Case No: No HT-04-317,HT-05-57,HT-05-74
Neutral Citation Number: [2005] EWHC 2810 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISON
TECHNOLOGY AND CONSTRUCTION COURT
Court No 7
St Dunstan's House
133-137 Fetter Lane
London EC4A 1HD
Date: 14th November 2005
Before:
MR JUSTICE JACKSON
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Between:
MIDLAND EXPRESSWAY LIMITED |
Claimant |
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- and - |
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1. CARILLION CONSTRUCTION LIMITED |
Defendants |
(No. 1)
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JUDGMENT
(As Approved by the Court)
MR JOHN BLACKBURN QC and MR DARRYL ROYCE appeared on behalf of the Claimant.
MR DAVID STREATFEILD-JAMES QC and MS NERYS JEFFORD appeared on behalf of the Defendants.
JUDGMENT
Part 1. Introduction
Part 2. The contractual arrangements
Part 3. The present proceedings
Part 4. MEL's factual evidence
Part 5. CAMBBA's factual evidence
Part 6. Expert evidence
Part 7. The Belfry Agreement
Part 8. Provisional sums and aggregate tax
Part 9. Chasewater Footbridge
Part 10. Dunton Island
Part 11. Omission of Sign Gantries
Part 12. Mandatory speed limits
Part 13. Coin baskets
Part 14. Re-use of gantries
Part 15. Foul drainage
Part 16. Archaeology
Part 17. New roads and street works discounts
Part 18. Lodge Lane Link
Part 19. Vehicle Inspectorate
Part 20. Planning fee
Part 21. Conclusion.
Part 2. The Contractual Arrangements
"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 ...."
Clause 7.2:
"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..."
Clause 8:
"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 ..."
Clause 29:
"Fossils and Antiquities"
"Fossils and Antiquities as between the Secretary of State and the Concessionaire shall be deemed to be the absolute property of the Secretary of State. The Concessionaire 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 of such discovery and to carry out such instructions as the Department's Agent may give as to the disposal of the same. 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 Department's Agent shall issue a Department's Change in accordance with Clause 8 [Department's Changes] or the basis to be adopted in accordance with Clause 19.5.1.3 [Motorway Service Areas]."
"'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 ..."
"'Concessionaire' means Midland Expressway Limited, the company which is the second party hereto or any person to whom this Concession Agreement is assigned pursuant to Clauses 35.1.1 to 35.1.3 ..."
"'Highway Works' means the Highway Permanent Works and the Highway Temporary Works."
"'Highway Permanent Works' means that part of the Permanent Works relating to the design, construction and completion of the Project Facilities and all related side roads, drainage, accesses, accommodation works, and communication facilities, but shall not include any Entrusted Works.
"'Highway Temporary Works' means that part of the Temporary Works relating to the design, construction and completion of the Project Facilities and all related side roads, drainage and communication facilities, but shall not include any Entrusted Works ..."
"'MSA Works' means the MSA Permanent Works and the MSA Temporary Works."
"'MSA Permanent Works' means that part of the Permanent Works relating to the design, construction and completion of the Motorway Service Areas and all related drainage and communication facilities but shall not include any Entrusted Works."
"'MSA Temporary Works' means that part of the Temporary Works relating to the design, construction and completion of the Motorway Service Areas and all related drainage and communication facilities but shall not include any Entrusted Works. ..."
"'Technical Requirements' means the Department's Requirements and the Concessionaire's Construction Proposals and the other documents referred to in Parts 1 to 3 of Schedule 7 as may be amended from time to time ..."
"Department's Agent".
"The Secretary of State will appoint Consulting Engineers to act as the Department's Agent in order to receive the assurances he requires as to safety, quality and durability and to carry out the functions referred to in Clauses 5 [Pre-Concession Period] 7 [Design and Construction], 8 [Department's Changes], 10 [Access and Facilities for Department's Agent], 11 [Quality Assurance], 12 [Programme], 13 [Extensions of Time for Completion of the Highway Works], 19 [Motorway Service Areas] and set out in this Schedule 7 and Schedule 8.
"The Department's Agent will monitor the design, construction, completion, commissioning and testing of the Works and the completion of outstanding Works and the remedying of any defects during the period of maintenance as defined in the Construction Contract. The Department's Agent will also audit the Concessionaire's Quality system."
"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 on 12th February 1998. This Part 3 Schedule 6 describes the route at 20 April 2000 including the changes made to the route up to this date ...
2.1 (d):
"Between A460 and Churchbridge the route is in successive cuttings and embankments passing under Saredon Road and Walkmill Lane. The new A460 and A5 parallel route (Lodge Lane Link) is dual carriageway from the A460 to a roundabout junction with Saredon Road, and wide single carriageway up to a new roundabout at Churchbridge, which combines two existing roundabouts."
"'Accommodation Works' means the Specified Accommodation Works and/or the Unspecified Accommodation Works, as the context requires;
"'Adjacent Areas' means the areas which do not form part of the Site nor of the Motorway Service Area but upon which part of the Works are to be carried out;
"'Aggregate Tax' means any tax or levy imposed by the Government of the United Kingdom on or in connection with sands, gravels, aggregates and the like to be used in or about the Works including without limitation the commercial exploitation and/or import of aggregates (as such terms or similar terms are defined in the implementing legislation);
"'Change' has the meaning ascribed to it in the Concession Agreement;
"'Concession Agreement' means the agreement dated 28th February 1992 made between the Secretary of State and the Concessionaire together with Schedules 1 to 15 thereof.
"'Concession Road' means the Birmingham Northern Relief Road as outlined in the Employer's Requirements;
"'Construction Dispute' means a difference or dispute of whatever nature between the Employer and the Contractor arising under, out of or in connection with this Contract and includes, but is not limited to:
- any claim, demand or assertion as to contractual entitlement under this Contract made by either Party against the other Party, which is neither agreed nor disputed by such other Party;
- any dispute as to any decision, opinion, instruction, direction, certificate or valuation of the Employer, the Employer's Agent or the Certifying Engineer (whether during the progress of the Works or after their completion and whether before or after the determination, abandonment or breach of this Contract);
"'Contractor's Agent' has the meaning ascribed to it in Clause 13.2"
"'Contractor's Change' means a variation or amendment to the Employer's Requirements proposed by the Contractor and implemented in accordance with Clause 39.8"
"'Department's Agent' means Owen Williams Limited of Edgbaston House, Three Duchess Place, Hagley Road, Edgbaston, Birmingham B16 8NH or such replacement as may be appointed for the time being to represent the Secretary of State during the design and construction process and more particularly, to fulfil the role identified in Parts 4, 5 and 6 of Schedule 7 of the Concession Agreement."
"'Department's Change' means a Change as to the Department's standards or any additions, substitution or omission of any item of infrastructure initiated or implemented by the Department's Agent in accordance with Clause 8 of the Concession Agreement;"
"'Design Input Statement' means a statement which covers all relevant input to the subsequent design activity of a scheme or section of the Works which includes as a minimum:
- a brief description of the purpose of the scheme or section of the Works;
- a reference to the relevant Construction Documents;
- the Contractor's method of approach;
- the parameters or co-efficients that are assumed and the standards and computer programmes to be used;
- the source of the data and the applicable Statutory Requirements; and
- the proposed checks and frequency thereof;"
"'Design Review Procedure' means the procedure referred to in Part C of Appendix 4;"
"'Disputes Resolution Procedure' means the procedure referred to in clause 53 (Settlement of Disputes) and set out in Appendix 6 hereto;"
"'Effective Date' means the date on which the Employer notifies the Contractor that all the Project Conditions have been satisfied or waived;"
"'Employer's Change' means a variation to the Employer's Requirements initiated or implemented by the Employer in accordance with clause 39.5 (Employer's Change Procedure);"
"'Employer's Requirements' means the requirements of the Employer in respect of the Works, as set out in Appendix 2 hereto;"
"'Future Mining Works' means the design and construction of structures in areas of potential future mining in accordance with Annex 3/7 clause 7 of the Employer's Requirements;"
"'Highway Permanent Works' means that part of the Permanent Works relating to the design, construction and completion of the Concession Road and all related side roads, drainage, accesses, accommodation works and communication facilities (but for the avoidance of doubt excluding the MMA Works, the Tolling Works, the TCF Works and the Non-core Toll Collection System Works);
"'Highway Temporary Works' means that part of the Temporary Works relating to the design, construction and completion of the Concession Road and all related side roads, drainage, accesses, accommodation works and communication facilities (but for the avoidance of doubt excluding the MMA Works, the Tolling Works, the TCF Work and the Non-Core Toll Collection System Works);
"'Highway Works' means the Highway Permanent Works and the Highway Temporary Works;"
"'MMA Works' means that part of the Works relating to the Motorway Maintenance Areas all as more particularly identified in Sections 5.3 and 5.4 of the Employer's Requirements;"
"'MSA Works' means that part of the Works relating to the Motorway Service Area all as more particularly identified in Section 4 of the Employer's Requirements;"
"'Non-MSA Works' means the Works other than the MSA Works;"
"'Permit to Use' means the permit to be issued by the Department's Agent in accordance with the Concession Agreement prior to commercial operation of the Project Facilities;"
"'Price Adjustment' means any sum which is to be added to or deducted from the Contract Price (as specified at the date of this Contract) in accordance with the Contract and any separate payment, in respect of or in any way connected with the subject matter of this Contract which is payable by one Party to the other whether pursuant to any term of this Contract, by way of damages for breach of contract, on the basis of quantum meruit or otherwise;"
"'Pricing Schedule' means the document contained in Appendix 1 hereto;"
"'Project Facilities' means the Concession Road, the Motorway Maintenance Areas and the Tolling Control Facilities and includes (for the avoidance of doubt) the Tolling Works;"
"'Provisional Sum' means a sum included and so identified in the Pricing Schedule for the execution of any part of the Unspecified Accommodation Works or the Future Mining Works or the expenditure of Aggregate Tax up to the maximum provided for in Clause 36.3.3 which sum may be used in whole or in part in accordance with the instruction of the Employer given in accordance with clause 36.3 (Provisional Sums);"
"'Relevant Authorities means those entities identified in Part A of Appendix 10 hereto whose authority is or may be required for the carrying out of all or part of the Works;"
"'Relevant Authorities Works" means any work required by a Relevant Authority to be undertaken as a consequence of or in order to facilitate the carrying out and completion of the Works, including any replacement, re-routing or diversion of utilities or services, whether temporarily or permanently, and any abandonment or stopping of redundant services or general disconnection;"
"'Schedule of Prices' means the schedule of prices contained in Part A of the Pricing Schedule;"
"'Schedule of Rates' means the schedule of rates and prices contained in Part B of the Pricing Schedule;"
"'Site' means the land, spaces, waterway, roads and any surface required for the Project Facilities, an indication of the general area of which is identified in the drawings numbered SDP-CEH O1-19 inclusive;"
"'Statutory Discount' means the amount of savings given or credit allowed by a Relevant Authority pursuant to section 85 of the New Roads and Street Works Act 1991 and regulations made thereunder in respect of Relevant Authorities' Work in respect of any allowable cost to be borne by that Relevant Authority in accordance;"
"'Toll Collection System' means the equipment and systems for the toll collection system for the Concession Road;"
"'Toll Collection System Proposal' means the Contractor's proposal for a Toll Collection System to meet the requirements of the Toll Collection System Requirements Specification;"
"'Toll Collection System Sub-Contract' means a contract between the Contractor and the Toll Collection System Sub-contractor for the carrying out of the Toll Collection System Works."
"'Toll Collection System Sub-contractor means Ascom Monetel SA or such other person as may be substituted for it from time to time with the prior written consent of the Employer;"
"'Toll Collection System Requirements Specification' means the specification for the Toll Collection System Works as set out in Section 6 of the Employer's Requirements."
"'Toll Collection System Works' means the Core Toll Collection System Works and the Non-Core Toll Collection System Works;"
"'Unspecified Accommodation Works' means all accommodation works and licences (other than the Specified Accommodation Works) necessary for the Permanent Works but excluding all accommodation works and licences that are necessary for the design, construction and removal of the Temporary Works and for the purposes of this definition (i) 'accommodation works' means work of any kind whatsoever (including without limitation the modification, improvement or regrading of land, the design and construction of modified, substituted or new structures, services or infrastructure and the supply and/or erection of fences, barriers or other forms of protection) that are required by any Statutory Requirement (or are otherwise necessary) to be provided to any person with an interest in land adjacent to the Site, the Adjacent Areas or Motorway Service Area and (ii) 'licences' means rights in, under or over land adjacent to the Site, the Adjacent Areas or the Motorway Service Area;"
"'Works" means the Highway Works, the MSA Works, the MMA Works, the Tolling Works, the TCF Works, the Non-core Tool Collection System Works and, where the Advance Works Contract is entered into between the Employer and the Contractor, the Advance Works, together with all other works to be done and services, goods, materials and equipment to be supplied by the Contractor under this Contract including the production of the Detailed Design and the Detailed Drawings;"
"6.1.1 The Related Agreements are:
- The Concession Agreement;
- The Financing Agreements;
- The Licence; and.
- 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:
- In the case of the Department's standards those appearing in Annex 1/2 of the Employer's Requirements;
- 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;
- 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 "Employer's Agent."
12.2.1 The Employer may from time to time by notice in writing to the Contractor appoint a person as Employer's Agent who shall be entitled to exercise such powers and perform such duties of the Employer under this Contract as the Employer may specify in the notice including those power and duties of the Certifying Engineer who may be appointed by the Employer in accordance with clause 12.4.1. The appointment shall not take effect until a signed copy of the Employer's notice is delivered to the Contractor ."
"Contractor's Agent."
The Contractor or a competent or authorised agent or representative approved in writing by the Employer ("Contractor's Agent") is to be constantly on the Works and shall give his whole time to the superintendence of the same. The Contractor's Agent shall be in full charge of the Works and shall receive on behalf of the Contractor directions and instructions from the Employer. The Contractor's Agent shall be responsible for the safety of all operations. Within 7 days of the Effective Date the Contractor shall notify the Employer of the identity of its proposed 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:
- Determining the scope of the Relevant Authorities' Works;
- The design of and the methodology for the carrying out of such Relevant Authorities' Works;
- All necessary planning permissions and consents; and
- 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;
- 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
- 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 the Street 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:
- Ensure that all of its obligations under this Contract are carried out in compliance with all applicable Statutory Requirements;
- 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
- 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
"The Contract Price is a fixed price lump sum and shall not be subject to remeasurement or any other adjustment save in accordance with the express provisions of this Contract.
36.3 Provisional Sums.
36.3.1 The Employer shall be entitled to instruct the Contractor to expend or execute in whole or in part any work in respect of which a Provisional Sum is stated in the Pricing Schedule (as the case may be). If the Employer issues such an instruction such expenditure shall, subject to clause 36.3.3, be added to the Contract Price and such work shall form part of the Works (as the case may be) and the Contractor shall be entitled to a Price Adjustment on the basis referred to in clause 39.6.1 (a)
36.3.2 Without prejudice to clause 15.4 (Sufficiency of Contract Price), the Contractor shall be deemed to have allowed the necessary time and resources to enable the work relating to the Provisional Sum to be executed and satisfied itself as to all risks and matters associated with such execution, provided that any instruction for the expenditure of the Provisional Sum is given by the Employer within a reasonable time of the Effective Date, and the Contractor is not accordingly entitled to any extension of any Completion Period for the execution of work instructed in accordance with clause 36.3.1.
36.3.3 The Price Adjustment to which the Contractor is entitled for the expenditure of the Provisional Sum in respect of Aggregate Tax shall not:
- In the case of imported materials incorporated by the Contractor in the Works, exceed the sum equal to the amount of Aggregate Tax levied on 1,800,000 tonnes of such materials; and
- In the case of in-situ materials on the Site which the Contractor excavates or quarries and are incorporated in the Works, exceed the sum equal to the amount of Aggregate Tax levied on 3,000,000 tonnes of such materials."
"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.
"Subject as provided in clause 37.3 (Limit on Payments), each month the Contractor shall be entitled to be paid:
37.2.1 the amount calculated in accordance with clause 37.1 (Payment of Items in the Schedule of Prices) and clause 38.2 (Monthly Measurement); and
37.2.2 all such other amounts to which the Contractor has become entitled during that month in accordance with the express terms of the Contract."
"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.
"The Employer may at any time prior to the issue of the Maintenance Certificate issue a request in writing to the Contractor for a Department's Change.
39.2 Employer's Change.
The Employer may at any time prior to the issue of the Maintenance Certificate issue a request in writing to the Contractor for an Employer's Change in respect of the Works."
"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:
- Reject the proposed Contractor's Change; or
- 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:
- The Contractor shall have complied fully with the provisions of clauses 40.3.2, 40.3.3 and 40.3.4; and
- 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."
This section includes the following provisions:
"1.1 Preamble.
1.1.3 Except where otherwise directed, all materials, workmanship, design and construction shall comply with:
- Standards, including Advice Notes and other documents listed in Annex 6-1, and Annex 1/2 as modified and extended by Annex 1/16 ...
- Undertakings given at the Public Inquiry and undertakings arising from the Secretary of State's Decision Letter of 23rd 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 ...."
"TAA means the Technical Approval Authority appointed in accordance with Schedule 7, Part 1, Section 1 paragraph 2.6 of the Concession Agreement save that in respect of the Rail Line Underbridges it shall mean Railtrack PLC ...
1.5 Employer's Drawings
1.5.1 Employer's Drawings are listed at Annexes 1/5 and 3/5 to the Employer's Requirements. The status of each series of drawings is indicated in the following table as defined by one of the categories below:
"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.
"Post Decision Scheme Road Works Plan/Profiles. Status: Provisional Drawings. Comment: The Highway alignments shown on these drawings may be modified by agreement with the relevant highway authorities but only to the extent that they remain within the Made Statutory Orders ..."
"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:
- cease the stripping of topsoil and other soils and materials in the vicinity of the feature of possible interest;
- 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."
There then follows a schedule of structures which includes the entry "New Structure type, Gantries, Number 68 ...
3.2 Existing Structures.
3.2.1 An indication of the existing Structures forming part of the Works and requiring initial maintenance, alteration, demolition, strengthening or reconstruction are listed in Annex 3/2."
"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.
"The Contractor shall procure that all Archaeological Works are designed and carried out in accordance with the Code of Conduct of the Institute of Field Archaeologists, the relevant Standard and Guidance documents issued by the Institute of Field Archaeologists, and the relevant guidance documents issued by English Heritage.
The Contractor shall submit archaeological drawings and Design Input Statements to the Employer in accordance with the Design Process, and shall copy them to English Heritage and the relevant Local Authority Archaeologist (as appropriate). The archaeological Design Input Statements shall be Written Schemes of Investigation as required in accordance with the 'BNRR Archaeological Project Design: General Strategy and Methodology' (referred to below as the General Project Design).
Where more than one stage of archaeological works are required in accordance with the 'BNRR Archaeological Project Design: General Strategy and Methodology' (referred to below as the General Project Design), updated archaeological drawings and Design Input Statements shall be submitted in advance of each stage of archaeological works.
The Contractor shall, prior to submitting any archaeological drawings and Design Input Statements, agree liaison procedures with each of English Heritage and the relevant Local Authority Archaeologists.
The Employer may comment on an archaeological drawing or Design Input Statement on the grounds that the relevant archaeological drawing or Design Input Statement:
- is not in accordance with the General Project Design;
- does not take into account any relevant archaeological information in respect of the relevant archaeological site;
- does not comply with the Code of Conduct of the Institute of Field Archaeologists, the relevant Standard and Guidance documents issued by the Institute of Field Archaeologists, or the relevance guidance documents issued by English Heritage;
- does not comply with the Employer's Requirements;
- does not comply with Good Industry Practice.
In reviewing any archaeological drawings or Design Input Statements, the Employer will take into account any views expressed by the English Heritage or the relevant Local Authority Archaeologist.
The Contractor shall not carry out any Works within any part of the Site or Adjacent Areas which are subject to any archaeological works until the archaeological drawings and Design Input Statements submitted under Review Procedure have been returned marked received."
"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
"Gantries shall be used to mount Advance Direction Signs, tolling signs and signals in accordance with paragraph 2.10 and 2.12 of the Employer's Requirements.
5.2. Loading
"All gantries shall be designed to the full loading requirements of BD 51/98 including provision for signalling, and including impact loading as a result of Department's Change No 1.
5.3 Provision for Signalling
"Sign only gantries shall be designed such that any additional structural metal work can be added to accommodate the signalling without redesign of the gantry structure itself ...
5.6 Re-use of gantries
Existing gantries may be re-used providing they comply at a minimum with the following requirements.
- a satisfactory structural assessment to BD 51/98.
- the gantry must satisfy clauses 5.2 and 5.3 above.
- the minimum sign area shall be 5m high and extend the full width of the gantry ...."
"Drainage. Underground drains will be provided to collect both foul and surface wall."
"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 "Toll Collection System Requirements Specification".
This Toll Collection System Requirement Specification outlines the general requirements and parameters for the Toll Collection System and is not an exhaustive statement of the requirements for the Toll Collection System Works ...
1.3 System Overview.
The Toll Collection System is a system that is installed as part of the Works. The mission of the TCS is to allow the efficient, error-free processing of toll collection at the BNRR.
The Toll Collection System is based on the concept of a so called "open toll system", which implies that the Customer is required to pay toll fees at only one charging point, the Toll Station. Each Toll Station consists of a number of Lanes, closed with a barrier to prevent the passage of non-paying Customers.
The Toll Collection System comprises the complete system required to charge fees at the Toll Stations and to support the Employer in operating the system ..."
"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."
2.3 The Contractor shall participate in regular traffic management meetings with the Employer, the Highways Agency and their maintaining agents, other relevant Highway Authorities, Police and other parties as may be specified by the Employer, throughout the traffic management period, to liaise on all matters relating to traffic management including inter alia:
- layout of traffic management schemes ... "
2.8 The Contractor shall be responsible for obtaining all necessary approvals, authorisations and/or agreements in relation to his proposed Traffic Safety and Management System from the relevant highway authorities and the Police, in advance of its implementation. The Contractor shall agree with the authorities concerned the period of prior notice required to obtain such approvals, authorisations and/or agreements."
"1. The likely operating speeds (design speeds) and mandatory speed limits shall be as follows:
BNRR-main route.
Design speed: 120 kilometres per hour.
"Mandatory Speed Limit: 70 miles per hour ... "
"Before using these figures for design of traffic signs, the Contractor shall satisfy himself as to the proposed design speed and/or prevailing mandatory speed limit at the particular locations being considered. Reference should also be made to the side road design standards given in Annex 1/2.
"2. The installation of mandatory signs shall be complete before new roads are opened to traffic."
"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 ..."
Part 3. The Present Proceedings
MEL's factual evidence.
CAMBBA's factual evidence.
The expert evidence.
Part 4. MEL's Factual Evidence
JONATHAN LANGHAM
Chasewater Footbridge
Dunton Island
Mandatory Speed Limits
The Belfry Agreement
"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" which adequately reflects the agreements and discussions that have taken place between ourselves."
"Statement of Intent".
"Both MEL and CAMBBA will work together to achieve the timely and successful opening of the Project by the end of September 2003. Annex 1 contains a list of letters itemising certain issues which it is agreed CAMBBA will not pursue in respect of claims for extension of time and/or Price Adjustment against MEL. Both parties agree that they will work together to achieve a final account price of £485.5 million with pricing adjustments only applying in respect to increases or decreases in the Scope of Works, Provisional Sums, claims against the Highways Agency and any other Third Party or Relevant Authority and other unforeseen events or circumstances as provided for in the Contract.
"Where departures from Standards are technically acceptable, MEL will not seek any price reductions as a condition of acceptance unless in doing so MEL would suffer loss, damage or diminution in value. This applies to Departures that have already been accepted technically and those which are being or may be proposed."
Omission of Gantries
Mr Langham considered that the phrase in paragraph 3.2.1.1.2[15] "over the carriageways" meant that the signs had to be gantry-mounted.
"Gantries for Toll Plazas".
"It was agreed that two gantries on the approach to mainline toll plazas would be sufficient, the 1 mile signs could be post mounted. It was also agreed that gantries would not be required on approaches, slip road toll plazas if a safe system of post mounted signage could be designed. Babtie to confirm basis of Atkins Odlin design at tender stage."
"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