SCHEDULE 14PROTECTIVE PROVISIONS

PART 5FOR THE PROTECTION OF RAILWAY INTERESTS

schedule 14 paragraph 60 + 60.—(1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be occasioned to or reasonably incurred by Network Rail—

schedule 14 paragraph 60 1 a + (a)by reason of the construction, maintenance or operation of a specified work or the failure thereof; or

schedule 14 paragraph 60 1 b + (b)by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work;

schedule 14 paragraph 60 1 c + (c)by reason of any act or omission of the undertaker or any person in its employ or of its contractors or others whilst accessing to or egressing from the authorised development;

schedule 14 paragraph 60 1 d + (d)in respect of any damage caused to or additional maintenance required to, railway property or any such interference or obstruction or delay to the operation of the railway as a result of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others;

schedule 14 paragraph 60 1 e + (e)in respect of costs incurred by Network Rail in complying with any railway operational procedures or obtaining any regulatory consents which procedures are required to be followed or consents obtained to facilitate the carrying out or operation of the authorised development;

schedule 14 paragraph 60 1 f + (f)in respect of any losses incurred by Network Rail, as a result of or in connection with a specified work, under any leases, tenancy agreements, easements and/or wayleaves granted by Network Rail on the railway land (to the extent that any are applicable);

and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission: and the fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision shall not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(2) Network Rail must—

schedule 14 paragraph 60 2 a + (a)give the undertaker reasonable written notice of any such claims or demands;

schedule 14 paragraph 60 2 b + (b)not make any settlement or compromise of such a claim or demand without the prior consent of the undertaker; and

schedule 14 paragraph 60 2 c + (c)take such steps as are within its control and are reasonable in the circumstances to mitigate any liabilities relating to such claims or demands.

(3) The sums payable by the undertaker under sub-paragraph (1) shall if relevant include a sum equivalent to the relevant costs.

(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

(5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs shall, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub‑paragraph (4).

(6) In this paragraph—

term the relevant costs + “the relevant costs” means the costs, losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any specified work including but not limited to any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in subparagraph (1); and

term train operator + “train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993.