24. For the protection of Exolum the following provisions, unless otherwise agreed in writing at any time between the undertaker and Exolum, have effect until the commencement of the operation of the authorised development.
25. In this Protective Provision—
“apparatus” means the pipe-line and storage system and ancillary apparatus owned, operated or maintained by Exolum and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;
“Exolum” means Exolum Pipeline System Ltd and Exolum Immingham Limited and any successor in title;
“functions” includes powers and duties;
“in” in a context referring to apparatus in land, includes a reference to apparatus under, over or upon land;
“pipe-line” means the whole or any part of a pipe-line belonging to or maintained by Exolum and includes any ancillary works and apparatus; all protective wrappings, valves, sleeves and slabs, cathodic protection units, together with ancillary cables and markers; and such legal interest and benefit of property rights and covenants as are vested in Exolum in respect of those items;
“plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed;
“premises” means land that Exolum owns, occupies or otherwise has rights to use including but not limited to storage facilities and jetties;
“specified work” means any work which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or (wherever situated) impose any load directly upon any apparatus or involve embankment works within 15 metres of any apparatus; and
“working day” means any day other than a Saturday, Sunday or English bank or public holiday.
26. Irrespective of any provision in this Order or anything shown on the land plans—
(a)the undertaker may not acquire any apparatus, premises or any right of Exolum in respect of any apparatus or any of Exolum’s interests in land;
(b)the undertaker must not obstruct or render less convenient the access to any apparatus or premises or interfere with or affect Exolum’s ability to operate the apparatus, otherwise than by agreement with Exolum, agreement not to be unreasonably delayed or withheld;
(c)any right of Exolum to maintain, repair, renew, adjust, alter or inspect any apparatus may not be extinguished by the undertaker until any necessary alternative apparatus which allows Exolum to fulfil its functions in a manner not less efficient than previously has been constructed and is in operation to the reasonable satisfaction of Exolum;
(d)the undertaker must not require that any apparatus is relocated or diverted or removed, otherwise than by agreement with Exolum; and
(e)where alternative apparatus is proposed or reasonably necessary in consequence of the exercise of any of the powers conferred by the Order, the undertaker must afford to Exolum the necessary facilities and rights for the construction of any alternative apparatus.
27.—(1) In this paragraph—
“relevant works” means any works forming any part of the authorised development as do, will or are likely to affect any apparatus or Exolum’s access to any apparatus including those which involve—
a physical connection or attachment to any apparatus;
works within 15 metres of any apparatus;
the crossing of any apparatus by other utilities;
the use of explosives within 400 metres of any apparatus; or
piling, undertaking of a 3D seismic survey or the sinking of boreholes within 30 metres of any apparatus.
(2) Unless a shorter period is otherwise agreed in writing between the undertaker and Exolum, not less than 35 days before commencing any relevant works, the undertaker must submit to Exolum the works details for the relevant works and such further particulars as Exolum may reasonably require and submit to the Undertaker within 28 days of receipt of the works details and no relevant works are to be commenced until Exolum, acting reasonably, has approved the works details.
(3) The relevant works must be executed only in accordance with the works details approved by Exolum under this sub-paragraph 3 including any reasonable requirements notified to the undertaker by Exolum and Exolum shall be entitled to observe and inspect the execution of those works.
(4) Nothing in this Schedule shall authorise the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 3 metres of the apparatus unless that apparatus is redundant and disconnected from Exolum’s remaining system.
(5) If Exolum, in accordance with sub-paragraph 27(2), and in consequence of the works proposed by the undertaker, reasonably requires the removal of any Apparatus and gives written notice to the undertaker of that requirement, this deed applies as if the removal of the Apparatus had been required by the undertaker and agreed with Exolum pursuant to sub-paragraph 27(2).
(6) Nothing in this sub-paragraph (6) precludes the undertaker from submitting at any time or from time to time, but (unless otherwise agreed in writing between the undertaker and Exolum) in no case less than 28 days before commencing the execution of any relevant works, new works details, instead of the works details previously submitted, and having done so the provisions of this sub-paragraph 6 apply to and in respect of the new works details.
(7) In relation to works which will or may be situated on, over, under or within 15 metres measured in any direction of the apparatus, or (wherever situated) impose any load directly upon the apparatus or involve embankment works within 15 metres of the apparatus, the works details to be submitted to Exolum under sub-paragraph 27(2) shall be detailed including a method statement describing—
(a)the exact position of the works;
(b)the level at which the works are to be constructed or renewed;
(c)the manner of their construction or renewal;
(d)the position of the apparatus; and
(e)by way of detailed drawings, every alteration proposed to be made to the apparatus.
28.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to Exolum the reasonable costs and expenses incurred by Exolum in, or in connection with—
(a)the inspection, removal, alteration or works for the protection of any apparatus;
(b)the observation and inspection of the execution of any specified work including relevant works;
(c)the imposition of reasonable requirements for the protection or alteration of apparatus; and
(d)the undertaking by Exolum of its obligations under this protective provision including the review and assessment of plans and works details.
which may reasonably be required in consequence of the execution of any such works as are required under this protective provision.
(2) The undertaker shall pay Exolum’s reasonable direct costs incurred in the management and handling of any expenses paid under this protective provision.
(3) There will be no deduction from any sum payable under this protective provision as a result of—
(a)the placing of apparatus of a better type, greater capacity or of greater dimensions, or at a greater depth than the existing apparatus; or
(b)the placing of apparatus in substitution of the existing apparatus that may defer the time for renewal of the existing apparatus in the ordinary course.
(4) Upon the submission of an invoice detailing the proper and reasonable costs and expenses incurred by Exolum, the undertaker shall pay Exolum within 30 days from the date on which the invoice is received.
29.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to Exolum the reasonable costs and expenses incurred by Exolum in, or in connection with—
(a)pay Exolum for all loss, damage, liability, costs and expenses reasonably suffered or incurred by Exolum for which Exolum is legally liable as a result of legally sustainable claims brought against Exolum by any third party solely arising out of the carrying out of any works associated with the authorised development;
(b)pay the cost reasonably incurred by Exolum in making good any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) arising from or caused by the carrying out of any works associated with the authorised development; and
(c)pay the cost reasonably incurred by Exolum in stopping, suspending and restoring the supply through its pipeline and make reasonable compensation to Exolum for any other expenses, losses, damages, penalty or costs incurred by Exolum by reason or in consequence of any such damage or interruption provided that the same arises in consequence of the carrying out of any works associated with the authorised development.
(2) Irrespective of anything to the contrary elsewhere in this protective provision—
(a)the undertaker and Exolum must at all times take reasonable steps to prevent and mitigate any loss, damage, liability, claim, cost or expense (whether indemnified or not) which either suffers as a result of the other’s negligence or breach of this protective provision; and
(b)neither the undertaker nor Exolum are liable for any loss, damage, liability, claim, cost or expense suffered or incurred by the other to the extent that the same are incurred as a result of or in connection with the sole, partial or complete breach of this protective provision or negligence arising out of an act, omission, default or works of the other, its officers, servants, contractors or agents.
(3) Exolum must give to the undertaker reasonable notice of any claim or demand to which this paragraph 30 applies. The undertaker may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise therefrom. Exolum must not compromise or settle any such claim or make any admission which might be prejudicial to the claim. Exolum must, at the request of the undertaker, afford all reasonable assistance for the purpose of contesting any such claim or action, and is entitled to be repaid all reasonable expenses incurred in so doing.
(4) The requirement to give reasonable notice of any claim or demand to the undertaker in sub-paragraph (3) above shall not apply in the event of an emergency or where the safety of the apparatus is at risk, in which case Exolum may take necessary action and notify the undertaker of its costs promptly afterwards.
30.—(1) Where in consequence of the proposed construction of any of the authorised development, Exolum requires the protection or alteration of apparatus under the terms of this protective provision, the undertaker must use its best endeavours to co–ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of Exolum’s undertaking.
(2) Exolum must use reasonable endeavours to cooperate with the undertaker for the purposes outlined in this paragraph 30.
(3) The undertaker and Exolum must act reasonably in respect of any given term of this protective provision and, in particular, (without prejudice to generality) where any consent or expression of satisfaction is required by this protective provision it must not be unreasonably withheld or delayed.
31. Nothing in this protective provision affects the provisions of any enactment or agreement regulating the relations between the undertaker and Exolum in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made provided that the terms of the relevant enactment or agreement are not inconsistent with the provisions of this Order. In the case of any inconsistency, in the context of the authorised development, the provisions of this Order prevail.
32. Any dispute arising between the Undertaker and Exolum under this Part of this Schedule is to be determined by arbitration in accordance with article 35 (arbitration).
33.—(1) The undertaker acknowledges that Exolum provides services to His Majesty’s Government, using its apparatus, which may affect any works to be carried under this Order.
(2) In the following circumstances, Exolum may on written notice to the undertaker immediately suspend all works that necessitate the stopping or suspending of the supply of product through any apparatus under this Order and Exolum shall not be in breach of its obligations to proceed—
(a)circumstances in which, in the determination of the Secretary of State, there subsists a material threat to national security, or a threat or state of hostility or war or other crisis or national emergency (whether or not involving hostility or war); or
(b)circumstances in which a request has been received, and a decision to act upon such request has been taken, by His Majesty’s Government for assistance in relation to the occurrence or anticipated occurrence of a major accident, crisis or natural disaster; or
(c)circumstances in which a request has been received from or on behalf of NATO, the EU, the UN, the International Energy Agency (or any successor agency thereof) or the government of any other state for support or assistance pursuant to the United Kingdom’s international obligations and a decision to act upon such request has been taken by His Majesty’s Government or the Secretary of State; or
(d)any circumstances identified by the COBRA committee of His Majesty’s Government (or any successor committee thereof); or
(e)any situation, including where the United Kingdom is engaged in any planned or unplanned military operations within the United Kingdom or overseas, in connection with which the Secretary of State requires fuel capacity.
(3) The parties agree to act in good faith and in all reasonableness to agree any revisions to any schedule, programme or costs estimate (which shall include costs of demobilising and remobilising any workforce, and any costs to protect Exolum’s apparatus “mid-works”) to account for the suspension.
(4) Exolum shall not be liable for any costs, expenses, losses or liabilities the undertaker incurs as a result of the suspension of any activities under this paragraph or delays caused by it.