12 If compliance with this Clause 44.3 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 44.3 shall prevail.
44.3.13 Any Dispute arising out of the application of this Clause
44.3 shall be resolved in accordance with the Disputes
Resolution Procedure.
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45. INTELLECTUAL PROPERTY
45.1 Design and Other Data
The DBFO Co shall:
45.1.1 make available to the Secretary of State without charge
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 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 for the purposes of exercising his rights or
carrying out his duties under this Agreement or carrying
out any statutory duty; and
45.1.2 make available to the Secretary of State all such
materials, documents and data acquired or brought into
existence by third parties for use by or on behalf of or
for the benefit of the DBFO Co as may reasonably be
required for the purposes referred to in Clause 45.1.1.
45.2 Licences
45.2.1 The DBFO Co:
45.2.1.1 hereby grants to the Secretary of State a
perpetual, transferable (but only to any
assignee of any rights or benefits under
this Agreement or upon or at any time
following the termination of this
Agreement), 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 statutory
functions in respect of the Project
Facilities all and any Intellectual Property
which at the start of the Contract Period is
or during the Contract Period becomes vested
in the DBFO Co 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
45.2.1.2 where any Intellectual Property is vested in
any third party but is available for use by
or on behalf of or for the benefit of the
DBFO Co, it shall procure the grant of a
like licence 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, the conduct of any other
Operations or the carrying out by the
Secretary of State of any statutory
functions in respect of the Project
Facilities.
45.2.2 The Secretary of State hereby grants to the DBFO Co an
irrevocable, non-transferable, non-exclusive, royalty-free
licence (carrying the right to grant sub-licences to any
contractor or sub-contractor of the DBFO Co to the extent
required 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, on terms to the reasonable satisfaction of the
Secretary of State) 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.
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45.2.3 With respect to Intellectual Property arising during the
Contract Period, the licence granted pursuant to Clause
45.2.1 or Clause 45.2.2 shall take effect immediately upon
the coming into existence of such Intellectual Property.
45.3 Computerised Data
45.3.1 To the extent that any of the data, materials and
documents referred to in Clause 45.1 are generated by or
maintained on a computer or in any other 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 his nominee
to access and otherwise use such data for the purposes set
out in this Agreement or following its termination for the
purposes of the design, construction, completion,
commissioning or testing of the Works or the operation,
maintenance or improvement of the Project Facilities,
provided that the DBFO Co may make a reasonable commercial
charge in respect of any such licence or sub-licence in
respect of any period after the Contract Period.
45.3.2 Within 28 days after the execution of this Agreement the
DBFO Co shall submit to the Department's Agent in
accordance with the Review Procedure its proposals for
back-up and storage in safe custody of the data, materials
and documents referred to in Clause 45.1 and the
Department's Agent 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 and any other contractor or
sub-contractor of the DBFO Co to comply with the
procedures to which no such objection has been raised by
the Department's Agent. 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 Agent, or, after
issue of the Permit to Use, to the Department's
Representative, who may only object on the basis set out
above.
45.4 Indemnity
The DBFO Co shall indemnify the Secretary of State from and against all
Claims made or brought against the Secretary of State by any person for
or on account of infringement of any Intellectual Property licensed to
the Secretary of State under Clause 45.2 or any plant, machinery or
equipment used in connection with the Works or Operations, and the
provisions set out in Clause 35.3 [Conduct of Claims Subject to DBFO
Co's Indemnities] shall apply to this indemnity.
45.5 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 assignment
or licence contained in Clause 45.2 [Licences].
45.6 Traffic Data
45.6.1 Without prejudice to any rights which the DBFO Co may have
in the Traffic Data, the Secretary of State shall be
entitled without further consent from the DBFO Co:
45.6.1.1 to use the Traffic Data for the purposes of
exercising his rights or carrying out his
duties under this Agreement or carrying out
any statutory function; and
45.6.1.2 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 and whether or not in return for any
fee.
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45.6.2 Without prejudice to any rights which the Secretary of
State may have in the Traffic Data, the DBFO Co shall be
entitled without further consent from the Secretary of
State:
45.6.2.1 to use the Traffic Data for the purposes of
exercising its rights or carrying out its
duties under this Agreement; and
45.6.2.2 to incorporate the Traffic Data in any
traffic or other statistics prepared by or
on behalf of the DBFO Co and to publish such
statistics or the Traffic Data either
generally or to a limited category of
persons and whether or not in return for any
fee.
45.7 Termination
This Clause 45 shall survive the termination of this Agreement
irrespective of the reason for termination.
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46. CONFIDENTIALITY
46.1 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 confidential or proprietary information
(including documents, computer records, specifications, formulae,
evaluations, methods, processes, technical descriptions, reports, and
other data, records, drawings and information whether or not included
in the Design Data or Traffic Data) (together the "Confidential
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).
46.2 Exceptions
Notwithstanding Clause 46.1, a Party shall be entitled to disclose the
whole or any part of the Confidential Information:
46.2.1 to its directors, officers, employees, servants,
subcontractors, 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
46.2.2 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
46.2.3 in the case of the DBFO Co, to any bank or financial
institution from whom it is seeking or obtaining finance;
or
46.2.4 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
46.2.5 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
46.2.6 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
46.2.7 to the extent permitted by Clause 45.2 [Licence] and
Clause 45.6 [Traffic Data]; or
46.2.8 in the case of the Secretary of State, 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;
46.2.9 in the case of the DBFO Co, to any shareholder or proposed
shareholder or any Contracting Associate of the DBFO Co
provided that such disclosure is either:
46.2.9.1 made by reason only of any employee or
officer of the DBFO Co being an employee or
officer of such shareholder, proposed
shareholder or Contracting Associate and
then only to the extent necessary in order
to enable such employee or officer to
perform his duties as an employee or
office-holder (as the case may be); or
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46.2.9.2 with the prior written consent of the
Secretary of State;
and, in the cases of Clauses 46.2.1, 46.2.3 and 46.2.9 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.
46.3 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 46.3 shall not apply to:
46.3.1 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
46.3.2 Traffic Data.
46.4 Continuation of Confidentiality Obligations
The obligations of the parties under this Clause 46 shall continue for
a period of 5 years following the Termination Date notwithstanding such
termination.
46.5 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.
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47. AGENCY
47.1 No Delegation
For the avoidance of doubt, save as expressly provided in Clause 26 or
26A 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.
47.2 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 would be necessary under any
Law on the basis that the DBFO Co does not have the benefit of any
Crown immunity.
47.3 DBFO Co Responsibility
As between the Parties, the DBFO Co shall be responsible for the acts,
defaults, omissions and neglect of the Designer, the Checker, the
Contractor, the Archaeologist, the Project Quality Director 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.
47.4 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, the Contractor or the Archaeologist in the
relevant circumstances.
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48. DISPUTES RESOLUTION PROCEDURE
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].
49. WHOLE AGREEMENT
This Agreement (including the Schedules) constitutes 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.
50. WAIVER
Failure by either Party at any time to enforce any provision of this
Agreement or to require performance by the other Party 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 the Agreement or
any part thereof or the right of such first Party to enforce any
provision in accordance with its terms.
51. 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.
52. 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.
53. REGISTRABLE AGREEMENT
53.1 To the extent that this Agreement or any arrangement of which it forms
part is registrable under the Restrictive Trade Practices Act 1976 (the
"RTPA") then:
53.1.1 any provision contained in this Agreement or in any
arrangement of which this Agreement forms part by virtue
of which this Agreement or such arrangement is subject to
registration under the RTPA shall not come into effect
until the day following the day on which particulars of
this Agreement and of any such arrangement have been
furnished to the Office of Fair Trading (or on such later
date as may be provided for in relation to any such
restriction); and
53.1.2 the Parties agree to furnish such particulars within three
months of the date after this Agreement.
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54. GOVERNING LAW AND JURISDICTION
54.1 Law
This Agreement shall be governed by and construed in all respects in
accordance with English law.
54.2 Jurisdiction
Subject to the provisions of Clause 48 [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.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as a Deed.
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The Official Seal of the )
SECRETARY OF STATE FOR )
TRANSPORT hereunto affixed )
is authenticated by )
/s/ Illegible
- ---------------------------------------------
Name:
The Common Seal of )
YORKSHIRE LINK LIMITED )
was hereunto affixed )
in the presence of: )
/s/ Illegible
- ---------------------------------------------
Director
/s/ Illegible
- ---------------------------------------------
Director/Secretary
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INDEX
PAGE NO
PART I - GENERAL
1. Definitions and Interpretation...........................................................................2
2. Documentation...........................................................................................27
3. The Project.............................................................................................33
4. Guarantees..............................................................................................35
5. Financial Model.........................................................................................37
PART II - OPERATIONS
6. Site Inspection.........................................................................................38
7. Commencement............................................................................................39
8. Land....................................................................................................41
9. Design and Construction.................................................................................45
10. Programme and Date for Completion.......................................................................49
11. Inspection and Completion...............................................................................53
12. Operation and Maintenance...............................................................................60
13. Traffic Management......................................................................................63
14. Signing and Communications..............................................................................67
15. Latent Defects in Existing Road.........................................................................69
16. Fossils and Antiquities.................................................................................71
17. Handback................................................................................................72
18. Insurance...............................................................................................81
19. Secretary of State's Obligations........................................................................84
PART III - RELATIONSHIPS AND MONITORING
20. Representatives.........................................................................................85
21. Quality Assurance.......................................................................................87
22. Reports and Information.................................................................................90
23. Records.................................................................................................91
24. Monitoring of Performance...............................................................................93
25. Statutory Powers........................................................................................97
26. Statutory Undertakers...................................................................................99
26A. Other Functions of the Secretary of State..............................................................105
27. Other Third Parties....................................................................................110
PART IV - PAYMENTS
28. Measurement of Traffic.................................................................................113
29. Calculation of Payments................................................................................117
30. Invoicing and Payment..................................................................................121
PART V - CHANGE, LIABILITIES AND TERMINATION
31. Change Procedure.......................................................................................125
32. Additional Works Services and Subsequent Schemes.......................................................126
33. Force Majeure..........................................................................................128
33A. Change in Law..........................................................................................130
34. Warranties and Disclaimers.............................................................................132
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35. Indemnities............................................................................................135
36. Default................................................................................................139
37. Termination by the DBFO Co.............................................................................148
38. Non-Default Termination................................................................................149
39. Effect of Termination..................................................................................151
40. Compensation on Termination............................................................................155
PART VI - MISCELLANEOUS
41. Assignment and Sub-Contracting.........................................................................165
42. Notices................................................................................................169
43. Consents and Approvals.................................................................................171
44. Taxes..................................................................................................173
45. Intellectual Property..................................................................................177
46. Confidentiality........................................................................................180
47. Agency.................................................................................................182
48. Disputes Resolution Procedure..........................................................................183
49. Whole Agreement........................................................................................183
50. Waiver.................................................................................................183
51. Amendments.............................................................................................183
52. Conflicts of Interest..................................................................................183
53. Registrable Agreement..................................................................................183
54. Governing Law and Jurisdiction.........................................................................184
2