SCHEDULE 9Protective provisions

PART 13For the protection of Air Products (BR) Limited

Carrying out work and monitoring for damage to pipelines

190.—(1) When carrying out the relevant work the undertaker must monitor the relevant affected assets to establish whether damage has occurred.

(2) Where any damage occurs to any affected asset as a result of the relevant work, the undertaker must immediately cease all work in the vicinity of the damage and must notify Air Products to enable repairs to be carried out to the reasonable satisfaction of Air Products.

(3) If damage has occurred to an affected asset as a result of the relevant work the undertaker will, at the request and election of Air Products—

(a)afford Air Products all reasonable facilities to enable it to fully and properly repair and test the affected asset and pay to Air Products costs incurred in doing so including the costs of testing the effectiveness of the repairs and cathodic protection and any further works or testing shown by that testing to be reasonably necessary; or

(b)fully and properly repair the affected asset as soon as reasonably practicable, in which case the repairs must be properly tested by the undertaker and be shown to the reasonable satisfaction of Air Products to have effectively repaired the affected asset before any backfilling takes place.

(4) If in the course of carrying out repairs under paragraph ‎190‎(3)(a) or ‎190‎(3)(b) apparatus of a better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus; or apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which existing apparatus was, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, or, in default of agreement is not determined by arbitration to be necessary, then, if it involves cost in the execution of the repairs exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which would be payable to Air Products under paragraph ‎190‎(3)(a), or incurred by the undertaker under paragraph ‎190‎(3)(b), by virtue of paragraph ‎(3) will be reduced by the amount of that excess save where it is not possible or appropriate in the circumstances (including due to statutory or regulatory changes) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.

(5) Where testing has taken place under paragraph ‎190‎(3)(b), the undertaker must (except where Air Products agree otherwise in writing) provide it with a copy of the results of such testing prior to any backfilling.

(6) Following the completion of a relevant work if damage is found to have occurred to an affected asset as a result of the relevant work, sub-paragraphs ‎(2) to (4) apply to that damage.

(7) In relation to the approved assessment and monitoring work to be undertaken both prior to the construction of the relevant work and during the operation of the authorised development to ascertain any change or damage to any pipeline cathodic protection system, the undertaker must undertake any necessary remedial work.

(8) In the event that the undertaker does not carry out necessary remedial work in a timely manner then Air Products is entitled, but not obliged, to undertake the necessary remedial work and recover the cost of doing so from the undertaker.