"The Secretary of State has appointed the Department's Agent to be his agent during the execution of the Highway Works to exercise the functions outlined in Parts 4, 5 and 6 of Schedule 7 and during execution of the MSA Works to exercise those functions referred to in Clause 19 and during the execution of the Works to exercise such further or other functions as the Secretary of State may exercise under the Concession Agreement in respect of the Works and as he may notify to the Concessionaire in writing from time to time ...."
"The Concessionaire warrants and undertakes to the Secretary of State that ..." "7.2.5 The design of the Highway Works and each part thereof will meet in all respects the requirements of the Concession Agreement and in particular the Technical Requirements..."
"8.1 The Department's Agent may at any time prior to the issue of the Maintenance Certificate issue a request in writing to the Concessionaire for a Department's Change ..."
"Fossils and Antiquities" "
"'Change' means a variation in the design, quality or quantity of the Works and may include additions, substitutions, alterations in design and variations in the Technical Requirements. A Change shall either be a Concessionaire's Change or a Department's Change as the case may be ..." "
"Department's Agent". "
"The Concessionaire's route proposals have been subject to change during the Statutory Order-making process, up to the Scheme and Orders being made and coming into force on12th February 1998 . This Part 3 Schedule 6 describes the route at20 April 2000 including the changes made to the route up to this date ...
"'Accommodation Works' means the Specified Accommodation Works and/or the Unspecified Accommodation Works, as the context requires; "
"'Design Review Procedure' means the procedure referred to in Part C of Appendix 4;" "
"6.1.1 The Related Agreements are: (a) The Concession Agreement; (b) The Financing Agreements; (c) The Licence; and. (d) The NTL Agreement ... 6.1.3 Save to the extent the provisions of this Contract expressly require to the contrary but not otherwise, the Contractor shall: "(a) Carry out and complete the Works and otherwise perform this Contract so that no act, omission or default by the Contractor in relation thereto shall constitute, cause or contribute to any breach by the Employer of any of its obligations pursuant to or liability under the Related Agreements or otherwise give rise to any other liability on the part of the Employer or diminish any right of the Employer pursuant to any Statutory Requirements. "(b) Assume and perform all the obligations and observe and comply with all the conditions of the Concession Agreement on the part of the Employer to be assumed, performed, observed and complied with so far as they relate and apply to the Works or any part thereof."
"8.1.1. The Contractor shall design, construct, complete, commission, maintain and test the Works in strict accordance with the Employer's Requirements and the other requirements of this Contract and provide all labour, including supervision thereof, materials, Construction Plant and all other things, whether of a temporary or permanent nature, required in or for such design, construction, completion, commissioning, maintenance and testing, so far as the necessity for providing the same is specified in or is reasonably to be inferred from this Contract. 8.1.2 The Contractor shall adopt and accept responsibility for the Preliminary Design as though such design had been carried out by the Contractor hereunder. The Contractor shall be solely liable for any error or defect in the Preliminary Design and shall not be entitled to any Price Adjustment or extension to any Completion Period in respect of any cost or delay incurred as a result of or in connection with any part of or matter concerning the Preliminary Design. 8.1.3 The Contractor shall take full responsibility for the adequacy, stability and safety of the design and of all site operations and methods of construction, commissioning, maintenance, testing and making good and shall ensure that its obligations under clause 8.1(Contractor's General Obligations) are, without prejudice to clause 8.1.1, executed in accordance with Good Industry Practice 8.1.5. The Contractor's responsibility under this Contract shall not be relieved or absolved or otherwise modified by any examination or review by the Department's Agent, the Employer, the Employer's Agent, the Certifying Engineer or any other person. 8.2 Contractor's warranties. The Contractor warrants and undertakes to the Employer that: 8.2.1 it will comply with the Employer's Requirements as they may be interpreted by the Department's Agent or the Employer or in the event of a dispute regarding such an interpretation by the Adjudicator; 8.2.4 the Contractor will at all times comply with the reasonable requirements of any of the Relevant Authorities and comply with any Statutory Requirement in carrying out the Works and where design, workmanship, methods of construction, materials, Plant, commissioning, testing or maintenance are to be reviewed by the Employer, the Department's Agent or Relevant Authorities, timeous notice will be given so as to enable such a review to be carried out; 8.2.5. the design of the Works and each part thereof will meet in all respects the requirements of this Contract and the Employer's Requirements and in particular: (a) In the case of the Department's standards those appearing in Annex 1/2 of the Employer's Requirements; (b) In the case of British Standards, codes of practice and other relevant international standards in so far as they relate to design, those standards in force and in effect as at the date of this Contract; (c) In all other cases, the standards applying at the date of the execution of the construction works; 8.2.6. the completed Works shall be fit for the purpose(s) expressly stated in the Employer's Requirements and shall, as at the expiry of the Maintenance Period, be free from Defects other than Excluded Latent Defects; 8.2.7. it has been provided with sufficient information to ascertain the scope and nature of the Works, the obligations being assumed and the resources necessary for it to discharge its obligations under and in accordance with this Contract; and 8.2.8. it has reviewed and satisfied itself of the accuracy and buildability of the Employer's Requirements and the correctness and completeness of the Employer's Requirements to achieve the objectives set out in this Contract."
"Nothing in this clause 9 (Design and Checking) shall relieve the Contractor from any liability or obligation under this Contract and the Contractor shall be responsible for the acts, defaults and neglects of the Designer and the Checker and their respective agents, Sub-contractors or employees as fully as if they were the acts, defaults or neglects of the Contractor."
"9.3 Toll Collection System. 9.3.1 The Contractor is responsible for executing the Toll Collection System Works in accordance with this Contract. 9.3.2 The Toll Collection System Proposal has been prepared by the Contractor in conjunction with the Toll Collection System Sub-contractor and the Contractor warrants that the Toll Collection System Proposal satisfies the Toll Collection System Requirements Specification. 9.3.3 The Contractor shall engage the Toll Collection System Sub-contractor to carry out the Toll Collection System Works under its direction and control. Notwithstanding the foregoing, the Contractor shall remain fully and completely responsible for the execution and performance of the Toll Collection System Works. 9.3.5 The Employer shall be entitled to require the Contractor and the Toll Collection System Sub-contractor to undertake Design Development. Within 90 days of the Effective Date the Employer may notify the Contractor of the process and programme for Design Development and the Contractor will, and will procure that the Toll Collection System Sub-contractor shall, co-operate fully with the Employer and use their respective best efforts to undertake the Design Development in accordance with the Employer's reasonable requirements to the satisfaction of the Employer. 9.3.6 Subject to clause 9.3.10, the Employer may not require any further variation to the Toll Collection System Works under the process of Design Development after the Freeze Date. 9.3.7 Notwithstanding any Design Development, the Contractor will remain fully responsible for (i) ensuring that the Toll Collection System is fit for the purpose specified in the Toll Collection System Requirements Specifications and (ii) for the proper and timely performance of the Tolling Works, in each case as they may have been varied by the Design Development ... 9.3.10 Nothing in this Clause 9.3 (Toll Collection System) shall prevent the Employer from requiring a variation to the Toll Collection System Works after the Freeze Date and the provisions of clauses 39.2 (Employer's Change) and 39.7 (Payment for Change) will apply."
"12.1.1 Without prejudice to clauses 39 (Changes) and 40 (Compensation Events), the Contractor shall forthwith comply with all instructions issued to it by the Employer in regard to any matter in respect of this Contract. 12.1.2 Without prejudice to clause 12.1.1, the Employer is empowered to issue any instruction which is issued by the Employer as a consequence of any obligation of the Employer under any Related Agreement or the exercise of any right or entitlement by the Secretary of State or any other party to a Related Agreement in relation to the Works. 12.1.3 All instructions by the Employer shall be issued in writing. The Employer may in cases of emergency (stating that to be the case) give an instruction orally and the Contractor shall comply with such instruction. Provided that the Employer must confirm such oral instruction in writing as soon as reasonably practicable. 12.2 "
"Contractor's Agent."
"17.1 Relevant Authorities' Works and Requirements The Contractor shall: 17.1.1 comply with the requirements (whether future or existing) of any Relevant Authority who has jurisdiction over the Works or whose system or assets may be affected by the construction of the Works; 17.1.2 be solely responsible for liaising and undertaking all discussions and negotiations with the Relevant Authorities in respect of all matters associated with the carrying out of the Relevant Authorities' Works to the satisfaction of the Relevant Authorities, including but not limited to: (a) Determining the scope of the Relevant Authorities' Works; (b) The design of and the methodology for the carrying out of such Relevant Authorities' Works; (c) All necessary planning permissions and consents; and (d) The person that shall undertake such Works; and 17.1.3 where requested by the Relevant Authority carry out and complete the Relevant Authorities' Works in which case, but without prejudice to clauses 17.1.1 and 17.1.2, and save where the Relevant Authorities' Works are to be carried out under an agreement made between the Contractor and such Relevant Authority directly, such Relevant Authorities' Works shall be deemed to form part of the Works and the provisions of this Contract shall apply accordingly. 17.3.1. The Contractor shall be solely responsible for all costs associated with the carrying out and completion of the Relevant Authorities' Works in accordance with the provisions of this Contract ... 17.3.4 Without prejudice to clause 17.3.1, where in respect of Relevant Authorities' Works, either; (a) An agreement is in place as at the date when such works are carried out pursuant to which the Relevant Authority acknowledges the Employer's right to a Statutory Discount in respect of such works; or (b) The Employer subsequently reaches an agreement with a Relevant Authority for a Statutory Discount in respect of the Relevant Authorities' Works, And the Employer in either case accordingly instructs the Contractor to make an advance payment in respect of such works in accordance with theStreet Works (Sharing of Costs of Works) Regulations 1992 and a Statutory Discount is given by that Relevant Authority or would have been given had the Contractor made payment as aforesaid, the Contract Price shall be reduced by a sum equal to 50% of the amount of such Statutory Discount. The Employer shall receive the benefit of such reduction by way of a corresponding reduction in the amount payable under clause 37.1 (Payment of Items in the Schedule of Prices) in respect of item 16.0 thereof following the date on which such Relevant Authorities' Works are completed. 17.5 The Contractor shall not be entitled to any Price Adjustment or any extension of any of the Completion Periods as a result of compliance with its obligations under clause 17.1 (Relevant Authorities' Works and Requirements) and 17.2 (Contractor's Responsibility in respect of the Relevant Authorities' Works) or otherwise in connection with the carrying out of any Relevant Authorities' Works."
"21.1.1 The Employer shall grant to the Contractor Vacant Possession of such part or parts of the Site, the Adjacent Areas and the Motorway Service Area (together with Ancillary Rights relating thereto) as soon as the Secretary of State delivers the same to the Employer in accordance with clause 6.2.2 of the Concession Agreement..."
"25.1.1 Save as provided in clause 25.1.2 and subject to any rights which the Contractor may have under clause 7 (Contractor's Rights) in respect of a Project Relevant Event and clause 40 (Compensation Events), the Contractor shall at its own costs: (a) Ensure that all of its obligations under this Contract are carried out in compliance with all applicable Statutory Requirements; (b) Obtain all permits, approvals and/or licenses from the Relevant Authorities and other governmental authorities having jurisdiction over the Works and/or the Contractor which are necessary for the performance of this Contract; and (c) Comply with the rules and regulations of all Relevant Authorities and other public bodies and companies whose property or rights are affected or may be affected in any way by the Works . 25.4 The Contractor shall give all notices and pay all fees required to be given or paid by any authority (including any Relevant Authority) or Statutory Requirements in relation to the execution of the Works or by the rules and regulations of any public bodies and companies whose property or rights are or may be affected in any way by the Works."
"Fossils and Antiquities." 27.1.1 The Contractor acknowledges that all Fossils and Antiquities shall be that deemed to be the absolutely property of the Secretary of State. The Contractor shall take all reasonable precautions to prevent its workmen or any other persons from removing or damaging any Fossils and Antiquities and shall immediately on discovery thereof and before removal inform the Department's Agent and the Employer of such discovery and carry out such instruction as the Department's Agent may give to the Employer under Clause 29 of the Concession Agreement (and the Employer shall forthwith provide a copy of such instruction to the Contractor) as to the disposal of the same. 27.1.2 No extensions of time will be granted for delays caused by compliance with requests made by the Department's Agent except to the extent that there shall be a material delay to or material increase in the cost of the execution of the Works in which case the Employer shall issue a Department's Change or an Employer's Change in accordance with clause 39 (Changes)."
"CONTRACT PRICE. 36.1 Price for the Works. The Contract Price is£485,500,000 , subject to adjustment in accordance with the express provisions of this Contract. 36.2 Adjustment of Contract Price "
"37.1 Payment of Items in the Schedule of Prices Subject to the terms of this clause 37 (Terms of Payment) and clause 38 (Method of Payment) the Contractor shall be entitled to payment of the amounts set out in the Schedule of Prices as follows: ..... 18.0 Unspecified Accommodation Works. Pro rata to percentage of completion. 19.0 Aggregate Tax. Monthly in arrears as levied. 20.0 Future Mining Works. Pro rata percentage of completion. 37.2 Payment of the Contract Price. "
"38.1 Measurement of Quantities The Employer and the Contractor shall within 28 days of the Effective Date agree a procedure and basis for assessing the measurement and the progress of the Works for the purposes of clause 37.2.1 and the Schedule of Prices. Failing agreement as aforesaid the Employer and the Contractor shall adopt such procedure and basis as the Employer in its absolute discretion shall reasonably decide."
"CHANGES 39.1 Department's Change. "
"Contractor's Change. 39.8.1 If in the opinion of the Contractor it is necessary or desirable to vary or amend the Employer's Requirements such proposal together with all supporting Design Data and an explanation of the reasons therefor, including, if appropriate, the Designer's comments, shall be submitted under cover of a submission document by or through the Contractor as a proposed Contractor's Change in accordance with the Employer's Review Procedure. 39.8.2 The Employer shall be entitled, in its absolute discretion, to: (a) Reject the proposed Contractor's Change; or (b) Approve the Contractor's Change and, where the same relates to the Technical Requirements, submit a proposed Concessionaire's Change in accordance with clause 7.7 of the Concession Agreement 39.8.6 No Contractor's Change implemented in accordance with clause 39.8 (Contractor's Change) shall in any way vitiate or invalidate the Contract and where such Contractor's Change shall result in increased costs or any delay such consequences shall be borne entirely by the Contractor who shall also have the benefit of any savings which occur."
"40.1.1 Save in respect of Department's Changes and Employer's Changes, where a specific provision is made in this Contract for the payment of compensation or other monies upon the occurrence of specified events, matters or circumstances, such specific provision together with this clause 40 (Compensation Events) shall apply and shall govern the rights and remedies of the Parties to the exclusion of any other rights or remedies relating to such payment which might otherwise be available pursuant to this Contract or otherwise howsoever. 40.1.2 The Contractor shall have no further entitlement whether by way of a Price Adjustment or an extension of time or otherwise or any relief of its obligations under this Contract in respect of a Compensation Event other than that set out expressly in this Contract, subject always to the provisions of clause 7 (Contractor's Rights) and clause 40.3 (Claims Procedure) . 40.3 Claims Procedure. 40.3.1 The provisions of this clause 40.3 (Claims Procedure) shall govern the procedure for any claim which the Contractor may wish to make for a Price Adjustment, other than a Department's Change or an Employer's Change in respect of which the provisions at clause 39 (Changes) shall apply. 40.3.2 If the Contractor considers that it may have grounds to claim any Price Adjustment it shall give written notice (including such particulars of the event and the basis of the claim as are available at that time) to the Employer within 21 days after the event giving rise to the claim has first arisen or should reasonably have come to the knowledge of the Contractor, whichever is later . 40.3.5 Notwithstanding any other provision of this Contract, it shall be a condition precedent to the Contractor's right to any Price Adjustment that: (a) The Contractor shall have complied fully with the provisions of clauses 40.3.2, 40.3.3 and 40.3.4; and (b) The Contractor shall have used all reasonable endeavours and shall have taken all such steps as may reasonably be required from time to time to mitigate and minimise the amount of any additional payment to which it may be entitled by virtue of this Contract and any cost or loss it may incur or suffer in connection with the circumstances giving rise to the Contractor's right to that Price Adjustment."
"50.2 Consent, Approval etc. Save to the extent provided for expressly in this Contract, the Contractor's liability under the Contract shall not be affected by: "50.2.1 any comment, review, audit, rejection, approval, acquiescence or acceptance of any matter or thing nor any failure to comment, review, audit, reject, approve, acquiesce or accept the same; 50.2.2 any test, inspection, supervision or failure to test, inspect or supervise; 50.2.3 the issue of any certificate; 50.2.4 the making of any payment; 50.2.5 the provision of any information, whether contained in this Contract or otherwise; or 50.2.6 any failure or delay by the Employer to enforce any provision of this Contract or to require performance thereof. 50.3 Entire Agreement. Each party agrees and acknowledges that; 50.3.1 it has had or, as the case may be, is deemed to have had, full opportunity to include in this Contract any representation or warranty (if any) made to it by the other Party leading up to this Contract; 50.3.2 this Contract embodies the entire and only agreement between the Parties as to the subject matter hereof. 50.4 Amendments. No amendment to this Contract shall be binding on the Parties unless in writing and signed by the duly authorised representatives of the Employer and the Contractor. 50.5 No Waiver. The rights of any Party shall not be prejudiced or restricted by any indulgence or forbearance extended to the other Party. 50.5.2 No waiver by either Party of any default or variation by the other in the performance of any of the provisions of this Contract shall operate or be construed as a waiver of any other or further default or variation whether of a like or a different character, or shall be effective, unless in writing duly executed by an authorised representative of such Party."
"(ii) The pricing information provided under this Part 1 of the Pricing Schedule will only be used for the purposes of submission and approval of interim progress payments under clause 38.3 (Monthly Application for Payment) and 38.4 (Interim Payment Certificate) . 18.0 Provisional Sum for Unspecified Accommodation Works To be expended under instruction by the Employer for work agreed by the District Valuer and the Contractor as referred to in clause 36.3 of the Conditions of Contract. 19.0 Provisional Sum for Aggregate Tax. To be expended under instruction of the Employer in respect of Aggregate Tax levied on the Contractor, subject in aggregate to the relevant maximum amounts provided for in clause 36.3.3 of the Conditions of Contract. 20.0 Provisional Sum for Future Mining Works. To be expended under instruction of the Employer for extra cost of undertaking Future Mining Works as referred to in clause 36.3 of the Conditions Contract."
"Item 1.1.4. Archaeology. Sum:£2,453,227.00 Evaluation Method: By percentage complete at Defined Dates... Item 7.9 Sign Gantries. Sum:£3,436,237.00 Evaluation Method: By percentage complete. Item£ 10.00 Signage. Sum:£1,514,239.00 Evaluation Method. By percentage complete against agreed sums for sections identified by chainages. Works Included. All associated trenchwork, concrete foundations, the fixings, Roadside and Gantry Signage. Road markings. Item 18.00 Provisional Sum for Unspecified Accommodation Works. Amount£1,900,000.00 Evaluation Method. By percentage complete of expenditure under Employers Instructions. Works Included: All Advanced work required and not scheduled within the Employer's Requirements. Item 19.00 Provisional Sum for Aggregate Tax. Amount:£50,000.00 Evaluation Method. As levied subject to the limits in clause 36.3.3 of the Conditions of Contract. Item 20.0 Provisional Sum for Future Mining Works. Sum:£50,000.00 Evaluation Method. By percentage complete. Item 21.0 CONTRACT SUM (£) 485,500,000.00 Value of Non-MSA Works: 484,507,354 Including Provisional Sum items, 18.0, 19.0 & 20."
"1.1 Preamble. 1.1.3 Except where otherwise directed, all materials, workmanship, design and construction shall comply with: (i) Standards, including Advice Notes and other documents listed in Annex 6-1, and Annex 1/2 as modified and extended by Annex 1/16 ... (vi) Undertakings given at the Public Inquiry and undertakings arising from the Secretary of State's Decision Letter of23rd July 1997 . 1.1.4 The Works comprise all works necessary for the completion and opening of the Concession Road including obtaining all outstanding consents, approvals and permissions, provision of all facilities necessary for opening the road to the public as a toll road and the completion of all associated works necessary to comply with current practice and legislation . 1.2. Statutory Orders and Availability of Site . 1.2.3 The Site boundaries are shown on the SDP series of drawings as listed in Annex 1/5. 1.2.4 Notwithstanding the site boundaries as defined above, the Contractor shall be responsible for those locations remote from the site where permanent or temporary works may be necessary (as required in the Contract for remote traffic signing or forming parts of temporary diversions proposed by the Contractor) ... 1.3. Design Data 1.3.1 Traffic figures to be used for Detailed Design are supplied by the Employer in Annex 1/4 ... 1.3.5 Technical Approval Authority. Prior to any Design Data being submitted under the Design Process, the TAA shall review the relevant Design Input Statement. This may take the form of a statement outlining the basic parameters to be used for the Detailed Design or, for structures, an AIP. The Design Input Statement shall be signed by the Designer and the Contractor. The procedure for reviewing the Design Input Statement shall be as Section 3.4 of the Employer's Requirements for Structures except that the time period for review under the Design Process shall be 28 days . 1.4. Definitions ... 'AIP' means an Approval in Principle Form or Form A: Approval in Principle Form shown in Annex 3/4 or Annex 3/9 respectively ...." "
"Mandatory Requirements: these drawings cover essential elements of the Works which must be incorporated into the Contractor's proposals. Provisional Drawings: These drawings show the Preliminary Design and are provided for guidance. The Contractor may adopt or modify these designs to suit his own proposals, provided that in either event he can demonstrate that the proposals meet the Employer's Requirements and are in full compliance with the Made Statutory Orders. Informatory Drawings: These drawings are issued for information only."
"Post Decision Scheme Site Definition Plans. Status: Mandatory Requirements. Comment: These drawings define the boundaries of the site to be provided by the Employer. "
"Traffic Signs, Traffic Signals and Road Markings ... 2.10.2 The Contractor shall design and provide all signs (excluding tourist signing), signals and road markings required for the satisfactory operation of the BNRR tolling system and shall obtain all necessary agreements and approvals for his proposals from the relevant Highway Authorities. 2.10.3 Traffic signs and signals shall be designed in accordance with Traffic Signs Manual and the appropriate standards listed in Annex 1/2. The likely operating speeds and the mandatory speed limit shall be as described in Numbered Appendix 12/1. 2.10.4 The Contractor shall be responsible for the detailed design, supply and installation of all signing necessary for opening and operating the road as a toll road including: • signing required for the operation of the tolling system. • modified or new signing on the M6 and M42 motorway approaches to the BNRR • direction and route confirmatory signs for non-trunk roads consistent with the signing policy of the relevant Highway Authority • all necessary warning, regulatory, informatory and directional signs required by new or revised side roads or junctions on all approaches, including temporary or permanent modifications to existing signing, as agreed with the relevant Highway Authorities. Such signs may be sited at locations remote from the site and beyond the extent of highway works indicated on Side Roads Orders on land described in the Contract as Adjacent Areas, but exclude remote signing required solely as a result of BNRR being added to the highway network. 2.10.5 Variable direction signs and message matrix signs shall be provided at the diverges between the BNRR and M6 and M42 Motorways and at other locations all to the satisfaction of the relevant Highway Authority. Variable message signs shall be designed in accordance with the relevant standards listed in Annex 1/2. Variable message signs will be required on the approach to tolling booths ." "2.12.16. Variable message signs shall be provided in the most suitable form for their purpose. The variable message signs on BNRR shall be designed for ... "• tolling information purposes, advising road users on the current toll price and status of toll booths ... 2.14 Archaeological Works. 2.14.1 Previous archaeological investigations have been carried out on the site in order to identify any sites or areas of potential archaeological interest and evaluate their importance. The 'BNRR Public Inquiry Archaeological Report' (1994) and the 'BNRR Archaeological Addendum to 1994 Archaeological Desktop' (2000) contain details of the Cultural Heritage of the Site and the surrounding area. The 'BNRR Archaeological Project Design: General Strategy and Methodology' (2000; referred to below as the General Project Design) sets out the nature of the archaeological works to be undertaken in respect of each identified archaeological site and of the Site as a whole, together with standard methodologies to be applied in executing the archaeological works. The BNRR Aerial Photograph Assessment: Archaeology: Rectified Mapping Report (August 2000) identifies and gives details of features visible on aerial photographs. The requirements for Site No 7 in Table 2.7.3 of the General Project Design are extended. Black Country SMR 10350 records cropmarks of a multiple ditch system in this area, of local significance. The Contractor shall determine from the Rectified Mapping Report whether it suggests that the site is of more than local interest and is substantially affected by the BNRR works. If so, more detailed treatment, including geophysical survey, trenching and excavation will need to be carried out. In addition, the AP plotting indicates three possible extra sites, not listed in the General Project Design and as listed below, for which the Contractor shall assess the extent and impact of necessary investigation. The Contractor shall also determine whether the AP plotting has revealed other sites requiring investigation. SK11960499 Crop marked ditch enclosure and linear ditches indicative of a former enclosure. Aligned contrary to the modern fields, suggesting that they are more than former boundaries. SK12480443 Crop marked linear ditch and perpendicular linear ditch with possible rounded corner. Could be a Roman camp, but this interpretation is very tenuous. Also pit alignment of unknown date and function. SK12940449 Pit alignment, crop marked. 2.14.2 The Contractor shall employ an Archaeologist who shall be a Member of the Institute of Field Archaeologists with at least 10 years' relevant archaeological experience since graduating. The Archaeologist shall prepare Design Input Statements in respect of each archaeological site and in respect of scheme-wide advance works and scheme-wide works during construction, in accordance with the requirements of the General Project Design, and in accordance with Annex 1/3 part 5. 2.14.3. The Contractor should be aware of the possibility of uncovering archaeological features during the removal of topsoil or other soils within the Site. In the event of a feature of possible interest being discovered and unless otherwise agreed with the Employer, the relevant Local Authority Archaeologists and English Heritage (as appropriate), the Contractor shall: (i) cease the stripping of topsoil and other soils and materials in the vicinity of the feature of possible interest; (ii) immediately inform the Employer that a feature of possible archaeological interest has been uncovered. After consulting with the Department's Agent, the Employer will decide whether English Heritage and/or the relevant Local Authority Archaeologist should be contacted and should this prove necessary the Contractor shall erect temporary fencing around the area/feature of possible archaeological interest and shall allow representatives of English Heritage and/or the relevant Local Authority Archaeologist access to the Site provided it is deemed safe to do so. 2.14.4 In the event of a significant discovery being made the Employer, in consultation with English Heritage and/or the relevant Local Authority Archaeologist, will decide on an appropriate course of action and duly inform the Contractor in writing of that action. Should it prove necessary for representatives of English Heritage and/or the relevant Local Authority Archaeologist to visit the Site the Contractor shall allow them access to the Site ..."
"3.1 New Structures. 3.1.1 A list of the new Structures is given in Annex 3/1. The Employer's Mandatory Requirements for Structures are given in Annex 3/7. Employer's drawings illustrating the Preliminary Design and, where provided, CAMBBA's drawings which supersede the Preliminary Design are listed at Annex 3/5. The drawings will be used to develop the Approvals in Principle. However, where the CAMBBA drawings conflict with the Employer's Requirements the Employer's Requirements will be used as the benchmark.... 3.1.3 the following is the estimated numbers of new Structures. The actual number of new Structures shall be determined by the Contractor in accordance with the Detailed Design."
"3.3 Structure Design. 3.3.1 The preliminary Structure layouts were prepared to satisfy the route alignment and were used in submissions to both the RFAC and Public Inquiry. The CAMBBA designs of the Structures representing the Preliminary Design are listed in Annex 3/5... 3.4 Technical Appraisal and Certification Procedures. 3.4.1 All proposals concerning the design of new Structures or work that involves existing Structures shall be subject to technical appraisal by a TAA. The appraisal entails submission to the Employer and review of the proposals under the Design Process within the framework of the AIP contained in Annex 3/4, or for a Rail Line Underbridge a Form A: Approval in Principle in Annex 3/9 or a Design Input Statement. A separate form shall be prepared for each Structure. 3.4.2 The design of Highway Structures incorporated in the Works shall comply with Standards in Annex 2/1 ..."
"5.2.8 The Contractor shall be responsible for obtaining all necessary consents, approvals and agreements from the relevant planning authorities for the construction of the buildings and from the appropriate utility providers for the provision of services... 5.3.7 The contractor shall be responsible for obtaining all necessary consents, approvals and agreements from the relevant planning authorities for the construction of the buildings and from the appropriate utility providers for the provision of services... 5.5 Building Specification. 5.5.1 An outline building specification to be used in detail design of the Operations Management Centre, the Maintenance Personnel Building and the Police Security Building is contained in Annex 5/1."
"6.3.3 The buildings shall be fully serviced with electricity, gas (where practicable), hot and cold water supplies, drainage, heating, lighting, ventilation and in the case of rooms housing electronic control equipment, air conditioning, to a standard and specification to the satisfaction of the Employer."
"9.1 General 9.1.1. The scheme shall be subject to road safety audits in accordance with the Standard HD 19/94 and HA 42/94 except that the procedure shall be amended as given below. 9.1.12 The Stage 1 Safety Audit Report for the scheme is available for inspection at the office of the Employer. 9.2 Stages of Audit Two further stages of audit shall apply: 9.2.1 Stage 2 Audit: for any item or stage of the Detailed Design, a Stage 2 Safety Audit shall be carried out prior to the start of construction of that item or stage. 9.2.2 Stage 3 Audit: immediately prior to occupation or use by the Employer of any part of the Permanent Works; any remedial works so identified shall be completed before opening of the road to public use except where otherwise agreed by the Department. Depending upon the programme for the Works, it is anticipated that individual Stage 3 Safety Audits will be required for each side road and interchange. 9.2.3 The Contractor should be aware that the Department may require Stage 3 Safety Audits to be undertaken for the traffic management works proposed for motorways and trunk roads. 9.3 Method of Audit. 9.3.1 The Safety Auditor shall be appointed by the Designer and shall be independent of the design team. Communication between Auditor and the Designer shall be via the Employer. 9.3.2 The audit brief prepared in accordance with Clause 2.20 of HD 19/94 shall exclude reference to Standards that are not included in the Technical Requirements. 9.3.3 The Contractor shall implement at its own cost all recommendations of the Auditor except where otherwise approved by the Department. 9.3.4 The Designer shall supply to the Employer reports and certificates at each stage of the audit to certify that the audit has been carried out and that except where otherwise approved the recommendations of the audit team have been incorporated into the Works."
"The Contractor shall be responsible for designing, agreeing, organising and arranging the archaeological works to be undertaken both before the start of and during construction in accordance with Paragraph 2.14 of the Employer's Requirements. "
"Where the requirements of TD 16/93, as amended by Annex 1/16, cannot be achieved with regard to RFC values, then the geometric design of junctions shall be optimised to provide the greatest capacity available (up to the Design Year flows) within the available landtake and taking into account notified future highway improvement schemes. Such optimisation shall not rely on new structures or the need for significant elements of service and utility diversions, such as relocation of electricity transmission towers, sub-stations or major valve chambers, which would otherwise not be included in the Project."
"9.3 The following Structures shall be constructed in accordance with the provisions set against it below ... 5. Gantries. "5.1. General "
"1.1 Purpose of this document This document contains the Requirements Specification of the Employer for the Toll Collection System (TCS) for the Birmingham Northern Relief Road (BNRR). This document is referred to in the Conditions of Contract and the Employer's Requirements as the "
"An option is a feature of the system that shall be included in the tender of the Toll Collection System. However, the Employer will decide at a later stage if the option shall be implemented in the delivered system."
"3.2.1.1.2[15] As an option the TCS shall inform the Road User: -- using variable message signs in front of the Toll Station over the carriageways showing only the actually applicable toll fees for all vehicle classes..." "3.2.1.1.3[47] The TCS shall not cause unnecessary delay to the passage of vehicles specified in Chapter 13.2(a), (b), (c) of the [NRSWA] (police vehicles, ambulances and fire engines) by giving away to the vehicle as soon as the Cashier or Supervisor have indicated that these vehicles are exempted from paying toll. [48] The processing time of the TCS for the Fee Charging process shall be equal to or lower than the times specified in the following table."
"2. Responsibilities. 2.1. The Contractor shall be responsible for the design, construction and maintenance, at each location, of the traffic safety and management system and associated work as described in Clause 117 of the Specification and this Appendix including complying with the requirements and advice in the following publications."
"1. The likely operating speeds (design speeds) and mandatory speed limits shall be as follows: BNRR-main route. Design speed: 120 kilometres per hour. "
"1. All Design Data shall be prepared by or under the supervision of the Designer. The Contractor shall submit all Detailed Drawings to be used for Construction to the Employer who shall selectively review and audit the same. In addition to the Detailed Drawings the Contractor shall provide as much Design Data as the Employer may request for carrying out review and audit. 2. All Detailed Drawings submitted shall be the subject of a Design Review Certificate stating that the design has been prepared in accordance with and complies in all respects with the Employer's Requirements and the Design Input Statement. Where appropriate, the Design Review Certificate shall be accompanied with a Check Certificate. 3. All Design Review Certificates, Check Certificates and Detailed Drawings together with additional requested Design Data, shall be submitted to the Employer in triplicate free of charge by the Contractor. 4. The Employer shall, as soon as practicable, and in any event within 28 days, return one copy of the relevant document covering the submission endorsed "received", "received with comments" or "comments" as appropriate. Where a submission is endorsed "received" the Contractor may proceed without further reference except as expressly provided for under the Design and Checking Procedure. Where the submission is endorsed 'received with comments' provided the material, the subject matter of the submission, is amended by the Contractor in accordance with those comments, then except as expressly provided for in the Design and Checking Procedure the Contractor may proceed without further reference. Where the submission is endorsed 'comments' then, unless the matter is referred to the Disputes Resolution Procedure, it shall be revised by the Contractor and re-submitted to the Employer."
"9.1 The decision of the Adjudicator shall be final and binding on the parties until the Dispute is finally determined by: "9.1.1 the agreement by the parties; or "9.1.2 legal proceedings in accordance with paragraph 9.2. Prior to such final determination the decision of the Adjudicator shall be implemented without delay and the parties shall be entitled to such reliefs and remedies as are set out in the Adjudicator's decision (and shall be entitled to summary enforcement thereof) regardless of whether such decision is or is to be the subject of any challenge or review." 9.2 Subject to paragraph 9.5, a party may, within 60 days after receipt of the determination of the Adjudicator, refer any matter comprised in the Construction Dispute to the Court for determination, and the Court shall have jurisdiction to determine the rights of the parties in respect of such matters. The Court shall have full power to open up, review and revise any endorsement, decision, opinion, instruction, notice, statement of objection, finding, determination, requirement or certificate of the Department's Agent, the Department's Representative, the Employer, the Employer's Agent or the Certifying Engineer related to the Construction Dispute and any determination of the Adjudicator ..."
"(1) Where an undertaker's apparatus in a street is affected by major highway works ... the allowable costs of the measures needing to be taken in relation to the apparatus in consequence of the works ... shall be borne by the highway ... authority concerned and the undertaker in such manner as may be prescribed. "(2) The regulations may make provision as to the costs allowable for this purpose (4) The regulations shall provide for the allowable costs to be borne by the authority and the undertaker in such proportions as may be prescribed."
"3. Save as provided in regulations 7 and 9 in cases where works are initiated by an authority and an undertaker executes measures which need to be taken in respect of his apparatus because of those works, the authority shall pay to the undertaker a sum equal to the allowable costs incurred by the undertaker in taking those measures, provided that the authority shall pay only 82 per cent of the said allowable costs if the authority pays to the undertaker a sum equal to 75 per cent of the estimate of the said 82 per cent pursuant to paragraph (a) of regulation 9 ... 9. Allowable costs under any of the provisions of these Regulations shall be payable as follows:- "(a) in the case of any payment due from an authority pursuant to regulations 3 and 6, the authority may pay to the undertaker a sum equal to 75 per cent of the estimate of 82 per cent of the allowable costs in a single lump sum before the works begin or, if the authority and the undertaker so agree in the case of works of an estimated duration of more than 3 months, by instalments of such amounts payable at such times during the execution of the works as the authority and undertaker agree; (b) after the works have been completed the person to whom the allowable costs are due (the creditor) shall issue to the person from whom they are due (the debtor) an account of the allowable costs and within 35 days of that account having been issued the debtor shall pay to the creditor a sum equal to the allowable costs ..."
"This is on account of the fact that the letter constitutes a change to the Conditions of Contract, which neither of us are empowered to agree to. As discussed we agreed to draft out a "
"Statement of Intent". "
"Gantries for Toll Plazas". "
"The TCS shall inform the road user using variable message signs in front of the toll station over the carriageways showing only the actual applicable toll fees for cash or card payment for all vehicle classes. These signs are the same as those referred to in the final sentence of clause 2.10.5 of the Employer's Requirements. The vehicle classes referred to in this requirement are the classes according to the initial configuration specified in [18], see also figure 7."
"Employer's Change No 13, Relaxation of Requirement for signing of the 1 mile approach to mainline toll plazas and approaches to slip road toll plazas to be gantry-mounted ... pursuant to clause 39.5 of the Design and Construction Contract we hereby instruct that the requirement for CAMBBA to provide gantry-mounted signs for the 1 mile approach to the mainline toll plazas (2 No.) and on the approaches to the slip road toll plazas (3 No.) is reduced to the requirement that post-mounted signs are provided (item 3.2.1.1.2.[15] of version 3 of the Toll Collection System refers). The five gantries that are covered by this Change (using the references contained in the 'Procedure and Basis for Assessing Measurement and Progress of the Works Contract Clause 38.1') are 31200S, 18200N, 21900S, 30700N and 39800N. As provided for in paragraph 39.5 of the Design and Construction Contract, please send me a quotation identifying the cost saving and any other effects resulting from this relaxation of the mandatory requirements of this contract."
"The tests revealed concerns about the height of the ACM baskets which were described as being 'much higher than the ones on the Dartford crossing'. The height of the lower ACM basket is 127 centimetres from the road surface, whereas at the second Severn crossing the height is 101 centimetres (lowest part of the basket). The extra height means that coins have to be thrown rather than dropped into the baskets. We believe that this will have an adverse effect on our lane throughput if nothing is changed, through coins falling on the carriageway."
"The most satisfactory solution for the Employer is to have a gravity connection to a public sewer. However we do recognise that where this is not reasonably achievable there are other options that could be considered, such as a pumped rising main, a package treatment plant or perhaps a septic tank with appropriate filtration. "
"B. A cesspool is a covered water-tight tank used for receiving and storing sewage and has no outlet. It relies on road transport for the removal of raw sewage and is therefore the least sustainable option for sewage disposal. Because of this, a cesspool is best regarded as a temporary measure pending a more satisfactory solution such as the provision of mains drainage. It is essential that a cesspool is and remains impervious to the ingress of ground water or surface water and has no leaks ... "
"Concerns have been raised regarding the construction of the Chasewater Footbridge (bridge 204) which will be a thoroughfare over the M6 toll road. I understand that the bridge is to be constructed with the standard height railing of 1.1 metres. Staffordshire police feel strongly that, due to the nature of the area surrounding that particular bridge, it will become a natural congregation point for local youths. They feel that this is likely to result in many problems, not least, the dropping of objects onto the carriageway below. The possible consequences of such actions need no explanation. It is therefore requested that consideration be given, at the design stage, to either enclosing the top of the bridge, or raising the height of the barrier such that it prevents objects being hurled over or persons climbing over it."
"Sally, following our discussion on Monday have you been able to speak to Sgt. Carradine[sic]. There are a range of options to address the risk of objects being dropped/thrown onto the motorway and it is difficult to know what the best solution is. CCTV coverage would be a strong deterrent but not physically prevent the risk, although it could provide evidence. Structural changes to the parapet fencing might reduce the risk at this location but move it elsewhere. Clearly CAMBBA are concerned about the programme implications of any changes to the current design, in particular if it has the potential to delay opening. We need to fully understand the Police's requirements. Maybe a meeting at B204 with yourself and Sgt. Carradine [sic] would help."
"We don't think that the structural changes will move the problem elsewhere because the characteristics of other overbridges are very different and the Police would welcome a higher railing with mesh. There is always the problem that whatever you place there to prevent the lobbing of missiles, can become the missile itself following damage. Hence we still believe that the deterrent and evidential value of CCTV coverage with signs on the footbridge cannot be underestimated and we would urge this line of action. In the Staffordshire Police area this system is operating successfully on one of the M6 over-bridges."
"On Friday11th July 2003 I attended a site meeting at the Chasewater Footbridge with Mr Richard Jones, and others, in an attempt to address the issues and concerns raised by Staffordshire police regarding this location. These were underlined in a letter to your self in November 2002. "
"Sign gantries which incorporate signals... "2.3.6. The schematic design by Atkins Odlin included in the tender documents will be considered, reviewed and adopted."
"Important Comment on option 3: "
"I note that Sally is picking this footbridge out as a special case due to the nature of the surrounding area. The problem is real, but the counter to it is less easy to resolve. Simply raising the level of the parapet would be unlikely to be effective, as it would still be possibly to throw objects over. I also have reservations about enclosing the footbridge as there would be a requirement for daylight to penetrate -- experience with these in this area indicates that such an enclosure would soon be smashed, and the problem would not be solved. The only method of enclosure which might be effective would probably be a heavy duty mesh enclosure, but this could also be vandalised."
"The buildings shall be fully serviced with ... Drainage ... To a standard and specification to the satisfaction of the Employer."
"Underground drains will be provided to collect both foul and surface water."
"That on a true interpretation of the contract, the Defendants' entitlement in respect of the Provisional Sums is the total of£758,426 for Item 18 and£2,880,000 for Item 19, subject to a deduction from the contract sum of the total value of the 3 Provisional Sums stated in the Pricing Schedule."
"The term "provisional sum" is used in construction contracts to make financial provision for works which cannot be sufficiently defined at the time of tender to enable the Contractor to price it accurately. In some construction contracts, the mechanism for determining the sum payable for work the subject of a Provisional Sum involves the substitution for the Provisional Sum of the value of the work carried out in respect of the item. The way in which this mechanism is achieved varies according to the nature of the contract. For example: (1) In the case of some lump sum contracts, such as some JCT forms, it is achieved by deducting the Provisional Sum from the Contract Price and substituting a figure to reflect the value of the work carried out. (2) In re-measurement contracts (such as ICE) no sum is deducted from the Contract Price in this way. The value of the work performed is calculated by way of admeasurement. The effect of any particular contractual provision will be determined by the proper construction of the relevant contract."
"The process of measurement of completed work."
"Value of non-MSA works,£484,507,354 including Provisional Sum items 18, 19 and 20."
"Provisional Sums for Aggregate Tax". "
"2.1. This document is prepared within the terms of clause 38.1 of the D&C Contract in agreeing between the Employer and the Contractor the basis for assessing the measurement and progress of the Works. "2.2. The fundamental basis and procedures have already been established within the D&C Contract: the purpose of this document is to build upon the primary details provided therein, to develop in more definitive details the procedures and basis for establishing the monthly measurement and progress of the works. "2.3. However, the purpose is not to allow the process to evolve into a resource and time consuming re-measurement of the works, but to establish an equitable means to fairly provide within a short period of time the monthly measured assessment as required within Clauses 37.1 and 38.2 of the D&C Contract. "3.1. Any procedures already defined within the D&C Contract shall take precedence over any of the following with regard to interpretation of Procedure and Basis for Assessing the Measurement and Progress of the Works."
"Where it is considered that there is a high risk of objects being dropped or thrown from the footbridge, consideration should be given to full or partial enclosure of the crossing and its ramps or stairs. The need for such provision shall be agreed with the Technical Approval Authority. Normally mesh infill will be suitable but if solid panels are specified they should be translucent with provision made for cleaning. The design of the enclosure shall be such that unauthorised access to the sides or the roof is prevented."
"CAMBBA is entitled to an Employer's Change to reflect the fact that the 80 metre strip of land at the top of the Southbound M42 on slip road at Dunton Island became available only after the Contract was concluded."
"That, on a true interpretation of the Contract, the land used by the Defendants in constructing the M42 southbound on-slip road at Dunton Island which did not form part of the Site was an Adjacent Area, the use of which did not involve a variation to the Employer's Requirements, nor entitle the Defendants to further sums."
"That on a true interpretation of the contract, the work required to be carried out in connection with the mandatory speed limits referred to in the Claimant's letter to the Defendants dated5th September 2003 did not constitute an Employer's Change."
"That any work involved in the modification of the automatic coin machines by reducing the height of the lower coin baskets did not entitle CAMBBA to an Employer's Change."
"Employer's Change number 14 ... "
"(1) There are no changes whatsoever to the proximity of traffic to any part of the gantry's structure (this includes traffic on any carriageway). "(2) There is no reduction in head room."
"That MEL is not entitled to any Price Adjustment under clause 39.6 or otherwise by reason of the purported relaxation referred to in their letter dated12th December 2002 ."
"That the drainage and installation of package treatment plant is a variation to the Employer's Requirements and CAMBBA is therefore entitled to the issue of an Employer's Change in respect of the change from cesspits to package treatment units. Upon the issue of such change, the provisions of clause 39.5 will apply and CAMBBA is entitled to have the Price Adjustment agreed or ascertained."
" (a) The additional and varied work identified in Annexure 1 was instructed by MEL in response to significant discoveries. "(b) CAMBBA is entitled to the issue of an Employer's Change in respect of the additional and varied work identified in Annexure 1 and any post-fieldwork following on therefrom. Upon the issue of such change the provisions of clauses 32 and 39.5 will apply and CAMBBA is entitled to have a Price Adjustment agreed or ascertained. "(c) Unless MEL obtains a Department's Change pursuant to clause 7.2, MEL is obliged to issue an Employer's Change under clause 27.1.2 for the disposal of all fossils and antiquities recovered from the Site. Upon the issue of such Employer's or Department's Change, the provisions of clauses 32 and 39.3 or 39.5 will apply and CAMBBA is entitled to have a Price Adjustment agreed or ascertained."
"The conditions of clause 17.3.4 of the Contract have not been met in respect of any Relevant Authority's Works and accordingly MEL is not entitled to receive the benefit of any Statutory Discounts."
"150. In the premises to bring MEL's requirements into line with the Employer's Requirements and to prevent MEL being in breach of its obligation to provide vacant possession, CAMBBA is entitled to treat the Vehicle Inspectorate as a Relevant Authority or Third Party with whom MEL has forced CAMBBA as its agent to enter into an agreement with. Pursuant to Clauses 6.4.3 and 6.4.4, this constitutes and entitles CAMBBA to the issue of an Employer's Change. Upon the issue of such change, the provisions of Clause 39.5 will apply and CAMBBA is entitled to have a Price Adjustment agreed or ascertained and CAMBBA seeks a declaration to that effect. "151. Alternatively, MEL could avoid being in breach of its obligation to give vacant possession by varying the Contract to make the Vehicle Inspectorate facility an Adjacent Area instead of being part of the Site. The Vehicle Inspectorate's works could then have been carried out as Unspecified Accommodation Works. Upon the issue of such instruction, the provisions of clause 36.3 will apply and CAMBBA is entitled to have a Price Adjustment agreed or ascertained."
"On a true interpretation of the contract, the requirement made by the Claimant in its letter dated18th November 2002 that the Defendants should enter into a Section 106 Agreement with Lichfield District Council, and to make a financial contribution of£30,000 under that agreement, did not constitute an Employer's Change."
"(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as 'a planning obligation'), enforceable to the extent mentioned in subsection (3)- (a) restricting the development or use of the land in any specified way; (b) requiring specified operations or activities to be carried out in, on, under or over the land; (c) requiring the land to be used in any specified way; or (d) requiring a sum or sums to be paid to the authority on a specified date or dates or periodically."