The East Midlands Gateway Rail Freight Interchange and Highway Order 2016

SCHEDULES

Article 38

SCHEDULE 19 FOR THE PROTECTION OF HIGHWAYS ENGLAND

Application

1.  The provisions of this Schedule have effect.

Interpretation

2.  In this Schedule—

“as built information” means one digital copy of the following information—

(a)

as constructed drawings in both PDF and AutoCAD DWG formats for anything designed by the undertaker;

(b)

list of supplies and materials, test results and CCTV drawings;

(c)

product data sheets, technical specifications for all materials used;

(d)

as constructed information for any utilities discovered or moved during the works;

(e)

method statements for works carried out;

(f)

in relation to road lighting, signs and traffic signals any information required by Series 1400 of the Specification for Highway Works;

(g)

organisation and methods manuals for all products used;

(h)

as constructed programme;

(i)

test results and records; and

(j)

other such information as may be reasonably required by Highways England to be used to update any relevant databases;

“the bond sum” means the sum equal to 110% of the cost of the carrying out of the phase of highway works concerned or such other sum agreed between the undertaker and Highways England;

“the cash surety” means the sum of £200,000.00 or such other sum agreed between the undertaker and Highways England;

“the commuted sums” means the commuted sums calculated in accordance with paragraph 10;

“contractor” means any contractor or sub-contractor appointed by the undertaker to carry out the highway works or any phase of the highway works and approved by Highways England under paragraph 3(2);

“detailed design information” means the following drawings, specifications and other information which must be in accordance with the general arrangements shown on the relevant regulation 6(2) plans—

(a)

site clearance details;

(b)

boundary environmental and mitigation fencing;

(c)

road restraint systems (vehicle and pedestrian);

(d)

drainage and ducting;

(e)

earthworks;

(f)

road pavements;

(g)

kerbs, footways and paved areas;

(h)

traffic signs, signals and road markings;

(i)

road lighting (including columns and brackets);

(j)

CCTV masts and cantilever masts;

(k)

electrical work for road lighting and traffic signs;

(l)

motorway communications;

(m)

highway structures;

(n)

landscaping; and

(o)

utilities diversions,

where relevant to the phase concerned;

“estimated costs” means the estimated costs in respect of each phase agreed under paragraph 5(1) and (5);

“the excess” means the amount by which Highways England estimates that the costs referred to in paragraph 5(1) will exceed the estimated costs under paragraph 5(5)(b);

“highway works” means that part of the authorised development to be carried out in the areas identified as i, ii, vi and ix on the highway works components plans the general arrangement of which is shown on the relevant regulation 6(2) plan and any works ancillary to that part of the authorised development;

“nominated persons” means the undertaker’s representatives or the contractors’ representatives on site during the carrying out of the highway works;

“phase” means that part of the highway works which is to be carried out in separate phases in the areas identified as i, ii, vi and ix on the highway works components plan except that components ii and ix is a single phase, or such other phasing arrangements as are agreed with Highways England;

“programme of works” means a document setting out the sequence and timetabling of works for the phase in question;

“relevant regulation 6(2) plans” means Documents 2.4A, 2.4B, 2.4E, 2.4H, 2.4J, 2.4M and 2.4N certified under article 39 (certification of plans etc.);

“Road Safety Audit Standard” means the Design Manual for Roads and Bridges Standard HD 19/15 or any replacement or modification of that part of the Manual; and

“utilities” means any pipes, wires, cables or equipment belonging to any person or body having power or consent to undertake street works under the 1991 Act.

Prior approvals and security

3.—(1) No work is to commence on any phase of the highway works until the detailed design information and a programme of works in respect of that phase has been submitted to and approved by Highways England and, in the case of phase ix identified on the highway works component plans, also submitted to and approved by Leicestershire County Council, such approvals not to be unreasonably withheld or delayed.

(2) No works are to commence on any phase of the highway works other than by a contractor employed by the undertaker but first approved by Highways England, such approval in respect of each phase not to be unreasonably withheld or delayed.

(3) No work is to commence on any phase of the highway works until the undertaker has provided security for the carrying out of those works as provided for in paragraph 8 or some other form of security acceptable to Highways England.

(4) No work is to commence on any phase of the highway works until Highways England have considered whether a temporary traffic regulation order is necessary for that phase and if necessary Highways England have approved and made the necessary temporary traffic regulation order.

(5) No work is to commence on any phase of the highway works until a Stage 2 Road Safety Audit has been carried out in respect of that phase in accordance with the Road Safety Audit Standard and if necessary all issues raised incorporated into an amended design approved by Highways England or any relevant exceptions approved by Highways England.

(6) No work is to commence on any phase of the highway works until traffic management provisions have been agreed with Highways England, such agreement not to be unreasonably withheld or delayed.

(7) No work is to commence on any phase of the highway works until stakeholder liaison has taken place in accordance with a scheme for such liaison agreed between the undertaker and Highways England.

Carrying out of works

4.—(1) If the undertaker commences the authorised development the undertaker must design construct, test and commission the highway works.

(2) The undertaker must prior to commencement of each phase of the highway works give Highways England 28 days’ notice in writing of the proposed date on which that phase will start.

(3) The undertaker must comply with Highways England’s usual road space booking procedures prior to and during the carrying out of each phase of the highway works and no highway works for which a road space booking is required can commence without a road space booking having first been secured.

(4) Each phase of the highways works must be carried out to the satisfaction of Highways England in accordance with—

(a) the relevant detailed design information;

(b) a programme of works approved under paragraph 3(1) or as subsequently varied by agreement between the undertaker and Highways England;

(c) the Design Manual for Roads and Bridges, the Specification for Highway Works (contained within the Manual of Contract Documents for Highways Works) and any amendment to or replacement of those documents for the time being in force except to the extent that they are a departure from such standards and have been approved by Highways England and such approvals or requirements of Highways England in paragraph 3 that need to be in place prior to the works being undertaken; and

(d) all aspects of the Construction (Design and Management) Regulations 2015 or any statutory amendment or variation of the same and in particular the undertaker must ensure that all client duties (as defined in the said Regulations) are satisfied and must indemnify Highways England against all claims, damages, costs, losses, liabilities and actions arising out of a failure to do so.

(5) The undertaker must permit and require the contractor to permit at all reasonable times persons authorised by Highways England (whose identity must have been previously notified to the undertaker) to gain access to the highway works for the purposes of inspection and supervision and the undertaker must provide to Highways England contact details of the nominated persons with whom Highways England should liaise during the carrying out of the highway works.

(6) At any time during the carrying out of the highway works the nominated persons must act upon any request made by Highways England in relation to the carrying out of the highway works as soon as practicable following such request being made to the nominated persons except to the extent that the contents of such request are inconsistent with or fall outside the contractor’s obligations under its contract with the undertaker or the undertakers obligations in this Order.

(7) If at any time the undertaker does not comply with any of the terms of this Schedule in respect of any phase of the highway works having been given notice of an alleged breach and an adequate opportunity to remedy it by Highways England then Highways England is on giving to the undertaker 14 days’ notice in writing to that effect entitled to carry out and complete that phase of the highway works and any maintenance works which the undertaker would have been responsible for on the undertaker’s behalf and the undertaker must within 28 days of receipt of the itemised costs pay to Highways England the costs so incurred by Highways England.

(8) Nothing in this Schedule prevents Highways England from carrying out any work or taking such action as deemed appropriate straight away without prior notice to the undertaker in the event of an emergency or danger to the public, the cost to Highways England of such work or action being chargeable to and recoverable from the undertaker if the need for such action arises from the carrying out of the highway works.

(9) For the avoidance of doubt it is confirmed that the undertaker in carrying out each phase of the highway works must at its own expense divert or protect all utilities as may be necessary to enable the highway works to be properly carried out and all agreed alterations to existing services must be carried out to the reasonable satisfaction of Highways England.

Payments

5.—(1) The undertaker must fund the whole of the highway works costs and all costs incidental to the highway works and must also pay to Highways England in respect of each phase of the highway works a sum equal to the whole of any costs and expenses which Highways England incur, (the estimated costs), including costs and expenses for using external staff and resources as well as costs and expenses of using in house staff and resources in relation to the highway works and arising out of it and its implementation including without limitation on the scope—

(a) the checking and approval of all design work carried out by or on behalf of the undertaker for that phase;

(b) costs in relation to agreeing the programme of works for that phase;

(c) the carrying out of supervision of that phase of the highway works;

(d) all legal and administrative costs in relation to paragraphs (a) and (b); and

(e) all costs in relation to the transfer of any land required for the highway works.

(2) The sums referred to in subparagraph (1) do not include any sums payable from the undertaker to the contractor but do include any value added tax which is payable by Highways England in respect of such costs and expenses and for which it cannot obtain reinstatement from HM Revenue and Customs.

(3) The undertaker must pay to Highways England upon demand the total costs properly and reasonably incurred by Highways England in undertaking any statutory procedure or preparing and bringing into force any traffic regulation order or orders necessary to carry out or for effectively implementing the highways works and whether or not such procedure or order is or are experimental, temporary or permanent provided that this paragraph does not apply to the making of any orders which duplicate orders contained in this Order.

(4) The undertaker and Highways England must agree a schedule of the estimated costs to be incurred under sub-paragraph (1) in respect of each phase prior to the commencement of that phase.

(5) The undertaker must make the payments referred to in sub-paragraph (1) as follows—

(a) the undertaker must pay a sum equal to the agreed estimated costs in respect of a phase prior to commencing that phase; and

(b) if at any time or times after the payment in respect of a phase referred to in paragraph (5)(a) has become payable the Highways England estimates that the costs in respect of that phase referred to in sub-paragraph (1) will exceed the estimated costs for that phase it may give notice to the undertaker of the amount by which it then estimates those costs will exceed the estimated costs (“the excess”) and the undertaker must pay to Highways England within 28 days of the date of that notice a sum equal to the excess.

(6) If Highways England have received the as built information within 91 days of the issue of the final certificate for each phase of the highway works under paragraph 7, Highways England must give the undertaker a final account of the costs referred to in sub-paragraph (1) and within 28 days from the expiry of the 91 day period—

(i) if the account shows a further sum as due to Highways England the undertaker must pay to Highways England the sum shown due to it in that final account; and

(ii) if the account shows that the payment or payments previously made have exceeded those costs Highways England must refund the difference to the undertaker.

(7) If any payment due under any of the provisions of this Schedule is not made on or before the date on which it falls due the party from whom it was due must at the same time as making the payment pay to the other party interest at 1% above the rate payable in respect of compensation under section 32 (rate of interest after entry on land) of the Land Compensation Act 1961(1) for the period starting on the date upon which the payment fell due and ending with the date of payment of the sum on which interest is payable together with that interest.

Provisional certificate and defects period

6.—(1) As soon as each phase of the highway works has been completed and a Stage 3 Road Safety Audit for that phase has been carried out in accordance with the Road Safety Audit Standard and any resulting recommendations complied with Highways England must issue a provisional certificate of completion in respect of that phase such certificate not to be unreasonably withheld or delayed.

(2) Highways England must also issue a defects list to the undertaker together with timescales within which defects are to be resolved. The undertaker must at its own expense remedy any defects in that phase of the highway works as reasonably required to be remedied by Highways England and identified by Highways England during a period of 12 months from the date of the provisional certificate in respect of that phase.

(3) The undertaker must submit Stage 4(a) and Stage 4(b) Road Safety Audits as required by and in line with the timescales stipulated in the Road Safety Audit Standard. The undertaker must comply with the findings of the Stage 4(a) and 4(b) Road Safety Audit reports inclusive of conducting any works that are required.

(4) Highways England must approve the audit brief and curriculum vitaes for all Road Safety Audits and exceptions to items raised, if appropriate, in accordance with the Road Safety Standard.

Final certificate

7.—(1) The undertaker must apply to Highways England for the issue of the final certificate in respect of each phase at the expiration of the 12-month period in respect of that phase referred to in paragraph 6(2) or on a date on which any defects or damage arising from defects during that period has been made good to the reasonable satisfaction of Highways England (not to be unreasonably withheld or delayed) and when making such application the undertaker must—

(a) submit to Highways England the health and safety file and as built information of the relevant phase; and

(b) provide a plan clearly identifying the extent of any land which is to be highway maintainable at public expense by Highways England.

(2) If the provisions of sub-paragraph (1) are satisfied Highways England must as soon as reasonably practicable issue a final certificate for the phase concerned.

Surety

8.—(1) Subject to paragraph 3(3) the undertaker must provide security for the carrying out of the highway works as follows—

(a) prior to the commencement of each phase the highway works within that phase must be secured by a bond first approved by Highways England, drafted substantially as detailed in Form 1 contained in paragraph 9 or in such other form that may be agreed between the undertaker and Highways England to indemnify Highways England against all losses, damages, costs or expenses arising from any breach of any one or more of the obligations of the undertaker in respect of that phase under the provisions of this Schedule provided that the maximum liability of the bond must not exceed the bond sum relating to that Phase; and

(b) prior to the commencement of the highway works the undertaker must provide the cash surety which may be utilised by Highways England in the event of the undertaker failing to meet its obligations to make payments under paragraph 5 or to carry out works the need for which arises from a breach of one or more of the obligations of the undertaker (which must for the avoidance of doubt be a single cash surety for the entirety of the highway works).

(2) Each bond sum and the cash surety (the latter in respect of the final phase only) must be progressively reduced as follows—

(a) on receipt of written confirmation (including receipt of receipted invoices evidencing payments made by the undertaker to the contractors) from the undertaker of the payments made from time to time to the contractor, Highways England must in writing authorise the reduction of the bond sum and (in respect of the final phase only) the cash surety by such proportion of the surety sum and cash deposit as amounts to 80% of those payments;

(b) within 20 working days of completion of each phase of the highway works (as evidenced by the issuing of the provisional certificate in respect of that phase under paragraph 6(1)) Highways England must in writing release the bond provider from its obligations by 80% of the bond sum in respect of that phase except in so far as any claim or claims have been made against the bond or liability on its part has arisen prior to that date and (in respect of the final Phase only) return 80% of the cash surety to the undertaker; and

(c) within 20 working days of the issue of the final certificate for each phase of the highway works referred to in paragraph 7 Highways England must in writing release the bond provider from all its obligations in respect of that phase subject to Highways England having received the documents referred to in paragraph 7(1)(a) and (b) and except in so far as any claim or claims have been made against the bond or liability on its part has arisen prior to that date and (in respect of the final phase only) must release the remainder of the cash surety to the undertaker.

9.  Form 1 as referred to in paragraph 8(1)(a) is—

Commuted sums

10.—(1) Prior to the commencement of each phase of the highway works the undertaker is to be provided with an estimate of the amount of the commuted sum in respect of the maintenance costs of that phase of the highway works to be incurred following the issue of the final certificate, if any and following completion of that phase of the highway works the undertaker must pay to Highways England the commuted sum within 28 days of the date of the final certificate. The commuted sum must be calculated in line with FS Guidance S278 Commuted Lump Sum Calculation Method dated 18th January 2010, except that—

(a) the agreed commuted sum in respect of the highway bridge structures within Phase ii identified on the highway works component plans is £931,197.57; and

(b) the agreed commuted sum in respect of the highway bridge structure within Phase viii identified on the highway works component plans is £1,046,151.18.

(2) If the form of any structures referred to in sub-paragraph (1)(a) and (b) changes significantly from that contained in the approval in principle already submitted to and approved by Highways England then the calculation of the figure in sub-paragraph (1)(a) or (b) as the case may be must, if requested by either the undertaker or Highways England, be recalculated in accordance with the FS Guidance S278 Commuted Lump Sum Calculation Method dated 18th January 2010.

Insurance

11.  The undertaker must, prior to commencement of the highway works, effect public liability insurance with an insurer in the minimum sum of £10,000,000.00 against any legal liability for damage loss or injury to any property or any person as a direct result of the execution of the Highway Works or any part of them by the undertaker.

Indemnification

12.  The undertaker must, in relation to the carrying out of the highway works, take such precautions for the protection of public and private interests as would be incumbent upon it if it were the highway authority and must indemnify Highways England from and against all costs expenses, damages, losses and liabilities arising from or in connection with or ancillary to any claim, demand, action or proceedings resulting from the design, carrying out or maintenance of the highway works, including but without limitation on the scope of this paragraph any claim against Highways England under the Land Compensation Act 1973(2) or by virtue of the application of the provisions of the Noise Insulation Regulations 1975(3), including any liability falling upon Highways England by virtue of its exercising its discretionary powers under the said Regulations.

Warranties

13.  The undertaker must procure warranties from the contractor and designer of each phase of the highway works to the effect that all reasonable skill care and due diligence must be exercised in designing and constructing that phase of the highway works including the selection of materials, goods, equipment and plant; such warranties to be provided to Highways England before that phase of the highway works commences.

(1)

1961 c. 33.

(2)

1973 c. 26.

(3)

S.I. 1975/1763, amended by S.I. 1988/2000.