Sefton developers pack section 38 agreement

Sefton CouncilDevelopers Pack

Section 38Agreement

Section 38 Agreement

Sefton Developer Pack Tabbed Dividers_Layout 1 30/07/2013 08:33 Page 7

Section 38AgreementsDeveloperGuidance

Contact Details:

Section 38 Enquiries Highways Development Control Team,Sefton Council,Investment Programmes and Infrastructure Division,Department of Built Environment,Magdalen House,30 Trinity Road, Bootle,Merseyside, L20 3NJ

Telephone: 0845 1400 845 (ask for Highways Development Control)Email:[email protected]

Sefton Council Developers PackJune 2013 - Revision 01

Section 4 - Section 38 Agreements_Layout 1 30/07/2013 08:25 Page 1

Section 38 Agreements - Developer GuidanceContents

CONTENTS

Introduction

Chapter 1 – Legislation

Chapter 2 – FinanceSection 2.1 – The Bond or SuretySection 2.2 – Payments to Sefton CouncilSection 2.3 – Commuted SumsSection 2.4 – Public Liability Insurance

Chapter 3 – Design and Construction of Highway WorksSection 3.1 – Documents to be Provided by the DeveloperSection 3.2 – Plan Details RequiredSection 3.3 – Design – Highway WorksSection 3.4 – Design – Sustainable DrainageSection 3.5 – Design – Street LightingSection 3.6 – Design and Installation – Urban Traffic Control (UTC) EquipmentSection 3.7 – Design – Highway StructuresSection 3.8 – Contractor ApprovalSection 3.9 – Notification of Start of WorksSection 3.10 – Site InspectionsSection 3.11 – Completing the Highway Works

Chapter 4 – Certification of the Highway WorksSection 4.1 – Part 1 CertificateSection 4.2 – Part 2 CertificateSection 4.3 – Maintenance Period ResponsibilitySection 4.4 – Final Certificate

Chapter 5 – Statutory and Non Statutory Obligations

Chapter 6 – Health and Safety

Chapter 7 – Road Safety AuditSection 7.1 – IntroductionSection 7.2 – Road Safety Audit Stages

Chapter 8 – Adoption ProceduresSection 8.1 – Documents Provided to the Developer by Sefton Council

Chapter 9 – Notice of Works


Section 38 Agreements - Developer GuidanceIntroduction

Introduction

Section 38 of the Highways Act 1980 enables Sefton Council to take over and maintain at the publicexpense (adopt) roads, footpaths, footways, cycle lanes, cycle tracks and other areas constructedby a third party through a legal agreement.

The purpose of this document is to guide developers through the process of establishing a Section38 Highways Act 1980 (s38) agreement to ensure that the highway works are delivered to thesatisfaction of all parties following planning consent being granted by Sefton Council’s PlanningDepartment for the development concerned. This guide outlines what developers and Sefton Councilcan expect from each other.

Sefton Council’s Highways Development Control Team is keen to support developers and assist inthe delivery of s38 agreements.

Sefton Council’s Highways Development Control Team is also committed to working closely withdevelopers to achieve : -

• The highest quality development possible• The efficient and effective delivery of projects for the benefit of all parties• The delivery of highway works constructed to adoptable standards• The minimum disruption to the existing highway network during construction• Delivery in accordance with relevant legislation• The consistent use of acceptable materials on the publicly maintained highway• Safety for all personnel working within the site and also the general public, at all times • A development that is not a financial burden or maintenance liability to Sefton Council

Applications to enter into a s38 agreement should be made to Sefton Council as soon as practicallypossible. Early discussion will assist in the resolution of certain issues and so aid the s38 processand sequence of development.

It may be necessary in some instances to alter or improve the existing public highway. In such cases,it is possible for the developer to enter into a combined s38/s278 Highways Act 1980 agreement.



Chapter 1Legislation



Section 38 Agreements - Developer GuidanceChapter 1 - Legislation

1. Legislation

Following planning permission being granted, the development may be divided into a number ofphases and an agreement completed or part thereof, for each phase before construction workscommence.

Under Section 38 of the Highways Act 1980, the Highway Authority may enter into an agreementwith a developer of land on either side or both sides of a street. The Authority can agree to adoptany road or way as a highway maintainable at public expense when all the street works have beencarried out to their satisfaction as set out in Section 38 (6) of the Act : -

“An agreement under this section may contain such provisions as to the dedication as a highway ofany road or way to which the agreement relates, the bearing of the expenses of the construction,maintenance or improvement of any highway, road, bridge or viaduct to which the agreement relatesand other related matters as the authority making the agreement think fit.”

An example of a model s38 agreement can be found in the Section 38 Annexes document as AnnexA. You will note that that this is an example of an agreement and Sefton Council reserves the rightto vary the terms where appropriate. The agreement will set out : -

• Details of the proposed highways• Developer’s liability• Arrangements for connections of existing services• Sefton Council’s access requirements• Scope of Part 1 and Part 2 works, inspection procedures and certification• Developer obligation during the maintenance period• Grants of rights for drainage• Timing of adoption• Sefton Council’s fees and charges• Bond or surety obligation

Proof of land ownership is required to ensure that all parties with freehold or leasehold interests inthe land enter into a s38 agreement and consent to its terms.

Sefton Council may seek payment to pay for the future maintenance of the new or revised highwayfrom the developer, acquiring monies through ‘commuted sums’ where necessary. Commuted sumsallow greater flexibility to adopt non-standard materials and other items when developmentincreases Sefton Council’s future maintenance liability.

The developer must demonstrate a right to discharge surface water from the highway, primarily byway of a Sustainable Drainage System (SuDS). In cases where this is not appropriate, surface waterfrom the highway should be discharged by way of an existing or proposed public sewer. Where it isproposed to drain the new highway into an existing sewer, (subject to a Section 104 Agreementunder the Water Industry Act 1991), the agreement must be completed with United Utilities prior tothe completion of the s38 agreement.

Before the s38 agreement can be signed, the developer must provide written proof to SeftonCouncil’s Highways Development Control Team that the Health and Safety Executive has beeninformed that they are the ‘client’ for the highway works, in accordance with the Construction Designand Management (CDM) Regulations 2007.

The highway layout agreed when planning permission is granted will be regarded as a generalarrangement and may be subject to minor change as a consequence of subsequent consultation,detailed design and the required Sefton Council approval.



Chapter 2Finance



Section 38 Agreements - Developer GuidanceChapter 2 - Finance

2. Finance

2.1 The Bond or Surety

The developer is required to deposit a bond or surety with Sefton Council to cover the cost of thehighway works, fees and charges and commuted sums. This bond ensures that Sefton Council doesnot incur any costs if the highway works are stalled, changed or aborted by the developer.

If the developer fails to perform or observe any of the agreement’s conditions, Sefton Council canuse the bond to complete the highway works, recover fees and charges, and retain the commutedsums to cover future maintenance costs.

The Sefton Council fees and charges element of the bond must be deposited with Sefton Councilprior to the s38 agreement being signed. The cost of the highway works and any commuted sumsmust be deposited with Sefton Council prior to any works commencing on site.

The bond will be released back to the developer incrementally in accordance with Table 2.1, exceptwhere a commuted sum is due from the developer as part of the s38 agreement. If the commutedsum is outstanding, the bond will not be reduced to a value less than the commuted sum. Pleasenote that the value of adoptable works does not include fees, charges and commuted sums.

2.2 Payments to Sefton Council

Sefton Council will charge for administration, design checks and site inspections for the work involvedin the following : -

• Preparing, executing and managing the s38 agreement• Design checks• Inspecting the works on site• SuDS and non-standard surface water drainage systems• Street lighting

This charge is currently 10% of the estimated adoptable highway works costs, based upon SeftonCouncil’s current term maintenance contracts. Developers should note that the charge does notinclude the costs associated with checking and approving the following : -

• Highway structures• Geotechnical approval or inspection• Conducting surveys for inventory information• Preparing and processing Traffic Regulation Orders (TRO’s)• Fees and charges associated with traffic signal equipment• Carrying out Road Safety Audits (RSA’s)

Additional fees for the services above will be based on ‘actual costs’ incurred on a time related basis.

Table 2.1

Stage Bond Value Reduced by Bond Value Remaining

Part 1 Certificate 50% 50%

Part 2 Certificate 30% 20%

Final Certificate 20% 0%



A fixed fee is required by Sefton Council, payable before completion of the s38 agreement to coverthe legal costs and administration for dealing with the agreement, plus disbursements. This fee isreviewed annually.

Before carrying out any technical assessment, Sefton Council will require an advance payment (thelevel of charge is reviewed annually) to cover the initial costs in respect of the following : -

• Sefton Council’s Highways Development Control Team project assessment discussions with thedeveloper

• Sefton Council’s initial comments on the developer’s proposals• Approval or technical assessment of design and construction details, including confirmation of

street lighting requirements• Sefton Council’s fees, charges and commuted sums• Preparation of the s38 Highways Act 1980 agreement• Site inspections

The advance payment will be deducted from the overall supervision/administration fee of 10% of thetotal value of the adoptable works upon completion of the agreement.

The works detailed within an agreement will be staged and following completion of each stage, thedeveloper will receive the relevant certificate and there will be a reduction in the value of the suretyobligation.

It is expected that the works identified in Part 1 of the agreement shall be completed within 6 months andwithin a further 18 months those within Part 2. If more than 2 years elapses after the issue of the Part 1Certificate, without the Part 2 Certificate being issued, Sefton Council will charge the developer a furtherfixed fee (reviewed annually) or 1% of the original calculated bond/surety figure – whichever the greater.

If more than 3 years elapses after the issue of the Part 1 Certificate, without the Part 2 Certificatebeing issued, Sefton Council will charge the developer a further additional fixed fee (a minimum of3% of the original calculated bond/surety figure).

If the matter is still not resolved Sefton Council will consider calling in the bond.

2.3 Commuted Sums

Commuted sums are necessary when development increases Sefton Council‘s future maintenanceliability. Typical circumstances where this may occur include : -

• Maintenance costs for construction not required for the safe and satisfactory functioning of thehighway (including alterations to existing highway only required to serve the development) withno general benefits

• Maintenance costs for additional features, such as highway structures, additional street lighting,traffic signal installations, non-essential street furniture/fencing, public transport infrastructureand landscaping

• Additional maintenance costs for permitted alternative materials and features for example,bespoke street furniture exceeding standard specification

• Provision of Sustainable Drainage Systems (SuDS) such as flow-attenuation devices, swales andstorage areas

Developers should discuss their requirements with Sefton Council’s Highways Development ControlTeam ideally, during pre-planning application discussions.

All commuted sums within the agreement will be payable upon issue of the Part 2 Certificate.

For more information regarding commuted sums, please contact Sefton Council’s HighwaysDevelopment Control Team.



2.4 Public Liability Insurance

The developer must indemnify Sefton Council against any claims by third parties arising from anywork included within the s38 agreement.

Written evidence must be provided that the highway works contractor (or sub-contractor) has aminimum of £5 million of public liability insurance limits, with no limit on the number of claims.



Chapter 3Design andConstruction of s38 Works



Section 38 Agreements - Developer GuidanceChapter 3 - Design and Construction of s38 Works

3. Design and Construction of s38 Works

Part 1 – Design

3.1 Documents to be Provided by the Developer

To progress a s38 agreement, the developer is required to complete and sign a ‘Section 38Application Form for the Adoption of Highways and Street Lighting’, enclose a cheque for the advancepayment to cover initial costs and return it to Sefton Council’s Highways Development Control Team.

The following must be included within the s38 application in an electronic and a hard copy format : -

• Site plans (appropriate scale) – 2 copies• Coloured adoption plans (showing s278 & s38 works) – 4 copies• Drainage layout plans (in colour identifying foul water in brown and highway surface water in

green) – 4 copies• Long sections and cross sections – 4 copies• Construction details – 4 copies• Title deeds plan from Land Registry• Planning approval (Decision Notice) – 1 copy• Sustainable Drainage Systems – drainage calculations for the periods of 1 year, 30 years and 100

years

The following information will also need to be supplied as soon as they are available in order tocomplete the Section 38 adoption process : -

• Ground reports/SI/CBR test results• Bank/surety details• Details of any statutory undertakers’ service protection or diversion works that will be required• Evidence of designer’s and contractor’s (or sub-contractor’s) public liability insurance (must be a

minimum of £5m)• Road Safety Audit stages 1 & 2 report and designer’s response may also be required

The developer should understand that the failure to supply any of the above information could resultin delays to the s38 adoption process.

3.2 Plan Details Required

The following details should be included on the site plans : -

• The layout of any proposed dwellings with plot numbers and driveways• Road names and house numbers (if available)• Details of sewers and surface water drains (private and highway)• Gullies• Landscaping details• A typical cross section showing the construction to be used• Signing and road marking details• Retaining wall details and other highway structures• Carriageway and other associated structures• Junction visibility and forward visibility splays• Horizontal and vertical alignment• Street lighting



The coloured adoption plans should be delineated as follows:

• Extent of developer’s ownership - Red Line• Carriageways, footways and footpaths-s38 - Pink• Road gullies, connections, highway drains & manholes - Blue dashed line • Associated s278 works - Blue• Soft landscaping - Green• Boundary of site - Purple• Hard landscaping - Yellow

3.3 Design – Highway Works

The design of highway works must be in accordance with Sefton Council’s developers’ pack. Furtheradvice and support in respect to all these issues can be obtained from Sefton Council’s HighwaysDevelopment Control Team.

A Road Safety Audit (RSA) may be required, subject to the scope and scale of the s38 works. If theRSA process is required then the developer must procure a RSA Stage 1 report prior to the start ofthe detailed design process.

The developer may commission an external Road Safety Auditor or procure the services of SeftonCouncil to carry out the RSA. Once the developer has procured the Road Safety Auditor, they shouldretain the same auditor for all other audit stages in respect to the development.

Sefton Council’s Highways Development Control Team will carefully consider the recommendationswithin the RSA report and determine the need for further consultation and information required fromthe designer.

On completion of the detailed design, RSA Stage 2 shall be undertaken. Once the RSA Stage 2outcomes have been incorporated and the design completed, the developer’s designer shall providesufficient information to allow Sefton Council to carry out a design check.

Once all the issues raised by the design check have been addressed, Sefton Council will write to thedeveloper’s designer to confirm that the design is acceptable.

Developers should note that if the design of their scheme proposes the use of alternative, enhancedor bespoke materials, then a commuted sum will be payable to cover the cost of future maintenanceas identified in chapter 2 of this guidance.

3.4 Design – Sustainable Drainage

All developments are required to make adequate provision for draining surface water from theadoptable highway. Sustainable Drainage Systems (SuDS) should be used except in cases where itis confirmed that such a system is not a practical or technically feasible option. Developers shouldrefer to this pack for more advice.

The design of SuDS for the surface drainage of the new highway must be submitted to Sefton Councilfor technical approval.

Sefton Council as a Unitary Authority will be the SuDS Approving Body (SAB) and will both receiveapplications and issue consents. The Government has not yet confirmed the implementation datefor this new system. For further details regarding SuDS, including updates on the Government’sproposals, the developer should contact Sefton Council’s Highways Development Control Team.



Timescales for approval will depend upon the complexity of the structure and early consultation withSefton Council’s Highways Development Control Team is strongly advised.

An agreed commuted sum for future maintenance of SuDS will be payable by the developer to SeftonCouncil.

3.5 Design – Street Lighting

Should any development include proposals for street lighting works, the developer will be requiredto submit the lighting design to Sefton Council’s Highways Development Control Team for technicalapproval before any lighting installation may commence.

Design and installation of street lighting works are to conform to the latest British and Europeanstandards including Sefton Council’s latest lighting specification.

The developer will ensure that all lighting columns for new developments are to be of an aluminiumor stainless steel Council type and the luminaires are to be of an approved LED type.

Should Independent Distribution Network Operators (IDNO) be considered for any development, it isessential that early contact be made with Sefton Council’s Highways Development Control Team todiscuss future maintenance issues.

Sefton Council, if required, are able to offer the services of street lighting designs and siteinstallations.

During construction, Sefton Council will require access for the inspection of the works.

Upon completion of the installation of the street lighting works and associated equipment, SeftonCouncil shall carry out a final inspection for approval and subject to this, will then arrange for thecommissioning of the street lighting apparatus.

Costs associated with design checks and approvals, shall be paid by the developer to Sefton Council.Other costs associated with the final inspection and commissioning shall be paid by the developerto Sefton Council before final adoption.

A commuted sum to cover the future maintenance of ornamental, bespoke or non-standard lightingcolumns may be payable by the developer to Sefton Council.

3.6 Design and Installation – Urban Traffic Control (UTC) Equipment

Should any development include proposals for traffic signal works, the developer will be required tosubmit a Traffic Impact Assessment (TIA) showing the effect that the signals will have upon theexisting highway network.

The TIA will be checked by Sefton Council’s Highways Development Control Team and upon approval,the design of the signal installation may commence.

Design and installation of signal works and associated equipment are to conform to the appropriatestandards, including Sefton Council’s latest Design Specification (Appendix 12/5) for Traffic SignalWorks.

Sefton Council, if required, are able to offer the services of traffic signal design and installation.



Should the developer choose his own traffic signal design team, the traffic signal design must besubmitted to Sefton Council’s Highways Development Control Team for technical approval beforecommencing on site.During construction, Sefton Council will require access for the inspection of the works.

Upon completion of the installation of the traffic signals and associated signal equipment, SeftonCouncil shall carry out a final inspection and subject to approval, will then commission the trafficsignal works.

Costs associated with design checks, approvals, inspections and commissioning shall be paid by thedeveloper to Sefton Council at the time of the execution of the legal agreement.

A commuted sum to cover future maintenance and energy costs shall be payable by the developerto Sefton Council at the time of execution of the legal agreement.

3.7 Design – Highway Structures

Should any development include proposals for structures associated with the highway and includea proposal for Sefton Council to adopt these structures, then technical approval from Sefton Councilis required. Sefton Council will be the Technical Approving Authority (TAA) to oversee the complianceof all designs and construction details with the relevant standards and specification.

Technical approval procedures set out in the Department for Transport’s BD 2/05 Technical Approvalof Highway Structures (Design Manual for Roads and Bridges) or subsequent amendments must befollowed for the design and construction of all new or modified structures.

Technical approval shall apply if the developer wishes Sefton Council to adopt a structure underSections 38 or 278 of the Highways Act 1980 and covers the construction, assessment,refurbishment or demolition of any structure within the adopted highway boundary and shall alsoapply to any proposals outside the adopted boundary that affect any part of a highway or highwaystructure.

An agreed commuted sum for future maintenance of such structures shall be paid by the developerto Sefton Council.

Technical approval procedures within BD 2/05 require the developer to submit an ‘Approval inPrinciple’ (AIP) to Sefton Council for endorsement before proceeding with any design or assessment.The AIP shall be valid for 3 years after the date of agreement by Sefton Council.

Sefton Council will agree with the developer the Category (0, I, II or III) of the structure in accordancewith BD 2/05.

Timescales for approval by Sefton Council will depend upon the complexity of the structure and earlyconsultation with Sefton Council’s Highways Development Control Team is advised.

Access for inspection, future maintenance or demolition of the structure must be agreed with SeftonCouncil prior to submission of any planning application.



Part 2 – Construction

3.8 Contractor Approval

All highway works must be carried out by a contractor (including any sub-contractor) who has therelevant experience and capabilities and is ‘Streetworks’ accredited (New Roads and StreetworksAct 1991).

Where Sefton Council has no previous experience of a contractor’s work, the developer will berequired to provide Sefton Council with satisfactory references and examples of similar worksuccessfully completed to the satisfaction of another Highway Authority.

Sefton Council recommends that the developer only considers employing experienced andcompetent contractors to avoid abortive works, costs and subsequent delays, and also that thecontractors are included within ‘Construction Line’, the UK's largest register for pre-qualifiedcontractors and consultants.

3.9 Notification of Start of Works

A minimum of 2 weeks notice, in writing to Sefton Council is required, of a developer’s intention tocommence construction works. Where the developer is connecting into the existing public highway,a longer notice period of up to 3 months will be required. The s38 agreement will state that theconstruction of any work on site must not start until the following conditions have been met : -

• All statutory procedures completed• All non-statutory consultation processes completed• Technical approval given• Technical approval for any structure(s) within/abutting the highway• All design checks satisfactorily completed• Road Safety Audits (up to Stage 2) satisfactorily completed (if required)• All necessary fees/payments made to Sefton Council• Section 38 agreement signed and executed• Confirmation that adequate bond provided• Developer agreeing to pay commuted sum/s within the agreement and payments made upon

issue of the Part 2 Certificate• Written confirmation that the developer has contacted the Health and Safety Executive• Sefton Council provided with approved drawings for site inspections• Sefton Council has approved the highways works contractor• SuDS approval

If works are commenced prior to the above conditions being met, then this will be at the sole risk ofthe developer.

3.10 Site Inspections

The developer is responsible for the day-to-day supervision of the construction of the highwayworks.

Sefton Council will inspect the highway works to check that they are being constructed in accordancewith the approved drawings and to the appropriate specification. Sufficient advance warning mustbe given to Sefton Council for any item of the adoptable highway work being constructed on siteand requiring approval. Sefton Council’s officers must be given access to the highway works at alltimes.



It is the responsibility of the developer’s contractor to provide, at their own expense, detailedlaboratory reports or material analysis as requested by Sefton Council. The developer’s contractormust be able to prove the technical suitability of any proposed construction material.

3.11 Completing the Highway Works

It is the responsibility of the developer to complete any work included within the s38/s278 agreementto the satisfaction of Sefton Council.

The agreement will include a time limit for the completion of all highway works to be adopted. Thedeveloper must ensure that adoption takes place within a reasonable period of time in order tominimise any potential risks or inconvenience to residents.

In order to safeguard the interests of householders and highway users, Sefton Council expects thedeveloper to ensure that the highway works are completed, either : -

• Within 6 months of all building fronting, or served by the highway works being completed• Within 3 years after signing the legal agreement – whichever is sooner or,• At the agreed point within the s38 Highways Act 1980 legal agreement

When the developer does not complete the highway works within the specified timescales, SeftonCouncil will charge extra fees to cover additional inspection/supervision costs.

If the developer does not complete the highway works in accordance with the s38 agreement, SeftonCouncil reserves the right to use the bond to complete the works and invoke the penalty clauses asidentified in section 3.



Chapter 4Certification of theHighway Works



Section 38 Agreements - Developer GuidanceChapter 4 - Certification of the Highway Works

4. Certification of the Highway Works

4.1 Part 1 Certificate

The works detailed in Part 1 of the Schedule of the Section 38 Agreement will include : -

• All highway drainage• All other drainage contained within the highway• All kerb foundations and where appropriate kerb, including lowering at vehicle crossings,

pedestrian and pram-ramps• Carriageway sub-base, road base and any supporting structures • Carriageway base course surfacing, where appropriate• Demarcation of sight lines and clearance of visibility splays• Street nameplates• Traffic calming measures where applicable and entrance ramps (temporary measures to be put

in place at the location of permanent features)• Street lighting and illuminated traffic signs in position and operative• Traffic signalling as agreed with Sefton Council in writing • Temporary road markings if applicable

Following satisfactory completion of the works detailed in Part 1 of the Schedule of the Section 38Agreement and the street lighting installation has been satisfactorily checked, Sefton Council willissue the developer with a Part 1 Certificate.

4.2 Part 2 Certificate

The works detailed in Part 2 of the Schedule of the Section 38 Agreement will include : -

• All outstanding kerbing not completed in Part 1• Pedestrian footways• Carriageway wearing course and carriageway base course• Visibility splays and verges• All street furniture not completed in Part 1• Road markings• All other works described in the specification and shown on the drawings

* Please note that Sefton Council will not adopt service verges/strips in soft landscaping

Following satisfactory completion of the works detailed in Part 2 of the Schedule of the Section 38Agreement, Sefton Council will hold a joint inspection with the developer’s representative in order toprovide a definitive list, in writing, of any remedial works that are required.

Sefton Council require a Road Safety Audit Stage 3 to be commissioned by the developer at this stage,subject to the scope and scale of the s38 works.

Within 7 days of the joint inspection, Sefton Council will send the developer a list of all the necessaryremedial works that are required to be completed.

Where the works are also the subject of a Section 104 Agreement pursuant to the Water Industry Act1991 and the sewer is situated within the highway or is an integral part of the highway drainagesystem, the Part 2 Certificate will only be issued after a ‘Final Certificate’ has been issued by UnitedUtilities and the sewers have been vested.

After the satisfactory completion of all identified remedial works, Sefton Council will issue a Part 2Certificate.


Section 38 Agreements - Developer GuidanceChapter 4 - Certification of the Highway Works

If the developer’s contractor has constructed the highway works, the 12 months maintenance period(24 months for developments in the north of the Borough) commences on issue of the Part 2Certificate.

4.3 Maintenance Period Responsibility

When the developer’s contractor has constructed the highway works and prior to the issue of thePart 2 Certificate, the following applies: -

• The developer is responsible for the maintenance of all work included within the agreement,including highway verges and must carry out road sweeping and gully emptying to SeftonCouncil’s published current standards and maintenance regimes until the final certificate is signed

• The developer is responsible for the removal of abandoned vehicles, rubbish or otherunauthorised materials or obstructions as may be necessary, in order to facilitate the use ofhighway areas by residents and the public

• The developer is responsible for the routine maintenance of the street lights and illuminated trafficsigns and will pay for all associated energy charges, during the maintenance period

• The developer must ensure that the highway areas are maintained to a high standard during themaintenance period and are completely safe to use by all pedestrians

• Site inspections should be carried out during wet weather conditions to check that there are noproblems with site drainage

• Where any works are undertaken, the appropriate notice is served upon the Highway Authority

4.4 Final Certificate

The developer must arrange a joint inspection with Sefton Council, in order to agree a definitive listof any maintenance repairs deemed necessary, prior to the end of the maintenance period.

Within 7 days of the joint inspection, Sefton Council will send the developer a list, in writing of allnecessary repairs to be completed before the issue of the final certificate.

The final certificate will only be issued when : -

• All s38 works, including remedial works, are satisfactorily completed• All payments under the agreement, including any additional inspections and administration fees,

have been paid to Sefton Council• The developer has supplied Sefton Council with the health and safety file, as stipulated in

Construction Design and Management (CDM) Regulations 2007• The developer has supplied Sefton Council with 2 sets of ‘as-built’ drawings, including highway

drainage and any drainage situated outside of the highway limits• A RSA Stage 3 has been completed and approved by Sefton Council• The developer has paid any necessary commuted sums to Sefton Council

Following the satisfactory completion of all the above requirements, Sefton Council will issue the finalcertificate and the estate roads included within the s38 agreement will become highwaysmaintainable at the public expense.



Chapter 5Statutory and Non StatutoryObligations



Section 38 Agreements - Developer GuidanceChapter 5 - Statutory and Non Statutory Obligations

5. Statutory and Non Statutory Obligations

Your development may require other approvals, such as statutory and non statutory requirementsincluding : -

• Stopping-Up Orders• Traffic Regulation Orders (TRO’s)• Licences• Gating Orders• General consultation• Street naming and numbering

When a development requires any of the above, the developer shall pay all associated costs, whereapplicable. For further information with regards to the above mentioned procedures, earlydiscussion with Sefton Council’s Highways Development Control Team is advised.



Chapter 6Health and Safety



Section 38 Agreements - Developer GuidanceChapter 6 - Health and Safety

6. Health and Safety

Before the s38/s278 agreement can be signed, the developer must provide written proof to SeftonCouncil’s Highways Development Control Team that they have informed the Health and SafetyExecutive that they are the client for the highway works, in accordance with Construction Designand Management (CDM) Regulations (2007).

As client for the works in accordance with the CDM Regulations, the developer must : -

• Appoint a CDM co-ordinator• Verify the competence of the parties involved in the project• Ensure that sufficient resources are in place to undertake the highway works

The developer must ensure compliance with the CDM Regulations and indemnify Sefton Councilagainst claims, liabilities and actions arising therefrom.

The developer must provide Sefton Council’s Highways Development Control Team with an electroniccopy of the health and safety file on completion of the highway works. This must comply with therequirements of the CDM Regulations.

Consideration cannot be given to the release of the remaining bond on completion of thedevelopment until the health and safety file has been provided.



Chapter 7Road Safety Audit



Section 38 Agreements - Developer GuidanceChapter 7 - Road Safety Audit

7. Road Safety Audit

7.1 Introduction

A road safety audit (RSA) is the staged evaluation of changes to the highway during the design,construction and operation. It looks to identify potential safety hazards that may affect any roaduser. The stages include : -

• Stages F, 1 and 2 evaluate the design• Stage 3 is carried out as soon as possible after measures become operational• Stage 4 is carried out approximately 12 to 36 months after the measures were introduced

A RSA considers the road safety implications of all the measures or proposed works and their impacton the highway network. Particular attention is paid to the impacts on vulnerable groups, for examplethe very young, elderly, people with a disability and more generally, pedestrians and cyclists.

A RSA may be applicable to a particular junction or section of the highway network. However, it isimportant that the road safety implications of the measures being proposed are considered, alongwith any impact on adjacent or other parts of the network.

A RSA does not consider non-road safety related issues and is not a technical check. However, inorder to clearly explain a safety problem or make a recommendation to resolve a problem, the auditmay make reference to a design standard.

A RSA is not to be used : -

• as a means of selecting between various design options under consideration• to query why other measures are not being proposed• to comment on the effectiveness of the proposals where there are no adverse safety implications

7.2 Road Safety Audit Stages

The stages that are covered by RSA are summarised below : -

• A Feasibility, Stage F RSA, may be required during the early concept of a design, especially if anumber of road options or development accesses are being considered, there may be arequirement for a Stage F Audit to be completed. At this stage it is expected that consistency withadjacent networks and designations of the functions for the various elements of the roadhierarchy are established. Should this stage be required, Sefton Council’s Highways DevelopmentControl Team will require a copy of the Feasibility Audit report prior to the commencement of thepreliminary design stage.

• A Preliminary Design, Stage 1 RSA, is to be commissioned as soon as possible after the completionof the preliminary design stage. It is expected that submissions for this audit will indicate junctiontypes, highway alignments, sightlines and facilities for other road users such as pedestrians,cyclists and equestrians. The completion of a Stage 1 Audit should ensure that any major changesto the design will be limited. A copy of the Stage 1 report is to be submitted to the Sefton Council’sHighways Development Control Team for comments prior to the commencement of the detaileddesign stage. In certain cases, it may be agreed that a Stage 1 Audit will be combined and carriedout with a Stage 2 Audit.

• A Detailed Design, Stage 2 RSA, is to be commissioned upon the substantial completion (ideallybefore preparation of contract documentation) of the detailed design. By now, the scheme couldbe sufficiently detailed to allow construction and details such as signalling, kerbing, drainage,lighting, landscaping and alignments will be shown on the plans. There would be little scope atthis stage for substantial changes in the design. The Stage 2 report is to be submitted to SeftonCouncil’s Highways Development Control Team after which the detailed design will be completedin line with any recommendations.



• A Post Construction Stage, Stage 3 RSA, is to be commissioned by the developer either just beforeor just after substantial completion of the scheme. The purpose of this stage is to view the schemeearly in its life and should there be recommended changes in the audit, they can be implementedearly on in its operation.

• A Monitoring Stage, Stage 4 RSA, may be carried out to review the operation of the design usually12 to 36 months after the completion of the scheme. This will allow suitable time to elapse beforethe gathering of accident statistics, if any, which will then be used to evaluate the operation andperformance of the scheme.



Chapter 8AdoptionProcedures



Section 38 Agreements - Developer GuidanceChapter 8 - Adoption Procedures

8. Adoption Procedures

8.1 Documents provided to the developer by Sefton Council

A s38 application form can be supplied by Sefton Council. This must be completed by the developerand returned to Sefton Council’s Highways Development Control Team, together with the requisiteinformation contained within this guidance note.

The form is available in the s38 Annexes document as Annex A or by contacting Sefton Council’sHighways Development Control Team.



Chapter 9Notice of Works



Section 38 Agreements - Developer GuidanceChapter 9 - Notice of Works

9. Notice of Works

As a result of the Traffic Management Act 2004, a noticing system is in place for all works carriedout on the highway.

If s278 highway improvement works are being carried out in conjunction with the s38 works, thenthe developer should note that the s278 works have to be registered by the Highway Authority andthey are subject to advance notice periods.

Consequently, it is crucial that the developer contacts Sefton Council’s Highways Development ControlTeam and completes a ‘Notice of Works’ form to avoid possible delays. A copy of this form is providedin the Section 38 Annexes in this pack.


Section 38Agreements

Annexes

July 2013

Alan LuntDirector of Built Environment

Contact Details:





Section 38 Agreements - AnnexesContents

CONTENTS

Annex A – Section 38 Application Form

Annex B – Model Section 38 Legal Agreement

Annex C – Notice of Works Form



Annexes

Annex ASection 38Application Form



Sefton Council Highways Development Control Team

Magdalen House, 30 Trinity Road, Bootle, L20 3NJ

SECTION 38 APPLICATION FORM FOR THE ADOPTION OF HIGHWAYS AND STREET LIGHTING

Site Location______________________________________________________________ (Address) _________________________________________________________________________ Developers Site Name_________________________________________________________________ Developer_________________________________________________________________ Please complete the section above, sign the form overleaf as indicated, enclose cheque for £2,000 to cover initial costs (deducted from final fees) and return the form to Sefton Council’s Highways Development Control Team at the above address.

Please ensure that all of the below components are included with your application in an electronic and a hard copy format :- ! Site Plans (appropriate scale) – 2 copies ! Coloured Adoption Plans (showing s278 & s38 works) – 4 copies ! Drainage Layout Plans (in colour identifying foul water in brown and highway surface water

in green) – 4 copies ! Long Sections and Cross Sections – 4 copies ! Construction Details – 4 copies ! Title Deeds Plan from Land Registry ! Planning Approval (Decision Notice) – 1 copy ! Sustainable Drainage Systems – drainage calculations for the periods of 1 year, 30 years

and 100 years

The following will also need to be supplied as soon as they are available in order to complete the Section 38 adoption process. ! Ground Reports/SI/CBR test results ! Bank/Surety Details ! Details of any statutory undertakers’ service protection or diversion works that will be

required ! Evidence of Designer’s and Contractor’s (or Sub-contractor’s) Public Liability Insurance

(must be a minimum of £5m) ! A RSA Stage 1 & 2 Report and designer’s response may also be required

www.sefton.gov.uk


The Developer should understand that failure to supply any of the above information could to result in delays in the Section 38 adoption process.

Plan Details

Site Plans

The following details should be included on the Site Plans:

! The layout of any proposed dwellings with plot numbers and driveways ! Road names and house numbers ! Details of sewers and surface water drains (private and highway) ! Gullies ! Landscaping details ! A typical cross section showing the construction to be used ! Signing and road marking details ! Retaining wall details and other highway structures ! Carriageway and other associated structures ! Junction visibility and forward visibility splays ! Horizontal and vertical alignment ! Street lighting Coloured Adoption Plans The coloured adoption plans should be delineated as follows: ! Extent of Developer’s Ownership Red Line ! Carriageways, Footways and Footpaths - S38 Pink ! Road gullies, connections, highway drains & manholes Blue dashed line ! S278 Blue ! Soft landscaping Green ! Boundary of site Purple ! Hard landscaping Yellow

I/We the undersigned, request the consideration of highways and street lighting to the above proposed estate for prospective adoption and undertake that I/we shall, upon demand, reimburse Sefton Council of all costs incurred in so doing.

______________________ ____________________________________ ________________ Position Signature Date



Annexes

Annex BModel Section 38Legal Agreement(subject to agreementwith Sefton Council)



DATED

SEFTON METROPOLITAN BOROUGH COUNCIL

and

?????

and

??????????

DRAFT

AGREEMENT

under Section 38 (and 278) of the Highways Act 1980 and Section 33 of the Local Government (Miscellaneous Provisions) Act 1982 relating to

the construction of roads at ?????????/.

HEAD OF CORPORATE LEGAL SERVICES SEFTON METROPOLITAN BOROUGH COUNCIL

(File Ref: DV????/ - Agreement)


AN AGREEMENT made the day of 20xx BETWEEN SEFTON METROPOLITAN BOROUGH COUNCIL of Magdalen House, Trinity Road, Bootle, L20 3NJ ["the

Council"] of the first part and ????? (Co Regn No ?????) whose registered office is

at ??????? [" the Developer"] of the second and ????? whose registered office is at

????????? ["the Surety"] of the third part.

WHEREAS:-

RECITALS (1) The Council is the Local Highway Authority for highways within the Metropolitan

Borough of Sefton.

[2] The Developer is the registered proprietor with an Absolute Freehold title under

Title No. ???????????of land situated at ?????????/ which is shown for the purpose

of identification only by red edging on the Drawings and annexed hereto which

includes the site of the proposed Road or Roads on the said Drawing and is in

possession of all other land required for the Works hereinafter referred to and is

desirous of dedicating the new roads for highway purposes under s38 (and s278) of

the Highways Act 1980

(3) The Developer has agreed with the Council to make up the Road or Roads so

that the same shall become a highway or highways maintainable at the public

expense when the Works hereinafter referred to for the making up of the Road or

Roads have been executed and maintained which the Council has agreed to do

upon the terms and conditions hereinafter appearing NOW in pursuance of Section 38 (and Section 278) of the Highways Act 1980 and

Section 33 of the Local Government (Miscellaneous Provisions) Act 1982 IT IS HEREBY AGREED AND DECLARED by and between the parties hereto as follows:

1. Interpretation: IN this Agreement where the context so admits:

the “Drawings” mean the Drawing numbered ????????? annexed hereto and

signed by or on behalf of the parties hereto and any amended such Drawing signed

by or on behalf of the Proper Officer


the “estimated cost” is the sum of ???????? (£??????) being the amount which is in

the opinion of the Proper Officer the cost of carrying out the Works within the period

specified in clause 2(2) hereof

the “Final Certificate” means the Certificate to be issued on satisfactory completion

of the Works in accordance with Clause 11 hereof

the “Maintenance Period” means the period specified in Clause 9 hereof

the “Part 1 Certificate” means the certificate to be issued on satisfactory completion

of the Part 1 Works in accordance with Clause 7 hereof

the “Part 1 Works” means the works referred to in Part 1 of the Schedule hereto

the “Part 2 Certificate” means the certificate to be issued on satisfactory completion

of the Part 2 Works in accordance with Clause 9 hereof

the “Part 2 Works” means the works referred to in Part 2 of the Schedule hereto

the “Proper Officer” means the officer of the Council for the time being appointed for

the purposes of this Agreement or of any provision contained herein

the “Road or Roads” means the footway and carriageways of the Road or Roads

hereinbefore referred to including any off-site highway drainage and shown on the

Drawings respectively and includes the street lighting (including illuminated traffic

signs) and all other things ancillary thereto

“Service” and “Services” shall include (but not be limited to) apparatus for the

provision or carriage of gas, electricity, water (whether portable, heated or hydraulic),

drainage water, sewerage, telecommunications, electronic data or air (whether

pressurised, heated or otherwise) the “Specification” means the following:

1. “Department of Transport’s Specification for Highway Works” and The

Stationery Office’s Volume 1 of the Manual of Contract Documents for

Highway Works as modified and extended by the “ Civil Engineering

Specification for the Water Industry” 6th Edition published by the Water

Services Association in October, 1993 for all highway drainage works

2. Sefton Metropolitan Borough Council’s Standard Specification for the

Construction of Residential Streets

3. All applicable requirements of the British Standards Institution’s BSEN 13201

5489 “Road Lighting”

4. The following advice documents will specifically apply when carrying out

works which involve trees or works within close proximity to trees :

“BS 5837 : 2005 – Recommendation for “trees in relation to Construction”

“NJUG – Proximity of Trees to Services”


the “Statutory Undertaker” means a “statutory undertaker” as defined in Section

329(1) of the Highways Act 1980 and British Telecommunications PLC

the “Street Furniture Schedule” means a complete list of all the street furniture

supplied as part of the Works including details of the manufacturer and details of the

maintenance requirements for such street furniture

the “Workshop Manual” means a manual detailing the surface finishes which shall

include a complete list of all types of material which are to be used in carrying out the

Works including details of the manufacturer and details of the maintenance

requirements for such finishes

the “Works” means the works specified in the Schedule hereto for the making up of

the Road or Roads 2. Developer's Liability: (1) THE Developer shall carry out and complete the Works at the Developer's

expense in a good and workmanlike manner and with proper materials in

accordance in all respects with the Specification and the Drawings to the satisfaction

of the Proper Officer

(2) THE Part 1 Works shall be completed within six calendar months from the

date hereof and the Part 2 Works shall be completed within eighteen calendar

months of the date of issue of the Part 1 Certificate or twenty four calendar months

from the date hereof whichever shall be the earlier

(3) Prior to the issuing of the Final Certificate the Developer shall provide the

Director of Built Environment with the CDM Manual and the schedule of materials

(4) Public Procurement:

(a) The Developer shall comply with all relevant Directions on public

procurement as appropriate from time to time issued by the European

Commission and shall provide evidence of such compliance to the Council

as required and indemnify the Council against failure to comply

(b) Display on the site of the Highway Works notices giving details of the

Highway Works the progress of the said Works, proposed completion

date and a telephone number where information concerning the Works

can be obtained


3. Declaration: THE Developer hereby declares and warrants to the Council that he has and will

throughout the duration of this Agreement maintain full right liberty and consent to

carry out such Works as may be necessary to connect the Road or Roads to a

vehicular highway or highways maintainable at the public expense

4. Connections to Existing Services: THE Developer shall before connecting the Road or Roads with any highway or

highways maintainable at the public expense give notice to each person or body

being the owner or operator or person or body responsible for the time being of any

Service or Services laid in upon or under such highway or highways of the proposal

to make such connection as if the connection were a work to be executed for road

purposes and were mentioned in Section 69, 83,84 and 86 of the New Roads and

Street Works Act 1991 and shall comply with the Code of Practice Measures

Necessary Where Apparatus Is Affected By Major Works (Diversionary Works) as

published June 1992 and shall indemnify the Council in respect of the cost of any

works or measures considered necessary by any such person or body in

consequence of the proposal to make such connection

5. Indemnity: THE Developer hereby indemnifies the Council in respect of all actions claims

demands expenses and proceedings arising out of or in connection with or incidental

to the carrying out of the Works other than those arising out of or in consequence of

any act neglect default or liability of the Council 6. Access to the Site: THE Owner and Developer shall during the carrying out of the Works give to the

Proper Officer and any other officer of the Council access to every part of the Works

and sites thereof for the purpose of inspecting the Works and all materials used or

intended to be used therein


6a Traffic Regulation Orders: At the Developers expense and at the discretion of the Council a traffic regulation

order whether temporary experimental or permanent may be deemed necessary at

any time prior to adoption

7. Part 1 Certificate: ON the completion of the Part 1 Works to the satisfaction of the Director of Built

Environment in all respects the Proper Officer shall issue his Part 1 Certificate to the

Developer

7a. Stage 2 and Stage 3 Safety Audits: (1) At the Developers expense and prior to the approval of the detailed design a

Stage 2 Safety Audit carried out by a Safety Auditor approved by the Council in

accordance with the Department of Transport Standard HD 19/03 shall be submitted

to the Director of Built Environment and any recommendations made in the Safety

Audit Report shall be implemented to the satisfaction of the Director of Built

Environment

(2) At the Developers expense and prior to the issue of the Final Certificate a

Stage 3 Safety Audit carried out by a Safety Auditor approved by the Council in

accordance with the Department of Transport Standard HD 19/03 Advice shall be

submitted to the Director of Built Environment and any recommendations made in

the Safety Audit Report shall be submitted to the Director and any recommendations

made in the Safety Report shall be implemented to the satisfaction of the Director of

Built Environment

8. Part 2 Certificate: ON completion of the Part 2 Works to the satisfaction of the Proper Officer in all

respects and if any sewer constructed under the Road or Roads under an agreement

under Section 104 of the Water Industry Act 1991 has been certified as being or

having been on maintenance the Proper Officer shall issue his part 2 Certificate to

the Developer and from the date thereof :

(a) the Maintenance Period of twelve calendar months shall commence to run


(b) the Road or Roads shall become a highway or highways and remain

forever open for use by the public at large

(c) the Developer shall remain the Street Manager for the purposes of s49(4) of the

New Roads and Street Works Act 1991 and any statutory modification or re-

enactment thereof until such time as the Road or Roads shall become a

highway or highways maintainable at the public expense

9. Obligations During the Maintenance Period: DURING the Maintenance Period:

(a) the Developer at his own expense shall maintain the Works including

all grassed and planted areas and carry out such routine maintenance as may

be necessary to facilitate use by vehicles and pedestrians

(b) the Developer at his own expense shall undertake routine maintenance of and

be responsible for payment for energy for all street lights and illuminated

traffic signs until adoption takes places at which time the Council will then be

responsible

10. Final Certificate: PRIOR to the expiration of the Maintenance Period the Developer shall forthwith at

his own expense reinstate and make good any defect or damage which may have

arisen from any cause whatsoever or be discovered during the Maintenance Period

(including any defect in or damage to the road surface water system) of which he

has been notified in writing by the Proper Officer so that the Works comply with the

Specification

AND THEN PROVIDED THAT: (a) the Developer has paid to the Council all amounts due to the Council under this

Agreement and

(b) any necessary reinstatement or other works have been completed to the

satisfaction in all respects of the Proper Officer and

(c) the Developer has delivered to the Proper Officer all necessary drawings

showing the Works as constructed

the Proper Officer shall issue his Final Certificate to the Developer and shall release

the Surety from all liability hereunder


10a Stage 4 Safety Audit: (1) Not before 12 months and not after 13 months from the date of issue of the

Final Certificate the Developer shall instruct an independent safety auditor to

conduct a Stage 4 Safety Audit (if necessary) in accordance with the Department of

Transport Standard HD 19/03 (which is to include a full on-site safety assessment of

the works) AND submit such safety audit to the Director of Built Environment (if

necessary)

11. Grants of Rights of Drainage: BEFORE the issue of the Final Certificate by the Proper Officer the Developer shall

without cost to the Council execute or procure the execution by all necessary parties

of such deeds as are in the opinion of the Council necessary to secure to the Council

full drainage rights in respect of such parts of the surface water drainage system of

the Road or Roads as are situate outside the limits of the Road or Roads (including,

but not limited to, the right to inspect, maintain, repair and improve such parts) and

the Council shall not be liable for the payment of compensation or legal or any other

costs or fees arising on account of the execution of any such deeds

12. Street Lighting: ON the execution of this agreement the Developer shall grant to the Council a right

of access to the service strip to undertake Works necessary to install replace

relocate and maintain any such parts of a street lighting system as may be

considered in the reasonable opinion of the Council necessary PROVIDED THAT except in the event of an emergency the Council shall give the

occupier of the service strip seven days notice of its intentions to enter to undertake

such Works and

BEFORE the issue of his Final Certificate by the Proper Officer the Developer shall

without cost to the Council execute or procure the execution by all necessary parties

of such deeds as are in the reasonable opinion of the Council necessary to secure to

the Council rights in respect of the provision maintenance and replacement of such

parts of the street lighting system as are situated outside of the limits of the proposed

Road or Roads


13. Procedure for Inspection and Issue of Certificates: WITHIN fourteen days of receipt of written application from the Developer for the issue

of a Part 1 Certificate or Final Certificate pursuant to this Agreement and within

twenty-eight days of written application from the Developer for the issue of a Part 2

Certificate pursuant to this Agreement the Proper Officer shall inspect the Works and

where necessary provide the Developer with a definitive list in writing of any remedial

works required to be carried out before the issue of that Certificate. Any such remedial

works shall be subject to the same inspection procedure detailed herein until such

time as they shall be completed to the reasonable satisfaction of the Proper Officer

who within twenty-eight days thereafter shall issue the relevant Certificate

14. Adoption: UPON the issue of the Final Certificate and subject to the Developer entering into a

Licence under s115E of the Highways Act 1980 if applicable for the soft landscaping

the Road or Roads shall become a highway or highways maintainable at the public

expense

15. Fees:

(1) On the execution of this Agreement the Developer shall pay to the

Council the cost of the preparation and completion of this Agreement and a

duplicate copy thereof in the sum of XXXX pounds (£XXXX)

(2) On the execution of this Agreement the Developer shall pay to the

Council the sum of £????? to cover the Council’s costs and expenses in

connection with the supervision and administration of the road Works

(3) RECEIPT by the Council of the payment of such sums shall not create

any contractual relationship between the Council and the Developer nor

absolve the Developer from any liability or obligation imposed upon him by the

terms of this Agreement or by statute or at common law and the Council will

not be liable for any loss damage or injury which the Developer may sustain

by reason of insufficient or faulty inspection of the Works by the Council

16. Determination by the Council: IF the Developer fails to perform or observe any of the conditions stipulations or

obligations on his part contained herein or if a receiving order in bankruptcy is made


against him or if the Developer is being wound up or if the Developer enters into a

composition or scheme of arrangement (otherwise than for the purpose of

reconstruction or amalgamation) the Council may without prejudice to any of its

rights claims or remedies against the Developer in respect of such non-performance

or non-observance determine this Agreement (except for Clauses 17, 18, 19 and 20

hereof) by notice in writing signed by the Proper Officer and delivered to the

Developer or sent by post to the address stated in this Agreement 17. Power to Execute works in Default: WITHOUT prejudice to Clauses 2 and 16 hereof if the Developer fails to execute or

complete or maintain the Works in accordance with the Developer's obligations

hereunder the Council shall after not less than twenty-eight days notice in writing to

the Developer be entitled to execute or complete or maintain the Works in default by

its own employees or by contract or otherwise and to recover the cost (including

supervision and administration costs) as certified by the Proper Officer from the

Developer

18. Surety's Obligations: (a) If the Developer at any time fails to perform or observe any of the

conditions stipulations or obligations on his part contained in this Agreement

or if a receiving order in bankruptcy is made in respect of the Developers

estate or if the Developer is being wound up or if the Developer enters into a

composition or scheme of arrangement otherwise than for the purpose of

reconstruction or amalgamation) the Proper Officer may without prejudice to

any statutory rights or powers or any other right claim or remedy under this

Agreement send to the Surety notice in writing (hereinafter referred to as the

“default notice”)

(i) specifying the work (hereinafter referred to as the “default work”) to be carried

out in order that the Works may be executed out or completed as the case

may be in accordance with this Agreement; and

(ii) containing an estimate by the Proper Officer of the cost of carrying out the

default work and of the cost of maintaining the Works for a period of twelve

months prior to the Road or Roads becoming maintainable at the public

expense and also a statement of the amount of the usual establishment


charges of the Council (together hereinafter referred to as the “default cost”)

which cost -

(1) shall not exceed the sum of £????? (full cost) being the estimated cost

(2) shall not exceed the sum of £????? (50% of full estimated cost) on and

after the issue of the Part 1 Certificate

(3) shall not exceed the sum of £????? (30% of full estimated cost) on

and after the issue of the Part 2 Certificate

(b) Within twenty-eight days after the Surety has received the default

notice the Surety shall -

(i) pay the default cost to the Council; or

(ii) send to the Council notice in writing (hereinafter referred to as the

“Surety's counter notice”) of the intention of the Surety to carry out the

default work

(c) If the Surety having sent the Surety's counter notice to the Council fails

to start the default work within fifty-six days after the Surety received

the default notice the Surety shall forthwith pay the default cost to the

Council with simple interest thereon at the rate of 3 per cent per annum

above the base rate from time to time of the Council’s bankers

calculated from the date on which the Surety received the default

notice

(d) If the Surety having sent the Surety's counter notice to the Council

starts the default work and the said work is not completed within four

months after the Surety's counter notice was received by the Council or

within such further period as may be agreed by the Council the Surety

shall subject to sub-clause (f) forthwith on demand by the Proper

Officer pay to the Council such sum as the Proper Officer may

determine as being the cost of carrying out any default work not carried

out by the Surety or the cost of maintaining the Works for the period of

twelve months prior to the Road or Roads becoming maintainable at

the public expense as may be the case (or as being the cost of both)

and also pay to the Council the amount determined by the Proper

Officer as being the amount of the appropriate usual establishment

charges of the Council


(e) In the event that the cost to the Council of executing or completing the

Works and maintaining and making good all defects as aforesaid

together with the amount of the Council's usual establishment charges

exceeds the sum paid by the Surety pursuant to sub-clauses (b) (c) or

(d) then the Surety shall subject to sub-clause (f) forthwith on demand

by the Proper Officer pay to the Council the difference between such

cost and the sum so paid by the Surety

(f) The Covenant to pay interest in sub-clause (c) shall in addition apply

with respect to the sums payable under sub clauses (d) and (e)

19. Council's Covenants: THE Council HEREBY COVENANTS with the Developer and with the Surety for the

benefit of all building plots fronting adjoining or abutting the Road or Roads and for

each and every one of them:

(a) to use its best endeavours in consultation with the Surety to mitigate any loss or

damage sustained by reason of any default by the Developer by taking such

reasonable steps as the Council shall think fit

(b) to apply all monies received from the Surety as hereinbefore mentioned

towards the expenditure involved in executing or completing the Works and

maintaining and making good all defects for a period of twelve months after

completion and the amount so received shall be deducted from any sum which

would otherwise be recoverable from the owners of premises fronting the Road

or Roads under the provisions of the Highways Act 1980 or any other Act for

the time being in force replacing or amending the same

(c) in the event of the sum paid by the Surety to the Council exceeding the cost of

executing or completing the Works and maintaining and making good all

defects as aforesaid together with the amount of the Council's usual

establishment charges to repay to the Surety within twenty-eight days after the

Road or Roads become maintainable at the public expense the amount of such

excess with interest calculated at half-yearly rests on the unexpended balance

for the time being of the sum paid by the Surety to the Council at the rate of

interest prevailing from time to time on monies held in a deposit account with

the Council’s bankers


THE Council HEREBY FURTHER COVENANTS that upon issue of the Final

Certificate in accordance with this Agreement the Surety will be released from all

liability under this Agreement in accordance with this Agreement

20. Part or Parts: NOTWITHSTANDING anything hereinbefore contained the Developer may from time

to time during the currency of this Agreement apply to the Proper Officer for his Part

1 Certificate or his Part 2 Certificate in respect of any part of the Road or Roads

(being the whole width of the Road or Roads between points to be defined in the

application) and if the Proper Officer shall be satisfied that the part so defined is in all

respects suitable to be treated as a separate road for the purposes of construction

and adoption in accordance with the several provisions contained in this Agreement

then he may at his absolute discretion issue a separate Part 1 Certificate or Part 2

Certificate as the case may be in respect of that part and thereafter the same

proceedings may be taken in respect of the said part of the Road or Roads as if the

said part were the subject of a separate Agreement under which the terms of this

Agreement applied to the said part separately from the remainder of the Road or

Roads but without prejudice to the application of this Agreement to the remainder of

the Road or Roads and the liability of the Surety shall be reduced as may be agreed

by the Proper Officer with the Developer

21. Notices: ANY notices to be served on the Council shall be in writing and shall be deemed to

be sufficiently served if sent by recorded delivery post to the Head of Corporate Legal Services at Magdalen House, Trinity Road, Bootle, L20 3NJ and any

notices to be served on the Developer or the Surety shall be in writing and shall be

deemed to be sufficiently served if sent by recorded delivery post to the Registered

Office or last known place of business or residence of the Developer or the

Guarantor as the case may be or may be posted on the land

22. Assignment: THIS Agreement may not be assigned by the Developer without the consent of the

Council which consent shall not be unreasonably withheld


23. Arbitration: IN the event of any dispute arising out of this Agreement the same shall be referred

to a sole arbitrator to be agreed between the parties or failing agreement to be

appointed by the President for the time being of the Institution of Civil Engineers and

in this respect this Agreement shall be construed as a submission to arbitration

within the meaning of the Arbitration Act 1996 or any statutory re-enactment or

modification thereof

24.Contracts (Rights of Third Parties) Act 1999 NOTHING in this Agreement is intended to nor shall it give rise to any rights to any

other person under the Contracts (Rights of Third Parties) Act 1999

THE SCHEDULE

SECTION 38 Part 1 Works

1. All highway drainage

2. All other drainage contained within the highway

3. All kerb foundations and where appropriate kerbs including lowering at

vehicle crossings pedestrian and pram-ramps

4. Carriageway sub-base road base and any supporting structures thereto

5. Carriageway base course surfacing where appropriate

6. Demarcation of sight lines and clearance of vision splays

7. Street nameplates

8. Traffic calming measures where applicable and entrance ramps

(temporary measures to be put in place at the location of permanent

features)

9. Street lighting and illuminated traffic signs in position and operative

10. Traffic signalling as agreed with the Proper Officer in writing


Part 2 Works

11. All outstanding kerbing not completed in Part 1

12. Pedestrian ways

13. Carriageway wearing course and/or carriageway base course

14. Vision splays and verges

15. All street furniture not completed in Part 1

16. Road markings

17. All other works described in the Specification and shown on the

Drawings

* It should be noted the Council will not adopt service verges/strips.

SECTION 278 Part 1 Works

1. All highway drainage

2. All other drainage contained within the highway

3. All kerb foundations and where appropriate kerbs including lowering at

vehicle crossings pedestrian and pram-ramps

4. Carriageway sub-base road base and any supporting structures thereto

5. Carriageway base course surfacing where appropriate

6. Demarcation of sight lines and clearance of vision splays

Part 2 Works

7. All outstanding kerbing not completed in Part 1

8. Reconstruction of Pedestrian ways

9. Carriageway wearing course and/or carriageway base course

10. Vision splays and verges

11. Road markings

12. All other works described in the Specification and shown on the

Drawings


IN WITNESS whereof this Agreement has been executed by the parties hereto as a deed the day and year first before written

THE COMMON SEAL of

SEFTON METROPOLITAN BOROUGH COUNCIL was hereunto affixed:

Head of Corporate Legal Services

EXECUTED as a DEED by

?????

as Attorneys for and on behalf of

?????

in the presence of

THE COMMON SEAL of

Surety was

hereunto affixed in the presence of:

Director

Secretary



Annexes

Annex CNotice of Works Form



TRAFFIC MANAGEMENT ACT 2004

NOTICE OF WORKS

Company Name:

Company Address:

Telephone Number:

Fax Number:

Contact for Works

Works Category (Please place an X in the appropriate box.)

URGENT MINOR STANDARD MAJOR

Timings

Proposed Start Date Estimated Stop Date Actual Start Date Actual Stop Date / /

Time of Issue (Urgent Only)

/ / Revised Completion Date / /

Notice Type (Please place an X in the appropriate box.)

Initial Notice Confirmation Notice Actual Start Works Stop Cancellation Revised Duration

Proposed Location of Works (Please Include Full Postcode)

Description of Works (Please include location i.e. Carriageway/Footway/Verge) Traffic Control (Please place an X in the appropriate box. A Traffic Management Plan must also be attached) Signing Only Stop/Go

Boards Two Way

Signals Multi Way

Signals Give & Take

Priority Working

Convoy Working

Lane Closure Contra Flow Road Closure

Please return completed forms to Highways Development Control Team, Magdalen House, Trinity Road, Bootle, L30 3NJ or by Fax to 0151 934 4801 or e-mail to [email protected] !


Sefton CouncilDevelopers Pack

Section 278Agreement

Section 278 Agreement

Sefton Developer Pack Tabbed Dividers_Layout 1 30/07/2013 08:33 Page 9


Contact Details:





Section 278 Agreements - Developer GuidanceContents

CONTENTS

Introduction

Chapter 1 – Legislation

Chapter 2 – FinanceSection 2.1 – The Bond or SuretySection 2.2 – Payments to Sefton CouncilSection 2.3 – Commuted SumsSection 2.4 – Public Liability Insurance

Chapter 3 – Consultation

Chapter 4 – Design and Construction of Highway WorksSection 4.1 – Design – GeneralSection 4.2 – Design – Street LightingSection 4.3 – Design and Installation – Urban Traffic Control (UTC) EquipmentSection 4.4 – Design – Highway StructuresSection 4.5 – Design – by Sefton CouncilSection 4.6 – Design – by External ConsultantSection 4.7 – Construction - GeneralSection 4.8 – Construction – procured by Sefton CouncilSection 4.9 – Construction – by External ContractorSection 4.10 – Construction – Maintenance Responsibilities

Chapter 5 – Statutory and Non Statutory Obligations

Chapter 6 – Health and Safety

Chapter 7 – Road Safety Audit

Chapter 8 – Notice of Works

Chapter 9 – Land Compensation Act 1973 & Noise Insulation Regulations 1975


Section 278 Agreements - Developer GuidanceIntroduction

Introduction

Where a new development requires work to be carried out on the existing (publicly maintained)highway it will be necessary for the developer to enter into an agreement with Sefton Council underSection 278 (s278) of the Highways Act 1980. Often, a proposed development will require work to becarried out under a s38 agreement in addition to work carried out on the existing highway. In suchcases, it is possible for the developer to enter into a combined s38/s278 agreement.

The purpose of this document is to guide developers through the process of establishing such as278 agreement to ensure that highway works are delivered to the satisfaction of all parties. Somestages in the process are exactly the same as those required to be carried out as part of a s38agreement and in these instances developers are asked to refer to the relevant sections in the s38developers guidance in this pack. This guide outlines what developers and Sefton Council can expectfrom each other and the various options for the implementation of the off-site highway works thatare available to the developer.

Sefton Council’s Highways Development Control Team is keen to support developers and assist inthe delivery of s278 works to achieve : -

• The highest quality development possible• The efficient and effective delivery of the highway works for the benefits of all parties• The delivery of highway works constructed to adoptable standards• The minimum disruption to the existing highway network during construction• Delivery in accordance with the relevant legislation• The consistent use of acceptable materials on the publicly maintained highway• Safety for all personnel working within the site and also the general public, at all times• A development that is not a financial burden or maintenance liability to Sefton Council



Chapter 1Legislation




Table 1.1

Procurement Route

Design Technical Approval Construction Supervision

Developer Sefton Council Developer Sefton Council

Sefton Council Sefton Council Developer Sefton Council

Sefton Council Sefton Council Sefton Council Sefton Council

Developer Sefton Council Sefton Council Sefton Council

1. Legislation

Work funded or executed by any party other than Sefton Council on the publicly maintained highway,as a result of planning permission being granted, is carried out under Section 278 of the HighwaysAct 1980.

Under Section 278 of the Highways Act 1980, the Highway Authority may enter into an agreementwith a developer if the they are satisfied that the proposed works are to the benefit of the public.Section 278 (1) of the Act (amended by New Roads and Street Works Act 1991) states : -

“A highway authority may, if they are satisfied it will be of benefit to the public, enter into anagreement with any person – on terms that that person pays the whole or such part of the costs ofthe works as may be specified or determined in accordance with the agreement : -

• For the execution by the authority of any works which the authority are or may be authorisedto execute, or

• For the execution by the authority of such works incorporating particular modifications,additions or features, or at a particular time or in a particular manner”

Sefton Council may seek payment for the future maintenance of the new or revised highway from thedeveloper, acquiring monies through ‘commuted sums’ where necessary. Commuted sums allowgreater flexibility to adopt non-standard materials and other items in instances when developmentincreases the future maintenance liability for Sefton Council. As set out in Section 278 (3) of the Act : -

“The agreement may also provide for the making to the highway authority of payments in respectto the maintenance of the works to which the agreement relates and may concern such incidentaland consequential provisions as to appear to the highway authority to be necessary or expedientfor the purpose of the works.”

Sefton Council has identified a number or procurement routes for developers for the various elementsof the design and delivery of their s278 works. These are detailed in Table 1.1.

The standard Section 278 legal agreement (Appendix 1) can be altered accordingly to suit thealternative routes as set out within Table 1.1



Sefton Council reserves the right to vary the terms of these agreements where appropriate. Typically,these agreements set out : -

• Details of the improvements• Circumstances where the highway layouts will change• Any programming considerations• Developers commitment to meet the cost of the highway works• Sefton Council fees and charges• Arrangements for dealing with statutory undertakers, Traffic Regulation Orders, consultation,

street lighting, traffic signals and road safety audits• Approach to dealing with the Construction Design and Management (CDM) Regulations 2007• Need for a financial bond at the inception of the s278 agreement or payment within fourteen

days of the execution of the legal agreement• Arrangements for design checks and technical approval (where necessary)• Approach to reporting (time, cost and completion)

In instances where the developer carries out the construction of the highway works, the developermust provide written proof to Sefton Council that the Health and Safety Executive has been informedthat they are the Client for the highway works, in accordance with the Construction Design andManagement Regulations 2007 (CDM Regs) and before the s278 agreement is executed.

The highway layout agreed when planning permission was granted, will be regarded as a generalarrangement and may be subject to minor change as a consequence of subsequent consultation,detailed design and the required Sefton Council technical approval process.



Chapter 2Finance




2. Finance

2.1 The Bond or Surety

Ordinarily, the costs associated with a s278 legal agreement are payable within fourteen days ofthe execution of the legal agreement. However, where this situation differs, the developer is requiredto deposit a bond or surety with Sefton Council to cover the cost of the highway works, fees andcharges and commuted funds. This bond ensures that Sefton Council does not incur any costs if thehighway works are stalled, changed or aborted by the developer.

The terms and conditions of providing a bond or surety can be found within the s38 (Chapter 2)guidance of this pack.

2.2 Fees and charges

Any costs incurred by Sefton Council’s Highways Development Control Team in administering thes278 role will be paid by the developer.

For all options, Sefton Council’s fee cost is 10% of the value of the works. The works costs are basedupon Sefton Council’s current service contract rates.

If the developer requires the technical involvement of Sefton Council’s Highways Development ControlTeam prior to the agreement being signed, then they must provide a written undertaking to pay allreasonable costs incurred.

Any external fees required will be funded directly by the developer.

2.3 Commuted sums

Commuted sums are necessary when development increases Sefton Council’s future maintenanceliability. The circumstances relating to payment of commuted sums is contained within the s38guidance of this pack.

Developers should discuss their requirements with Sefton Council’s Highways Development ControlTeam ideally during pre-planning application discussions.

2.4 Public liability insurance

In cases where Sefton Council is not requested to procure the construction of the highway works,the developer must indemnify Sefton Council against any claims by third parties arising from anywork included within the s278 agreement.

Written evidence must be provided that the highway works contactor has a minimum of £5 millionof public liability insurance, with no limit on the number of claims.



Chapter 3Consultation



Section 278 Agreements - Developer GuidanceChapter 3 - Consultation

3. Consultation

Sefton Council will undertake the necessary consultation regarding the s278 works with all interestedparties, including residents, in accordance with Sefton Council’s standard policies, standing ordersand procedures.

The developer will pay all consultation costs regardless of the outcome.

When a development requires changes to an existing Traffic Regulation Order (TRO), the creation ofa new TRO, or the provision of a temporary TRO to facilitate the works, the developer shall pay allassociated costs, including consultation. Developers are reminded that TRO’s are subject to statutoryprocedures and the formal consultation stage can be protracted.

Advice regarding the need, timescales and likely cost of consultation can be obtained from SeftonCouncil’s Highways Development Control Team. The developer should consider the implications ofconsultation when developing a project delivery programme.



Chapter 4Design andConstruction of s278 Works




4. Design and Construction of s278 Works

Part 1 – Design

4.1 Design - General

The design of highway works must be in accordance with the guidance supplied in this pack. Advicein respect to all these issues can be obtained from Sefton Council’s Highways Development ControlTeam.

Once planning permission is granted, Sefton Council will provide the developer with a letter tocommence the s278 process. At this stage, it is recommended that the developer contacts SeftonCouncil’s Highways Development Control Team at the earliest opportunity to arrange a meeting todiscuss the delivery of the s278 highway works.

In most cases, s278 works are designed and implemented by Sefton Council.

Where developers want the design to be carried out by an external consultant, alternativearrangements can be discussed with Sefton Council’s Highways Development Control Team in orderto agree on the approach that will deliver the best outcomes for both Sefton Council and thedeveloper. Developers should be aware that if the design is procured through their own consultants,technical approval for the design would need to be carried out by Sefton Council at a cost to thedeveloper.

The developer is responsible for ensuring that the development’s horizontal and vertical alignmentstie back into the existing highway boundaries which they impact upon.

4.2 Design – Street Lighting

Should any development include proposals for street lighting works, the developer will be requiredto submit the lighting design to Sefton Council’s Highways Development Control Team for technicalapproval before any lighting installation may commence. Further information regarding the designof street lighting can be found within the s38 guidance of this pack (Section 4.4).

4.3 Design and installation – Urban Traffic Control (UTC) Equipment

Should any development include proposals for traffic signal works, the developer will be required tosubmit a Traffic Impact Assessment (TIA) showing the effect that the signals will have upon theexisting highway network. Further information regarding the design of urban traffic controlequipment can be found within the s38 guidance of this pack (Section 4.5).

4.4 Design – Highway Structures

Should any development include proposals for structures associated with the highway and wishSefton Council to adopt these structures then technical approval from Sefton Council is required.Sefton Council will be the Technical Approving Authority (TAA) to oversee the compliance of all designsand construction details with the relevant standards and specification. Further information regardingthe design of highway structures can be found within the s38 guidance of this pack (Section 4.6).



4.5 Design – by Sefton Council

Sefton Council will undertake the design of the highway works to the timescales stipulated withinthe s278 agreement.

The developer must provide the following information prior to the start of the design process : -

• General arrangement drawing(s)• Development programme• Tie-in levels at the interface with the publicly maintained highway• Outcomes from Road Safety Audit(s) on draft s278 proposals• Outcomes from Traffic Impact Assessment(s) or studies relating to the development

When Sefton Council consults on design issues, they will provide the developer with : -

• A Consultation programme• Consultation outcomes• Consultation impact on the scope of the s278 works

Sefton Council will provide the developer with the budget estimate for the s278 project costs. Thisfigure will be used to determine the bond figure prior to the s278 agreement being signed and basedupon the current Sefton Council service contract rates.

4.6 Design – by External Consultant

The developer must ensure that the s278 works are designed in accordance with the guidancesupplied in this pack to ensure that the proposals are acceptable to Sefton Council.

The developer needs to provide Sefton Council with details of the proposed external designer, whomust have relevant experience and capability. The information provided must be detailed enough toallow designer competency to be assessed. Sefton Council will write to the developer confirming thedesigner’s acceptability.

The design of the highway works shall be carried out in accordance with the timescales stated withinthe s278 agreement.

When Sefton Council consults on design issues, they will provide the developer with : -

• A consultation programme• Consultation outcomes• Consultation impact on the scope of the s278 works

Once the detailed design is complete, the designer shall provide the design information to SeftonCouncil, who will undertake the technical approval of the design.

The design check will be undertaken to the timescales stated within the s278 agreement. Details ofany design modifications required by Sefton Council will be provided to the designer. Once allmodifications have been addressed, Sefton Council will write to the designer accepting the detaileddesign and give formal technical approval.



Part 2 – Construction

4.7 Construction - General

As part of the development of a s278 agreement, Sefton Council’s Highways Development ControlTeam shall discuss the construction procurement options with the developer, outline their individualmerits and determine the most suitable approach to be included within the s278 agreement.

Sefton Council will not allow any works to commence on the publicly maintained highway until thefollowing processes and procedures have been completed : -

• All statutory procedures• All non-statutory consultation processes completed• Technical approval given for structure(s) within/abutting the highway• All design checks satisfactorily completed (for designs not carried out by Sefton Council)• An agreed traffic management plan • Road safety audits (up to Stage 2)• All necessary fees/payments made to Sefton Council• Section 278 agreement executed• Confirmation that an adequate bond has been provided (where applicable)• Written confirmation from the developer agreeing to pay the commuted sums (where

applicable)• Written confirmation that the developer has contacted the Health and Safety Executive (where

applicable)• Noticing using Sefton Council’s Streetworks Mayrise system is in place

Sefton Council will give the developer approval to commence the highway works, with SeftonCouncil’s Highways Development Control agreeing a construction programme with the developerthat balances the needs of local businesses and residents.

Sefton Council’s Highways Development Control Team will issue a Practical Completion Certificate tothe developer’s contractor on agreement that the highway construction works are substantiallycomplete. The Practical Completion Certificate will not be issued if the actual tie-in levels between thedevelopment and the publicly maintained highway result in Sefton Council’s highway designstandards being compromised. The developer is responsible for any remedial works.

Sefton Council’s Highways Development Control Team will issue a Final Completion Certificate to thecontractor at the end of the 12 month maintenance period (24 months in the north of the Borough)subject to the contractor correcting any outstanding defects. The maintenance period commenceswhen the Practical Completion Certificate is issued.

4.8 Construction – procured by Sefton Council

In cases where developers have requested that Sefton Council procure the construction work, thework will be supervised by Sefton Council with Sefton Council also taking responsibility for healthand safety and the road safety audits.



4.9 Construction – by External Contractor

In terms of an award to an external contractor, Sefton Council will supervise the works.

Sefton Council’s Highways Development Control Team will give approval to commence theconstruction works upon the receipt of the following pre-construction information : -

• Notification to start – minimum 4 weeks notice in writing• Pre-start meeting – minimum 2 weeks prior to construction start. Agenda, attendees and

format will vary depending on work type.• Contractors insurance – Sefton Council must be indemnified against third party claims arising

from the highway works. The developer must provide written evidence that the contractor hasa minimum £5 million public liability insurance with no limit on the number of claims.

The highway works must be completed within the timescales stipulated in the s278 agreement tominimise disruption to highway users.

If the timescales are not achieved as a consequence of the developer’s own actions, agreement withSefton Council’s Highways Development Control Team is required for the additional time to completethe highway works. Additional administration and supervision costs will be charged for the period.If additional time is not allowed, then Sefton Council can use the bond to complete the works.

Once the highway works are judged to be substantially complete, a Practical Completion Certificatewill be issued by Sefton Council’s Highways Development Control Team. Practical completion triggersthe start of the 12 month (24 months in the north of the Borough) maintenance period.

The developer must provide Sefton Council’s Highways Development Control Team with ‘as built’drawings at the end of the maintenance period. The final completion certificate will not be issueduntil this is provided.

Sefton Council’s Highways Development Control Team will issue the final completion certificate to thedeveloper at the end of the maintenance period, subject to any defects being corrected.

4.10 Construction – Maintenance Responsibilities

The developer’s maintenance responsibility for the highway works depends upon the form ofagreement and how the works have been procured, details of which can be found in Table 4.1.

Table 4.1

Procurement Route Maintenance Responsibility

Construction Supervision On Issue of PracticalCompletion Certificate

On Issue of FinalCompletion Certificate

Developer Sefton Council Developer Sefton Council

Sefton Council Sefton Council Sefton Council Sefton Council



Chapter 5Statutory and Non StatutoryObligations



Section 278 Agreements - Developer GuidanceChapter 5 - Statutory and Non Statutory Obligations

5. Statutory and Non Statutory Obligations

Statutory and non statutory obligations are exactly the same for s278 works as that identified fors38 works as detailed in the s38 Developer Guidance part of this pack. Developers are advised torefer to this section or, if necessary, discuss the issues with Sefton Council’s Highways DevelopmentControl Team.



Chapter 6Health and Safety



Section 278 Agreements - Developer GuidanceChapter 6 - Health and Safety

6. Health and Safety

The health and safety process required for s278 works is exactly the same as that identified for s38works as detailed in the s38 Developer Guidance part of this pack. Developers are advised to referto this section or, if necessary, discuss the issues with Sefton Council’s Highways DevelopmentControl Team.



Chapter 7Road Safety Audit




7. Road Safety Audit

The road safety audit (RSA) process required for s278 works is exactly the same as that identifiedfor s38 works as detailed in the s38 Developer Guidance part of this pack. Developers are advisedto refer to this section or, if necessary, discuss the issues with Sefton Council’s HighwaysDevelopment Control Team.



Chapter 8Notice of Works



Section 278 Agreements - Developer GuidanceChapter 8 - Notice of Works

8. Notice of Works

All improvement works on the highway have to be registered by the Highway Authority and theyare subject to advance notice periods. As a result, it is crucial that the developer contacts SeftonCouncil’s Highways Development Control Team as the earliest point and completes a notice of worksform to avoid possible delays. A copy of this form is provided within the Section 38 Annexes.



Chapter 9The LandCompensation Act 1973 & Noise InsulationRegulations 1975



Section 278 Agreements - Developer GuidanceChapter 9 - The Land Compensation Act 1973 & Noise Insulation Regulations 1975

9. The Land Compensation Act 1973 & Noise Insulation Regulations 1975

Under the Land Compensation Act 1973 people can claim compensation if the value of their propertyis depreciated by noise and other specific physical factors arising from the use of a new or adoptedhighway.

The developer will be required to carry out at his own expense before and after works noise levelsurveys to determine the need for any sound insulation pursuant to the Noise Insulation Regulations1975.

The Section 278 legal agreement contains a clause requiring the developer to indemnify SeftonCouncil against the full costs of any payments that Sefton Council makes under these regulations.Sefton Council will notify the developer of any claim they receive.



Annexe

July 2013

Alan LuntDirector of Built Environment

Contact Details:





Section 278 Agreements - AnnexeContents

CONTENTS

Annex A – Model Section 278 Legal Agreement



Annexe

Annex AModel Section 278Legal Agreement(subject to agreementwith Sefton Council)



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SEFTON METROPOLITAN

BOROUGH COUNCIL

MODEL SECTION 278 AGREEMENT


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SEFTON BOROUGH COUNCIL MODEL SECTION 278 AGREEMENT

Guidance Notes for Developers Form of S278 Agreements

Introduction.

• The Council has prepared a model form of agreement for highway works carried out under Section 278 (sometimes in combination with Section 38) of the Highways Act 1980.

• A copy of the model form accompanies these guidance notes. • The Council reserves the right to change or adapt the model from time to time. • The agreements will be built from the following documents (attached to this note):

o A standard basic agreement; o A schedule covering the following scenarios:

! Scenario 1: Where the Developer both designs and constructs the Works; ! Scenario 2: Where the Council both designs and constructs the Works; ! Scenario 3: Where the Council designs, but the Developer constructs the Works; ! Scenario 4: Where the Developer designs, but the Council constructs the Works.

• The Developer has a choice as to whether to : o Provide a Surety in the case of Scenarios 1 and 3; or o For any other scenario, deposit a cash sum with the Council as security for the works; and o Both options are covered by the schedules.

• The layout of the actual agreement produced by the Head of Corporate Legal Services may differ from the attached documents. The Head of Corporate Legal Services may adapt or paraphrase them, for convenience, to fit particular circumstances or discard any unused terms. However the principles in the documents will be the same.

• The attached documents are current as at 12th June 2013. The Council reserves the right to update its standard documents from time to time.

STANDARD BASIC AGREEMENT

AN AGREEMENT by deed dated 2013 (‘Today’) made between The Metropolitan Borough Council of Sefton of Magdalen House, 30 Trinity Road, Bootle, L20 3 NJ (‘SBC’) and ‘the Developer’ whose details are specified below and ‘the Surety’ (if any) whose details are specified below (together ‘the Parties’): Who agree as follows:

1. In this agreement the words listed in the following table have the meanings assigned to them: Design Check Fee : £X (being the Council’s standard design check fee as specified

by the Highways Engineer from time to time). (NB: the Council reserves the right to review this fee from time to time)

Design Fee. £X (being the Council’s standard design fee as specified by the Highways Engineer from time to time). (NB: the Council reserves the right to review this fee from time to time)

Developer (company registration number)

: Insert Builder’s CRN.

Developer (registered office) : Insert Builder’s Registered Office. Developer. : Insert Builder’s name. Drawings : Insert details of drawing numbers that identify the Works, Copies

of the drawings will be annexed to the final agreement. Estimated Works Cost : £ insert estimated cost of the Works Estimated Maintenance Cost : £ insert estimated cost of maintaining the Works during the

Maintenance Period. Inspection Fee : £X (being the Council’s standard inspection fee as specified by

the Council’s Highways Engineer from time to time). (NB: the Council reserves the right to review this fee from time to time)

Legal Fee : £X (the Council’s standard legal fee as specified by the Council’s Head of Corporate Legal Services from time to time). (NB: the Council reserves the right to review this fee from time to time)

Legal Title : Insert brief description of Developer’s ownership details by reference to registered title number. If none state ‘NOT APPLICABLE’

Site Identification Plan : Insert the drawing number that identifies the site boundary. A copy of this drawing will be annexed to the final agreement.

Site. : Insert a brief description of highway land. Surety (company registration number) : Insert Surety’s CRN. If none state ‘NOT APPLICABLE’ Surety (registered office) : Insert Surety’s registered office. If none state ‘NOT

APPLICABLE’ Surety. : Insert Surety’s name. If none state ‘NOT APPLICABLE’

1. If any of the words in the preceding table are marked ‘Not Applicable’ those words are to be ignored for the

purposes of interpreting this agreement. If the expression ‘the Surety’ is marked ‘Not Applicable’ in the above table then the Surety is not a party to this agreement.


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2. The schedule annexed to this agreement and signed by the Parties forms part of this agreement and this agreement, plus the schedule, shall be read and construed as one document called ‘the S278 Agreement’.

3. The Parties agree as set out in the schedule and agree to observe and perform their respective obligations set out in the schedule.

4. IN WITNESS of which the Parties have executed this document as a deed Today. [Usual execution clauses of all parties will be added here to the engrossed agreement which shall be prepared prior to

completion by the Head of Corporate Legal Services]

SCENARIO 1 Developer to Design.

Developer to Construct. SCHEDULE OF TERMS

PURPOSE OF THIS SCHEDULE 1. This schedule forms part of the S278 Agreement to which it is annexed. 2. The schedule is designed for use in the following scenario:

a. The Developer designs the Works; b. The Developer builds the Works.

3. This schedule is divided into four parts: a. Part 1: which defines certain terms and contains rules for interpretation of this agreement b. Part 2: which sets out the background to this agreement c. Part 3: which contains the operative provisions of this agreement. d. Part 4A: which contains provisions that apply to a Surety if a Surety is named as a party to the S278

Agreement; e. Part 4B: which contains provisions that apply to a Surety if a Surety is not named as a party to the S278

Agreement; SECTION 1

(Definitions and Interpretation)

4. In these terms the expressions listed in the table below have the meanings assigned to them unless the context in which they are used indicates a different intention.

Additional Design Check Fee. : Means the reasonable and proper Costs incurred by SBC for approving any subsequent alterations to the design of the Works or additional work by SBC for approving the design of the Works not covered by the Design Check Fee.

Additional Inspection Fee. : Means the reasonable and proper Costs incurred by SBC for re-inspecting the Works or additional work by SBC for inspecting the Works not covered by the Inspection Fee.

Building Contract. : Means (if the Developer appoints a Contractor) any contract between the Developer and the Contractor for the carrying out of the Works

CDM. : Means the Construction (Design and Management) Regulations 2007 (SI 2007/320).

Claim. : Means any claim, demand or proceedings or liability. Construction Management Plan. : Means a written statement detailing the individual construction

processes to be employed in carrying out the Works and a signing strategy that sufficiently demonstrates that the safety of highway users and workers will be ensured at all times.

Contractor. : Means any contractor appointed by the Developer to carry out the Works.

Corrective Action. : Means any remedial works identified and specified by the Highways Officer that are required to achieve Practical Completion or the securing of Safety Report 3 or the issue of the Final Certificate (as the case may be).

Costs. : Means costs and includes without limitation charges, disbursement, penalties (but not penalties arising from the fault of the person claiming the Costs) and fees together with VAT provided that any item within the definition of Costs is properly and reasonably incurred.

CRC Costs. : Means any Costs attributable to participation by the Developer or SBC in the Carbon Reduction Commitment Energy Efficiency Scheme as defined in Article 2 of the CRC Energy Efficiency Scheme Order 2010 (S2010/768) or any similar scheme (if that Scheme applies to the Works).

Default Cost. : Means the estimated cost of carrying out the Default Works as specified in the Default Notice.

Default Event. : Means any of the following events: • The Developer is in fundamental breach of the S278

Agreement; • The Developer is in breach of the Developer’s obligations

under the S278 Agreement and has failed to remedy that breach within a reasonable time of receiving written notice to rectify the breach from SBC;

• The Developer is Insolvent.


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Default Notice. : Means (if Section 4A applies) the notice served by SBC on the Surety under paragraph 99 of this schedule.

Default Work. : Means any work that the Developer fails to carry out that the S278 Agreement requires the Developer to carry out and which is specified by the Highways Officer in the Default Notice.

Default Works Period. : Means a period set by the Highways Officer (acting reasonably) and specified in the Default Notice for completion of the Default Work not being less than 20 Working Days.

Defects. : Means defects in the Works that manifest themselves during the Maintenance Period.

Design Check Fee. : Means any figure specified in the S278 Agreement which represents the ‘Design Check Fee’ but if no figure is specified then ‘Design Check Fee’ means the reasonable and proper Costs incurred by SBC for approving the details of the Works submitted by the Developer including the cost of any technical advice that is required before any feature or structure of the Works is proposed or approved.

Developer. : Means the Developer named in the S278 Agreement. Development. : Means the development authorised by the Planning Permission and

described in the S278 Agreement which prompts the Works. Drawings. : Means the drawings specified in the S278 Agreement that define the

Works. Estimated Works Cost. : Means the estimated cost of carrying out the Works as specified in the

S278 Agreement or if no ‘Estimated Works Cost’ is specified in the S278 Agreement ‘the Estimated Works Cost’ means a reasonable and proper estimate made by the Highways Officer of the cost of carrying out the Works.

Estimated Maintenance Cost. : Means the estimated cost of maintaining the Works during the Maintenance Period as specified in the S278 Agreement or if no ‘Estimated Maintenance Cost’ is specified in the S278 Agreement ‘the Estimated Maintenance Cost’ means a reasonable and proper estimate of the cost of maintaining the Works during the Maintenance Period.

Final Certificate. : Means a certificate issued by the Highways Officer certifying that the Maintenance Period has expired and there are no Defects and that SBC will maintain the Works as highway maintainable at public expense.

HA80. : Means the Highways Act 1980. Health and Safety File. : Means the file or other permanent records containing the information

required by CDM. Health and Safety Plan. : Means the plan that contains the pre-construction information and the

construction phase both as defined in CDM. Highways Officer. : Means a suitably qualified officer or agent of SBC appointed by SBC to

perform the functions of the Highways Officer for the purposes of the S278 Agreement.

Insolvent. : Means the occurrence of any of the following events in respect of the Developer assuming the Developer is a corporation;

• The appointment of an administrative receiver over the whole or part of the Developer’s assets;

• The appointment of an administrator or liquidator for the Developer under any provision of the Insolvency Act 1986;

• Any steps taken connected with any voluntary arrangement for the benefit of the Developer’s creditors;

• The liquidation of the Developer under any provision of the Insolvency Act 1986;

• The Developer is struck off the register of companies; • The Developer ceases to exist in any way; or • If the Developer is a natural person; • A bankruptcy order is made against the Developer; • A petition for bankruptcy is made against the Developer; • Any step is taken in connection with a voluntary

arrangement or any compromise or arrangement for the Developer’s creditors.

Inspection Fee. : Means any figure specified in the S278 Agreement which represents the ‘Inspection Fee but if no figure is specified then ‘Inspection Fee’ means the reasonable and proper Costs incurred by SBC in inspecting the construction of the Works (including Statutory Undertakers Facilities) to ensure that the Works comply with the terms of the S278 Agreement.

Insurance. : Means effective insurance by the Developer (evidenced by a certificate) against public liabilities of a level of cover of not less than


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£10m per incident or such other level of cover as the Highways Officer consents to in writing.

Legal Fee. : Means any figure specified in the S278 Agreement which represents the ‘Legal Fee’ but if no figure is specified then ‘Legal Fee’ means the reasonable and proper legal Costs of SBC incurred in the negotiation and preparation being SBC’s legal fees for the preparation of the S278 Agreement.

Legal Title. ; Means the legal estate or interest owned by the Developer for the land upon which the Development takes place which is described in the S278 Agreement.

Maintenance Period. : Means the period of twelve months from and including the PC Date or such lesser period as the Highways Officer may agree in writing [NB: the Highways Engineer will normally agree to reduce this to 12 months for the south of Sefton Borough] .

Notice of Works. : Means a written statement issued by the Highways Officer to the effect that he/she is satisfied that the Works may commence in accordance with paragraph 25 of this schedule.

PC Date. : Means the date the Practical Completion Statement is issued. Planning Permission. : Means the planning permission authorising the Development. Practical Completion (or PC). : Means practical completion of the Works including any works required

as a result of Safety Report 3 that enables the Works to be used for the purposes for which they were designed.

Practical Completion Statement. : Means a written statement by the Highways Officer to the effect that he/she is satisfied that Practical Completion has been achieved.

Programme. : Means the programme for the carrying out the Works prepared by the Developer and agreed from time to time by the Highways Officer showing the sequence in which the Works are to be carried out and an estimate of the time in which each stage of the Works will be carried out.

Reasonable Approval. : Means a written approval of the Highway Officer obtained in advance of the matter for which approval is sought and which approval is subject to a qualification that the approval must not be unreasonably withheld or delayed.

S278 Agreement. : Means the agreement under S278 HA80 of which this schedule forms an integral part.

Safety Guidance. : Means the Department of Transport Highway Safety and Transport Department Standard HD 19/03 Road Safety Audits or any similar or equivalent guidance issued by the Department of Transport. Or if that guidance no longer exists any similar or comparable guidance from time to time.

Safety Audit 2. : Means an audit under the Safety Guidance into road safety aspects of the detailed design of the Works to be carried out before commencement of the Works.

Safety Audit 3. : Means an audit under the Safety Guidance into road safety aspects of the completed Works to be carried out before the PC Date.

SBC. : Means Sefton Borough Council of Magdalen House, 30 Trinity Road, Bootle, L20 3NJ.

Sewer Adoption Agreement. : Means an agreement made under s.104 of the Water Industry Act 1991.

Site Identification Plan. : Means the Site Identification Plan defined in the S278 Agreement. Site. : Means the land briefly described in the S278 Agreement as ‘the Site’

and identified by suitable colourings or coloured edging on the Site Identification Plan.

Specification. : Means specification of the Works that has the prior approval of the Highways Officer (acting reasonably).

Statutory Undertaker. : Means a statutory undertaker as defined in s.329(1) HA80, persons authorised under any law to carry on an undertaking for the supply of electricity, gas, water or any sewerage undertaking, the Environment Agency, the holder of a licence to operate telecommunications systems or persons with apparatus installed pursuant to a right or licence granted under s.50 of the New Roads and Street Works Act 1991 and also the Environment Agency; the Civil Aviation Authority and the holders of licences to supply cable television.

Statutory Undertakers Facilities. : Means mains, pipes, conduits, cables, services, plant, equipment, inspection chambers or other facilities in or about the Site or the Works vested in or managed by Statutory Undertakers.

Street Furniture. : Means street lighting, traffic light, illuminated traffic signs or other street furniture that form part of the Works.

Surety Counter Notice. : Means (if Section 4A of this schedule applies) a notice service by the Surety upon SBC under paragraph 101 of this schedule that the Surety wishes to carry out the Default Works


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Surety. : Means any Surety that is named in the S278 Agreement. Target Completion Date. : Means the date by which the Developer must achieve Practical

Completion of the Works being the date twelve months from the date of the S278 Agreement or such other date as the Highways Officer may agree in writing.

Today : Means the date of the S278 Agreement. Traffic Management Plan. : Means a plan which identifies temporary management arrangements

and controls to be implemented at the Developer’s expense during the Works (accounting for the Traffic Management Act 2004) including time restrictions, routes for heavy goods vehicles, parking and temporary pedestrian routes, details of any Traffic Regulation Order and temporary diversions to ensure the best possible traffic flows are maintained on the highway during the Works.

Traffic Regulation Order. : Means an order (whether temporary, permanent or by way of variation of an existing order) required in order to start and carry on the Works under the Road Traffic Regulation Act 1984.

Ultimate Completion Date. : Means the date six months after the expiry of the Target Completion Date or such other date as the Highways Officer may agree in writing.

VAT. : Means tax chargeable under the Value Added Tax Act 1994 or any similar tax.

Warning Notice. : Means a written notice served by SBC on the Developer specifying a material breach of the terms of the S278 Agreement, the steps the Developer must carry out to rectify the breach and a reasonable period (not exceeding one month) in which the Developer must take the steps to rectify the breach.

Working Day. : Means any day except Saturday, Sunday or an English bank holiday.

5. The S278 Agreement shall be interpreted in the following way: a. The S278 Agreement and this schedule form one complete document; b. Unless the context otherwise requires, a reference to one gender includes all other genders; c. Words that import the singular import the plural and vice versa; d. A reference to a statute or section within a statute includes any statutory modification or re-enactment of it

and any subordinate legislation made under it; e. Words cognate with defined expressions shall be construed accordingly;

SECTION 2 (Background)

6. SBC is the local highway authority for the Site for the purposes of HA80. 7. The Developer owns the Legal Title in the land required for the Development. 8. The S278 Agreement is made by SBC under 278 HA80, s.111 Local Government Act 1972, s. 1 Localism Act 2011

and all other legal powers available to SBC to enter into the S278 Agreement. and shall be enforced by SBC accordingly without prejudice to any other means of enforcing the S278 Agreement available to SBC.

9. The Developer intends to carry out the Development in accordance with the Planning Permission. 10. The Developer agrees to design, build and pay for the Works in accordance with the S278 Agreement. 11. SBC are satisfied the Works benefit the public. 12. The Surety (if a party to the S278 Agreement) has agreed to join in the S278 Agreement to guarantee performance of

the Developer’s obligations. SECTION THREE

(Operative Provisions)

COVENANTS. 13. The Developer covenants with SBC to observe and perform all of the Developer’s obligations contained in the S278

Agreement. 14. SBC covenants with the Developer to observe and perform all of SBC’s obligations contained in the S278

Agreement. 15. If the Developer undertakes the Works through the medium of the Contractor the Developer nevertheless remains

primarily responsible to SBC for performance of the Developer’s obligations under the S278 Agreement.

DESIGNING AND DOING THE WORKS 16. The Developer must:

a. Design, construct and complete the Works in accordance with the terms of the S278 Agreement. b. Obtain the Highway Officer’s prior written approval to the detailed design of the Works before starting the

Works. c. Having started the Works;

i. Diligently proceed with them; ii. Use reasonable endeavours to achieve Practical Completion by the Target Completion Date; iii. In any event achieve Practical Completion by the Ultimate Completion Date.

PAYMENTS 17. The Developer must pay to SBC:

a. The Legal Fee Today. b. On demand by the Highways Officer:


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i. the Design Check Fee; ii. the Inspection Fee; iii. the Additional Inspection Fee (if applicable); iv. the Additional Design Fee (if applicable); v. the reasonable and proper cost incurred by SBC in obtaining any Traffic Regulation Order; vi. All legal, administrative and construction costs incurred by SBC regarding any amendments

required to existing Traffic Regulation Orders arising as a consequence of the Works. c. If a sum due to be paid by the Developer to SBC under the S278 Agreement is not paid on the date it

ought to be paid interest upon that sum from the date it is due to be paid until it is actually paid (before and after any judgment) at the rate of 2% above the current base rate of National Westminster Bank PLC.

TRAFFIC REGULATION. 18. In these terms ‘Advance Warning Signs’ means signs that inform the public in advance of the start of the Works (or

part of the Works) and other relevant information. 19. The Developer must:

a. not interfere with the flow of traffic on existing highways without permission from SBC; b. Only interfere with the flow of traffic on existing highways if authorised (and only to the extent authorised)

by a Traffic Regulation Order; c. Install Advance Warning Signs where SBC advise to SBC’s reasonable satisfaction.

20. SBC will (on request by the Developer) use reasonable endeavours to obtain any necessary Traffic Regulation Order as soon as practicable.

21. In dealing with the making of the Traffic Regulation Order SBC: a. Will disregard the S278 Agreement; b. Owe no duty to the Developer by reason only of the S278 Agreement; c. Resolve or determine objections in a reasonable and lawful way; d. Act impartially according to its duties as highway authority; e. If there are no objections and SBC resolve to make the Traffic Regulation Order complete the statutory

formalities as soon as reasonably practicable. LICENCE TO CARRY OUT WORKS.

22. SBC give the Developer licence to enter on the Site to do the Works. 23. The licence given to Developer to enter on the Site includes any workers, machinery, materials and equipment

necessary to do the Works. 24. SBC allows the Developer to break open the surface of the Site to do the Works provided the Developer makes good

any damage. NOTICE OF WORKS

25. The Developer must not start the Works: a. before the Highways Officer issues a Notice of Works. b. without giving SBC at least 21 Working Days notice from the date the Notice of Works is issued of the

Developer’s intention to start the Works (unless the Highways Officer agrees to waive this period of notice). 26. In order for the Highways Officer to issue a Notice of Works the Developer must:

a. Obtain Reasonable Approval for: i. The detailed design of the Works; ii. The Specification; iii. The Programme; iv. The Construction Management Plan; v. The Traffic Management Plan; vi. The name of the Contractor; vii. Safety Audit 2; viii. Details of any diversion, alteration or interference with Statutory Undertaker’s Facilities. ix. A certificate evidencing Insurance; x. The situation of the Contractor’s site compound (if any); xi. Any other information SBC reasonably requires.

STATUTORY APPROVALS 27. The Developer will not start the Works unless and until it has obtained all necessary statutory consents and

approvals for the Works and the Developer must comply with those consents and approvals in carrying out the Works.

NOISE INSULATION 28. If SBC reasonably consider that any person may be eligible for the offer of insulation works or grant to cover the cost

of insulation works under the Noise Insulation Regulations 1975 (SI 1975/1763) to supply to SBC on request noise readings and other data that SBC reasonably require to establish that eligibility and indemnify SBC against such payments.

STATUTORY UNDERTAKERS FACILITIES. 29. If the Works affect, interfere with or require the diversion of Statutory Undertaker’s Facilities the Developer must:

a. Comply with the New Roads and Street Works Act 1991; b. Comply with the Traffic Management Act 2004; c. Consult with, place orders with and pay the costs of any consequential works required by the Statutory

Undertakers; d. Comply with the reasonable and lawful requirements of Statutory Undertakers; e. Give to SBC not less than 15 Working Days notice of the Developer’s intention to begin work on Statutory

Undertaker’s Facilities (unless SBC waive this period of notice); f. Comply with the reasonable and lawful requirements of SBC; g. Indemnify SBC against any claims from Statutory Undertakers on account of such matters.


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LAYING OF NEW CONDUITS 30. If the Works require the laying of any new conduits including connections from the conduits to the boundary of the

Site the Developer must at is own cost install: a. Those new conduits or connections before laying the foundations of the Works; b. Any connections from the electric cables before laying the paving of any footpaths.

CONTACT DETAILS 31. The Developer must appoint a person or persons to act as a point of contact for the Developer during the carrying out

of the Work and during the Maintenance Period and to provide SBC with the name, address, phone number and email address of that person or persons. To ensure that person (or persons) are available on an 24-hour basis in case of emergency and are authorised to make decisions for the Developer in case of emergency.

CDM 32. The Developer:

a. Elects to be the only client for the purposes of CDM and SBC consent to that election; b. Must:

i. Notify the Heath and Safety Executive (HSE) promptly of the Works in accordance with CDM; ii. Give SBC a copy of the notification to HSE and any acknowledgement from HSE promptly; iii. Perform the obligations of the client under CDM; iv. Carry out the Works in compliance with CDM; v. Indemnify SBC against any liability under CDM as far as the law allows.

c. Warrants that it has taken all reasonable steps to be satisfied that any Contractor (and all sub-contractors) (if applicable) are suitable and competent having regard to their responsibilities under CDM.

CARRYING OUT THE WORKS 33. The Developer must begin, carry out and complete the Works;

a. In a good and workmanlike manner; b. Using good quality materials; c. Using good construction practice; d. In compliance with relevant:

i. codes of practice; ii. British Standards;

e. To standards that accords with the Reasonable Approval issued by SBC that procured the Pre-Commencement Certificate.

TIMES OF WORK 34. The Highways Officer may (acting reasonably) instruct the Developer to carry out the Work only at specified times of

the day. If the Highways Officer so instruct then the Developer shall only carry out the Works at the times specified. TRAFFIC MANAGEMENT PLAN ETC.

35. In carrying out the Works the Developer must comply with: a. The Traffic Management Plan; b. Relevant Department of Transport guidance or directions; c. Directions from;

i. The Highways Officer in respect of lighting and signage of the Works and diversion routes; ii. The Police.

36. The Developer must, if requested by the Highways Officer: a. Remove any existing Street Furniture. b. Relocate or deliver them to SBC for storage as the Highways Officer directs.

COMPLETION DATES FOR WORKS 37. If the Developer starts the Works the Developer must:

a. Diligently proceed with them; b. Keep the Highways Officer reasonably informed as to progress of the Works; c. Allow the Highways Officer to inspect the Works; d. Use reasonable endeavours to achieve Practical Completion the Works by the Target Completion Date; e. To achieve Practical Completion in any event by the Ultimate Completion Date.

ISSUE OF PRACTICAL COMPLETION STATEMENT 38. As soon as the Developer considers that the Works are completed to the standard required to issue the Practical

Completion Statement the Developer must notify the Highways Officer in writing. 39. Within 10 Working Days of the notification that Practical Completion has occured the Highways Officer shall:

a. Inspect the Works; b. If there are Defects:

i. Supply the Developer with a definitive list of Defects; and ii. A statement of any Corrective Action required.

40. If the Highways Officer identifies any Corrective Action required the Developer must: a. Carry out the Corrective Action; b. Invite the Highways Officer to re-inspect the Works with a view to issuing the Practical Completion

Statement. 41. The procedure in the two preceding paragraphs may be repeated as occasion requires until there is no further

Corrective Action required. 42. The Highways Officer shall be entitled (at his/her sole discretion) to issue the Practical Completion Statement

notwithstanding the existence of a Defect on the condition that the Developer remedies the Defect as soon as reasonably practicable and during the Maintenance Period.

43. The Highways Officer shall not withhold a Practical Completion Statement unreasonably or unreasonably delay the issue of a Practical Completion Statement.


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44. If any corresponding Maintenance Period under any Sewer Adoption Agreement (‘the Sewer Maintenance Period’) has not begun to run:

a. the Highways Officer shall be entitled to suspend the issue of the Practical Completion Certificate until the date the Sewer Maintenance Period begins to run but not if:

b. The Sewer Maintenance Period is currently running or c. The Sewer Maintenance Period has expired.

45. The Highways Officer issues a Practical Completion Statement solely for the purpose of his/her duties under the HA80 and for the purposes of the S278 Agreement and for no other purpose.

46. From and including the date of issue of the Practical Completion Statement the Site (and the Works) shall be made available for use by the public for vehicles and pedestrians.

47. The Highways Officer shall be entitled to withhold a Practical Completion Statement for so long as any fees that are due to be paid by the Developer to SBC under the S278 Agreement remain unpaid.

RESPONSIBILITIES DURING THE MAINTENANCE PERIOD. 48. The Maintenance Period shall begin to run from and including the date the Practical Completion Statement is issued. 49. During the Maintenance Period the Developer must to the reasonable satisfaction of the Highways Officer:

a. Maintain: i. the Works; ii. any grassed and planted areas; iii. the Street Furniture.

b. Promptly make good any Defects; c. Undertake routine maintenance of the Site (such as sweeping and cleaning) to facilitate use of the Site by

the public; d. As regards the Street Furniture:

i. Maintain it; ii. Be responsible for energy costs and CRC Costs (if any).

SAFETY AUDIT 3 50. Before applying for a Final Certificate the Developer must:

a. Commission Safety Audit 3; b. Obtain Qualified Approval to Safety Audit 3; c. If Safety Audit 3 discloses any remedial action carry out that remedial action as soon as reasonably

practicable to the reasonable satisfaction of the Highways Officer. FINAL CERTIFICATE

51. The Developer must apply in writing to the Highways Officer to issue the Final Certificate promptly upon the expiry of the Maintenance Period.

52. Within 10 Working Days of the Developer’s application for a Final Certificate the Highways Officer shall: a. Inspect the Works; b. If there are Defects:


53. If the Highways Officer identifies any Corrective Action required the Developer must: a. Carry out the Corrective Action; b. Invite the Highways Officer to re-inspect the Works with a view to issuing the Final Certificate.

54. The procedure in the two preceding paragraphs may be repeated as occasion requires until there is no further Corrective Action required.

55. The Highways Officer shall be entitled (at his/her sole discretion) to issue the Final Certificate notwithstanding the existence of a Defect.

56. The Highways Officer shall not withhold a Final Certificate unreasonably or unreasonably delay the issue of a Final Certificate.

57. The Highways Officer shall be entitled to withhold issue of the Final Certificate if: a. Any corresponding Maintenance Period under any Sewer Adoption Agreement (‘the Sewer Maintenance

Period’) has not expired until the date the Sewer Maintenance Period actually expires; and/or b. Any other sum that the Developer is obliged to pay under this agreement has not been paid; c. The Developer has not delivered to the Highways Officer:

i. In hard copy form: 1. Six sets of coloured drawings to a scale of 1:500 showing the Works as constructed in

a format approved by the Highways Officer; 2. Six copies of the Health and Safety File; 3. Six copies of the final Health and Safety Plan;

ii. In electronic PDF form: 1. Copies of the above documents.

iii. Proof (in the form of a certificate issued by the sewer authority or other reasonable form) that the sewers that are the subject of the Sewer Adoption Agreement have been adopted by the sewer authority.

58. The Highways Officer issues a Final Certificate solely for the purpose of his/her duties under the HA80 and for the purposes of the S278 Agreement and for no other purpose.

EFFECT OF ISSUE OF THE FINAL CERTIFICATE. 59. From and including the date of issue of the Final Certificate the Works shall become part of the public highway

maintainable at public expense. MINOR CHANGES.

60. In these terms ‘Minor Changes’ means trivial or minor changes to the Works. 61. If the Developer wishes to make Minor Changes the Developer shall:


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a. Submit details of the Minor Changes to the Highways Officer; b. Obtain Reasonable Approval to the Minor Changes.

62. If the Highways Officer wishes to make Minor Changes the Highways Officer shall: a. Only suggest Minor Changes that are reasonable; b. Inform the Developer of the Minor Changes in a timely manner; in which case: c. The Developer shall incorporate the Minor Changes (which are reasonable and timely) into the Works.

63. Minor Changes that are approved or proposed by the Highways Officer under the preceding paragraphs shall be incorporated into the Works and reference to the Works shall be read and construed as incorporating the Minor Changes.

ACCESS TO THE WORKS 64. The Developer shall;

a. Allow (on reasonable request) access to the Works for the Highways Officer for the purpose of: i. Inspecting the Works; ii. Inspecting the materials used or to be used;

b. Give at least 5 Working Days notice to the Highways Officer when any works or foundations are about to be open for inspection;

c. Not cover up or obscure any part of the Works without the approval of the Highways Officer; d. Open up any part of the Works previously covered up without the approval of the Highways Officer; e. Comply with any reasonable direction of the Highways Officer following an inspection under the preceding

paragraph; f. Act in good faith to allow the Highways Officer to make a thorough inspection of the Works.

65. The Highways Officer shall comply with all reasonable health and safety directions when making an inspection. 66. If the Developer fails to comply with any of the instructions referred to in the preceding two paragraphs the Highways

Officer may: a. Take up or expose any part of the Works; or b. Carry out any other reasonable remedial action; and c. The Developer shall pay to SBC the reasonable and proper cost incurred by the Highways Officer in taking

such action. TESTING OF MATERIALS

67. If the Highways Officer requires that any materials used in the Works be tested the Developer shall: a. Arrange for the materials to be tested by a suitable independent expert reasonably approved by the

Highways Officer; b. Pay the cost of such testing; c. Provide the Highways Officer with a copy of any resultant expert’s report. d. Carrry out any remedial action revealed by the report.

CLEANLINESS OF HIGHWAY. 68. The Developer must keep free of mud, debris and other substances deposited during building operations all:

a. Highways; b. Footpaths; c. Any other nearby place where the public have access.

69. If the Developer fails to comply with the preceding paragraph SBC may: a. Remove, clean or clear the mud, debris or other substances; b. And recover the proper and reasonable cost from the Developer.

70. Upon completion of the Works the Developer shall remove all plant. Machinery, equipment and materials and leave the Highway Land and adjacent land in a clean, tidy and safe condition.

DELAYED COMPLETION DATE 71. If any delay in carrying out the Works occurs (‘Delay’) the following provisions apply:

a. If the cause of the Delay is attributable to the fault of SBC: i. The Target Completion Date and the Ultimate Completion Date shall be extended by a period

corresponding to the period of Delay attributable to SBC; ii. Except to the degree that the Delay is caused wholly or partly by the act or omission of the

Developer. b. If the cause of the Delay is circumstances beyond the reasonable control of the Developer;

i. The Developer may apply in writing to the Highways Officer explaining the cause of the Delay; ii. The Highways Officer (acting reasonably) may grant an extension to the Target Completion Date

corresponding to the period of the Delay; 72. Without prejudice to the preceding paragraph the Target Completion Date and/or the Ultimate Completion Date shall

not be extended unless: a. The Highways Officer consents to the extension in writing; and b. The Highways Officer retains absolute discretion whether or not to give such consent.

SUSPENSION OF THE WORKS 73. If the Developer wishes to suspend the construction of the Works the following provisions shall apply:

a. The Developer shall: i. Inform the Highways Officer in writing not less than 5 Working Days before the suspension; ii. Inform the Highways Officer in writing not less than 10 Working Days before re-commencing the

Works; iii. Unless the Highways Officer agrees to waive such periods of notice.

74. If the Developer fails to inform the Highways Officer of the Developer’s intention to suspend or re-commence the Works the Estimated Inspection Fee shall be increased by such amounts as the Highways Officer reasonably determines corresponds to any additional cost incurred in inspecting the Works attributable to such failure.


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75. The preceding two paragraphs shall not prejudice the general obligation of the Developer to proceed diligently with the Works and use reasonable endeavours to complete the Works by the Target Completion Date and in any event by the Ultimate Completion Date.

INDEMNITY 76. The Developer must indemnify SBC and the Highways Officer against any liability incurred or suffered by SBC for

Claims arising from: a. Breach by the Developer of the terms of the S278 Agreement; b. or any act or omission by the Developer in connection with the use of the Works; c. Including without limitation any negligent or defective design of the Works; d. And including (but not limited to):

i. Third party Claims for death, personal injury or damage to property; ii. Statutory or other liability for the safety or security of the working methods, employment

practices, protection of the environment or control of pollution; iii. Third party claims for unlawful interference with any rights of light, air, support, water, drainage or

any other easement or right; iv. Claims for compensation (if any) under:

1. The Noise Insulation Regulations 1975 (SI 1975/1763); or 2. Any other legislation relevant to the carrying out of the Works.

77. The preceding indemnity given by the Developer: a. Shall not apply to the extent that:

i. The law prohibits the indemnity from applying or ii. The Claim results from any act or omission of SBC.

b. Includes but is not limited to; i. Compensation payable to claimants; ii. Fees incurred by claimants that SBC are obliged to reimburse; iii. Fees incurred by SBC or their professional adviser in negotiating and settling such claims;

78. In conducting a Claim SBC must: a. Notify the Developer as soon as reasonably practicable after SBC become aware of a Claim; b. Keep the Developer reasonably informed; c. Have reasonable regard to the representations of the Developer; d. Not settle a Claim without the prior approval of the Developer (such approval not to be unreasonably

withheld or delayed) provided that: i. SBC’s insurers expressly agree; and ii. Where the Developer does not consent the Developer shall indemnify SBC against all further

costs in respect of litigating the matter and shall provide all reasonable assistance to SBC in defending or mitigating any Claim by providing witnesses and other evidence for any contentious issue.

e. The Developer must: i. Maintain Insurance at all material times; ii. Provide SBC with evidence of Insurance on request.

TERMINATION OF THIS AGREEMENT 79. SBC may terminate this agreement immediately by written notice to the Developer if the Developer;

a. Is in fundamental breach of his obligations under this agreement; or b. Is in breach of his obligations under this agreement and:

i. The breach concerned is material; ii. The Developer has been served with a Warning Notice and the Developer has failed to remedy

the breach within the time specified in the Warning Notice; or c. Is Insolvent.

80. Termination of this agreement under the preceding paragraph shall not prejudice any other rights that SBC may possess.

EXECUTION OF WORKS IN DEFAULT 81. If the Developer fails to carry out or complete the Works in accordance with the S278 Agreement the following

provisions apply: a. SBC may give to the Developer not less than 10 Working Days notice of SBC’s intention to carry out the

Works (or less notice if may be reasonable in the circumstances) or without notice if there is significant danger and;

b. SBC may carry out and complete the Works using its own personnel or by contractors or otherwise; and c. Recover on written demand the Costs of carrying out and completing the Works from:

i. The Developer; or ii. The Surety (if there is a Surety)(subject to the limitations on the liability of the Surety specified in

the S278 Agreement). DELEGATION OF WORKS TO A CONTRACTOR.

82. The Developer may delegate performance of the Works to the Contractor (or sub-contractors) on the following terms: a. The Developer shall remain liable for observance and performance of the S278 Agreement; b. The Building Contract by which performance of the Works is delegated shall contain:

i. In any event provisions no less stringent than those contained in the S278 Agreement; ii. A definition of the Works and methodology by which the Works are to be performed which are

the same as (or better than) those contained in the S278 Agreement; iii. Such other provisions as the Highways Officer reasonably requires to ensure performance of the

Works (but only if the Highways Officer requests such alterations).


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c. The Developer shall give the Highways Officer reasonably opportunity to inspect the Building Contract (but only if the Highways Officer requests such inspection) before execution of the Building Contract but the Building Contract shall contain obligations upon the Contractor to perform the Works that are no less stringent than those contained in the S278 Agreement (whether or not the Highways Officer chooses to inspect the Building Contract).

d. The Developer shall ensure that the minimum level of insurance cover required under the Building Contract for losses and claims for injuries and damage to persons or property because of the Works shall be of such minimum level as has Reasonable Approval provided that in any event (whether or not Reasonable Approval is sought or obtained) the minimum level of cover shall always be of reasonable amount having regard to the size and complexity of the Works.

ASSIGNMENT 83. The Developer may not assign the S278 Agreement without:

a. Obtaining Reasonable Approval; b. Procuring that the assignee enters into a direct covenant with SBC to observe and perform the terms of the

S278 Agreement. 84. The Developer may not assign part only of the S278 Agreement.

REGISTRATION AS LOCAL LAND CHARGE. 85. SBC shall register the S278 Agreement as a local land charge as soon as practicable after completion of the S278

Agreement. 86. Failure to register the S278 Agreement shall not affect the Developer’s obligations to observe and perform the S278

Agreement. LAPSE OF PLANNING PERMISSION.

87. If the Planning Permission is revoked, or is not implemented within the timescales prescribed by the Planning Permission so that it is no longer possible to implement and the Works are not implemented the following provisions shall apply:

a. The S278 Agreement shall lapse; and b. The Developer shall pay to SBC any Costs incurred by SBC properly attributable to actions carried out by

SBC under the S278 Agreement prior to the lapse of the S278 Agreement including the Legal Fee, the Design Check Fee and the inspection Fee.

SEVERANCE OF TERMS 88. If a Court finds any of the terms of the S278 Agreement invalid, void or unenforceable (‘the Deleted Parts’) the

following provisions shall apply: a. The Deleted Parts shall be omitted and the remainder of the S278 Agreement shall apply, but if; b. The part of the S278 Agreement that remains frustrates the parties original commercial intention the parties

shall negotiate in good faith with a view to amending the S278 Agreement to restore the parties original commercial intention as far as may be.

RESOLVING DISPUTES 89. If any dispute arises under the S278 Agreement (a ‘Dispute’) the Dispute shall be resolved in the following way;

a. The Dispute shall be referred to an arbitrator to be jointly appointed by the parties (‘the Arbitrator’); b. If the parties cannot agree the identity of the Arbitrator the Arbitrator shall be appointed at either party’s

request by the President for the time being of the Institute of Civil Engineers or the Royal Institute of Chartered Surveyors whichever institution is most appropriate having regard to the subject matter of the Dispute;

c. The Arbitrator shall in accordance with the Arbitration Act 1996; d. The costs of the arbitration shall be borne by the parties in proportions as the Arbitrator shall determine (or

if the Arbitrator makes no direction then equally). NOTICES

90. Any notice (or other communication) required to be given under the S278 Agreement shall be in writing and shall be delivered personally, or sent by pre-paid first class post, recorded delivery or commercial courier to each party required to receive the notice (or communication) at the address below:

a. For SBC: the Highways Officer at Magdalen House, 30 Trinity Road, Bootle, L20 3NJ or such other address as SBC may specify.

b. For the Developer: At the address for service for the Developer stated in the S278 Agreement or (if the Developer is a natural person) his last known address or if the Developer is a company at the registered office of the Developer (if different from the address stated in the S278 Agreement);

c. For the Surety (if a Surety is named in this Agreement): At the address for service for the Surety stated in the S278 Agreement or if the Surety is a company at the registered office of the Surety (if different from the address stated in the S278 Agreement); or

d. At such other address as the relevant party may specify in writing to the other parties from time to time. 91. Any notice (or other communication) shall be deemed to have been duly received:

a. If delivered personally when left at the relevant address for the party concerned; or b. If sent by pre-paid first class post or recorded delivery by 9.00 am on the second Working Day after the

date of posting; or c. If sent by commercial courier one hour after the date and time that the courier’s delivery receipt is signed.

92. A notice (or other communication) shall not be validly given by email unless the party to whom the email is addressed expressly agrees to accept service of that specific notice (or communication) by email, to waive the normal methods of service prescribed by the preceding two paragraphs and acknowledges receipt of the notice (or communication) by email in reply in which case the notice (or communication) shall be deemed to be served at the date and time of transmission of the email sent in reply.

93. The provisions of the S278 Agreement regarding service of notices do not apply to the service of notices or other documents in any legal action.


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THIRD PARTY RIGHTS 94. The Contract (Rights of Third Parties) Act 1999 do not apply to the S278 Agreement.

GOVERNING LAW 95. Only English law governs the S278 Agreement.

VALUE ADDED TAX 96. All sums of money referred to in the S278 Agreement are exclusive of VAT and are liable to the addition of VAT to

the extent required by law. SECTION 4A

(Provisions which apply only if a Surety is party to this Agreement)

97. The provisions of this Section 4A only apply if a Surety is named in the S278 Agreement. 98. If SBC invoke the provisions of this Section 4A against the Surety that shall not prejudice any other right, claim or

remedy available to SBC to enforce the terms of the S278 Agreement. 99. If a Default Event occurs SBC may serve a Default Notice on the Surety. 100. The Default Notice shall contain:

a. Specify the Default Work; b. Specify:

i. The Default Works Period; and ii. the date when the Default Works Period is to begin.

c. Contain an estimate by the Highways Officer of the cost of carrying out the Default Work (‘the Default Cost’).

101. Within 10 Working Days of receipt of the Default Notice the Surety shall: a. Pay to SBC the Default Cost to SBC; or b. Serve the Surety’s Counter-Notice on SBC.

102. If the Surety serves the Surety’s Counter-Notice the Surety shall; a. Start the Default Works promptly; b. Diligently proceed with the Default Works; and c. Complete the Default Works within the Default Works Period.

103. The maximum amount of the Default Cost that the Surety is obliged to pay to SBC shall be: a. The Estimated Works Cost; or b. After the PC Date the Estimated Maintenance Cost.

104. If the Surety does not Complete the Default Works within the Default Works Period (or fails to begin them on the date the Default Works Period is set to begin) then the Surety shall pay to SBC such sum as the Highways Officer (acting reasonably) determines to be the Cost of:

i. Carrying out the Default Work that the Surety has failed to carry out; and ii. The Cost of maintaining the Works for the Maintenance Period; and iii. The usual establishment charges of SBC provided; iv. The total sum claimed must not exceed the Estimated Sum; or v. After the Practical Completion Statement is issued the sum claimed must not exceed the

Estimated Maintenance Sum. 105. Following the issue of a Final Certificate (or payment by the Surety of the Default Cost) the Surety is released from

liability under the S278 Agreement. 106. SBC covenant with the Surety;

a. To use money received from the Surety to secure the performance of the Developer’s obligations under the S278 Agreement including SBC’s establishment charges;

b. If money paid by the Surety exceeds the actual cost incurred by SBC of securing performance of the Developer’s obligations under the S278 Agreement including SBC’s establishment charges to refund any excess to the Surety within 20 Working Days of the issue of the Final Certificate or the date the actual cost is established (if later).

SECTION 4B (Provisions which apply if the Developer provides a Cash Sum instead of a Surety)

107. The provisions of this Section 4B apply if no Surety is named in the S278 Agreement. 108. If SBC invoke the provisions of this Section 4B against the Developer that shall not prejudice any other right, claim or

remedy available to SBC to enforce the terms of the S278 Agreement. 109. On or before the date of the S278 Agreement the Developer must lodge with SBC in cleared funds the sum set out in

the next paragraph which such shall be called ‘the Cash Sum’. 110. The ‘Cash Sum’ shall be:

a. Such sum as the Highways Officer and the Developer agree shall represent the Cash Sum; provided that; b. The amount of the Cash Sum shall not be deemed to be agreed unless and until the amount of the Cash

Sum is recorded in writing within the body of S278 Agreement or by way of written memorandum to the S278 Agreement by or on behalf of the Developer and on behalf of SBC by the Head of Corporate Legal Services (whose address is Ground Floor, Magdalen House, 30 Trinity Road, Bootle, L20 3NJ; or

c. If the amount of the Cash Sum is not so agreed then the Cash Sum shall be deemed to be (by default) an amount equivalent to the Estimated Works Cost.

111. The Developer must not commence the Works before the Cash Sum is paid to SBC in cleared funds. 112. If a Default Event occurs SBC may:

a. Exercise its right to carry out the Default Works specified in paragraph 81 of this schedule (‘Execution of Works in Default’);

b. Use the Cash Sum to defray the cost of: i. Carrying out the Default Works; and/or


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ii. Maintaining the Works for the Maintenance Period; and/or iii. Paying the usual establishment charges of SBC.

113. If the Cash Sum exceeds the actual cost of funding the matters referred to in the preceding paragraph (when those costs are established) SBC shall refund any excess of the Cash Sum to the Developer within 20 Working Days of the issue of the Final Certificate (or the date that the actual cost is established, if later).

114. If SBC use the Cash Sum SBC covenant with the Developer to apply it to securing the performance of the Developer’s obligations under the S278 Agreement and any expenses incurred by SBC as a consequence of the Developer failing to perform his obligations under the S278 Agreement including SBC’s establishment charges;

115. If the Practical Completion Statement is issued and SBC have not used the Cash Sum SBC shall retain part of the Cash Sum equivalent to the amount of the Estimated Maintenance Cost but shall refund to the Developer the balance of the Cash Sum within 10 Working Days of the date of the Practical Completion Statement,

116. If the Final Certificate is issued and SBC have not used the balance of the Cash Sum SBC shall refund to the Developer the balance of the Cash Sum within 10 Working Days of the date of issue of the Practical Completion Statement.

SCENARIO 2

Council to Design: Council to Construct. SCHEDULE OF TERMS

PURPOSE OF THIS SCHEDULE 1. This schedule forms part of the S278 Agreement to which it is annexed. 2. The schedule is designed for use in the following scenario:

a. SBC designs the Works; b. SBC constructs the Works.

3. This schedule is divided into four parts: a. Part 1: which defines certain terms and contains rules for interpretation of this agreement b. Part 2: which sets out the background to this agreement c. Part 3: which contains the operative provisions of this agreement. d. Part 4: which concerns funding of the Works.

SECTION 1 (Definitions and Interpretation)

4. In these terms the expressions listed in the table below have the meanings assigned to them unless the context in

which they are used indicates a different intention. Additional Design Fee. : Means the reasonable and proper Costs incurred by SBC for making

any subsequent alterations to the design of the Works or additional work by SBC for approving the design of the Works not covered by the Design Fee.








Design Fee. : Means any figure specified in the S278 Agreement which represents the ‘Design Fee’ but if no figure is specified then ‘Design Fee’ means the reasonable and proper Costs incurred by SBC for designing the Works submitted by the Developer including the cost of any technical advice that is required before any feature or structure of the Works is proposed or approved.



Works.


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Estimated Works Cost. : Means the estimated cost of carrying out the Works as specified in the S278 Agreement or if no ‘Estimated Works Cost’ is specified in the S278 Agreement or if no cost is specified ‘the Estimated Works Cost’ means a reasonable and proper estimate made by the Highways Officer of the cost of carrying out the Works.



HA80. : Means the Highways Act 1980. Highways Officer. : Means a suitably qualified officer or agent of SBC appointed by SBC to












Maintenance Period. : [USE SAME DEFINITION AS SCENARIO 1] Notice of Works. : Means a written statement issued by the Highways Officer to the effect

that he/she is satisfied that the Works may commence in accordance with paragraph 22 of this schedule.



Practical Completion Statement : Means a written statement by the Highways Officer to the effect that he/she is satisfied that Practical Completion has been achieved.

Programme. : Means the programme for the carrying out the Works prepared by the Highways Officer showing the sequence in which the Works are to be carried out and an estimate of the time in which each stage of the Works will be carried out.



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Safety Audit 2. : Means an audit report under the Safety Guidance into road safety aspects of the detailed design of the Works to be carried out before commencement of the Works.

Safety Audit 3. : Means an audit report under the Safety Guidance into road safety aspects of the completed Works to be carried out before the PC Date.









Target Completion Date. : Means the date by which the Developer must achieve Practical Completion of the Works being the date twelve months from the date of the S278 Agreement or such other date as the Highways Officer may agree in writing.










and all other legal powers available to SBC to enter into the S278 Agreement and shall be enforced by SBC accordingly without prejudice to any other means of enforcing the S278 Agreement available to SBC.

9. The Developer intends to carry out the Development in accordance with the Planning Permission.


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10. SBC have agreed (at the request of the Developer) to design and construct the Works in accordance with the S278 Agreement.

11. SBC are satisfied the Works benefit the public. SECTION THREE




Agreement. DESIGNING AND DOING THE WORKS

14. SBC must; : a. Design, construct and complete the Works with reasonable care and skill in accordance with the terms of

the S278 Agreement. b. Obtain the Developer’s reasonable prior approval to the design of the Works before starting the Works. c. Having started the Works;

i. Diligently proceed with them; ii. Use reasonable endeavours to achieve Practical Completion by the Target Completion Date.



i. the Design Fee; ii. the Inspection Fee; iii. the Additional Design Fee; iv. the Additional Inspection Fee; v. the reasonable and proper cost incurred by SBC in obtaining any Traffic Regulation Order; vi. All legal, administrative and construction costs incurred by SBC regarding any amendments




part of the Works) and other relevant information. 17. SBC will (by way of indemnity to the Developer):-:

a. not unreasonably interfere with the flow of traffic on existing highways; b. Only interfere with the flow of traffic on existing highways if authorised (and only to the extent authorised)

by a Traffic Regulation Order; c. Install Advance Warning Signs where SBC advise where reasonable to do so. .

18. SBC will (on request by the Developer) use reasonable endeavours to obtain any necessary Traffic Regulation Order as soon as practicable subject to the Developer paying the legal, administrative and construction costs incurred by SBC regarding any amendments required to existing Traffic Regulation Orders arising as a consequence of the Works In dealing with the Traffic Regulation Order SBC:

19. In dealing with the making of the Traffic Regulation Order SBC; a. Will disregard the S278 Agreement; b. Owe no duty to the Developer by reason only of the S278 Agreement; c. Resolve or determine objections in a reasonable and lawful way; d. Act impartially according to its duties as highway authority; e. If there are no objections and SBC resolve to make the Traffic Regulation Order complete the statutory


20. If in order to carry out the Works SBC require entry upon any land owned or controlled by the Developer within the Site or adjacent to the Site the Developer gives SBC licence to enter on that land to facilitate the Works.

21. The licence given to SBC in the previous paragraph includes any workers, machinery, materials and equipment necessary to do the Works.

NOTICE OF WORKS 22. SBC will not be obliged to start the Works before the Highways Officer issues a Notice of Works. 23. In order for the Highways Officer to issue a Notice of Works the Highways Officer (acting reasonably) must be

satisfied that the following are in place, are not required by the Highways Officer, or (if required) are reasonably satisfactory to the Highways Officer:

a. The detailed design of the Works; b. The Specification; c. The Programme; d. The Construction Management Plan; e. The Traffic Management Plan; f. Safety Audit 2; g. Details of any diversion, alteration or interference with Statutory Undertaker’s Facilities.

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24. SBC shall not be obliged to start the Works unless and until the Developer has obtained all necessary statutory consents and approvals for the Works and the Works are consistent with the consents.


of insulation works under the Noise Insulation Regulations 1975 (SI 1975/1763) the Developer will supply (or allow SBC to procure at the Developer’s expense) noise readings and other reasonable to establish that eligibility and to indemnify SBC against such claims.

STATUTORY UNDERTAKERS FACILITIES. 26. If the Works affect, interfere with or require the diversion of Statutory Undertaker’s Facilities SBC will:


Undertakers; d. Comply with the reasonable and lawful requirements of Statutory Undertakers;


Highway Land the Developer must at is own cost install (or engage SBC at the Developer’s expense to install): a. Those new conduits or connections before laying the foundations of the Works; b. Any connections from the electric cables before laying the paving of any footpaths.

CONTACT DETAILS 28. The Developer and SBC must each appoint a person or persons to act as a point of contact for the Developer during

the carrying out of the Work and during the Maintenance Period and to provide the other with the name, address, phone number and email address of that person or persons. In the case of the Developer: the Developer must ensure that person (or persons) are available on an 24-hour basis in case of emergency and are authorised to make decisions for the Developer in case of emergency.

CDM 29. SBC shall comply with the Construction (Design and Management) Regulations 2007 (SI 2007/320).

CARRYING OUT THE WORKS 30. SBC must carry and complete the Works;



TIMES OF WORK 31. The Highways Officer may (acting reasonably) determine the times of day at which the Works shall be carried out.

TRAFFIC MANAGEMENT PLAN ETC. 32. In carrying out the Works SBC will comply with:

a. The Traffic Management Plan; b. Relevant Department of Transport guidance or directions; c. Police directions.

33. SBC may: a. Remove any existing Street Furniture. b. Relocate them for storage as the Highways Officer directs.

COMPLETION DATES FOR WORKS 34. If SBC start the Works SBC must:

a. Diligently proceed with them; b. Keep the Developer reasonably informed as to progress of the Works; c. Use reasonable endeavours to achieve Practical Completion the Works by the Target Completion Date;

ISSUE OF PRACTICAL COMPLETION STATEMENT 35. As soon as SBC considers that the Works are completed to the standard required to issue the Practical Completion

Statement SBC will notify the Developer in writing. 36. Within 10 Working Days of the date that Practical Completion occurs the Highways Officer shall :

a. Inspect the Works; b. If there are Defects and the Highways Officer identifies any Corrective Action;

i. Carry out the Corrective Action; ii. Cause the Highways Officer to re-inspect the Works with a view to issuing the Practical

Completion Statement. 37. The procedure in the two preceding paragraphs operate without prejudice the general obligation of SBC to use

reasonable skill and care in carrying out the Works. 38. The Highways Officer shall be entitled (at his/her sole discretion) to issue the Practical Completion Statement

notwithstanding the existence of a Defect on the understanding that SBC will remedy the Defect as soon as reasonably practicable and during the Maintenance Period or that SBC will accept the Works for adoption notwithstanding the Defect.




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STATUTORY APPROVALS


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RESPONSIBILITIES DURING THE MAINTENANCE PERIOD. 44. The Maintenance Period shall begin to run from and including the date the Practical Completion Statement is issued. 45. The Highways Officer may (acting reasonably) waive (or reduce) the Maintenance Period at his/her discretion. 46. During the Maintenance Period SBC shall:

a. Maintain: i. the Works; ii. the Street Furniture.

b. Make good any Defects; SAFETY AUDIT 3

47. Before issue of the Final Certificate SBC shall: a. Commission Safety Audit 3; b. If Safety Audit 3 discloses any remedial action carry out that remedial action as soon as reasonably

practicable. FINAL CERTIFICATE

48. Subject to the next paragraph: SBC will issue the Final Certificate promptly upon the expiry of the Maintenance Period.

49. Not less that 10 Working Days before the proposed issue of the Final Certificate the Highways Officer shall: a. Inspect the Works; b. Identify any Defects and Corrective Action:

50. If the Highways Officer identifies any Corrective Action SBC shall: a. Carry out the Corrective Action; b. Invite the Highways Officer to re-inspect the Works with a view to issuing the Final Certificate.

51. The procedure in the two preceding paragraphs shall not prejudice the general obligation of SBC to use reasonably skill and care in maintaining the Works during the Maintenance Period.




Period’) has not expired until the date the Sewer Maintenance Period actually expires; and/or b. Any other sum that the Developer is obliged to pay under this agreement has not been paid;






59. If the Highways Officer wishes to make Minor Changes the Highways Officer shall: a. Only suggest Minor Changes that are reasonable; b. Inform the Developer of the Minor Changes; c. Incorporate the Minor Changes into the Works.

60. Minor Changes that are approved or proposed under the preceding paragraphs shall be incorporated into the Works and reference to the Works shall be read and construed as incorporating the Minor Changes.


a. Insofar as SBC require access onto any adjacent land of the Developer allow (on request) access to the adjacent land for SBC for the purpose of:

i. Inspecting or facilitating the Works; ii. Inspecting the materials used or to be used;

62. The Highways Officer shall comply with all reasonable health and safety directions when making an inspection. TESTING OF MATERIALS

63. If the Highways Officer requires that any materials used in the Works be tested SBC will arrange for them to be tested and carry out any remedial action revealed by the testing.

CLEANLINESS OF HIGHWAY. 64. SBC shall keep the Site reasonably free of mud, debris and other substances deposited during the Works. 65. Upon completion of the Works SBC shall remove all plant. Machinery, equipment and materials and leave the Site in

a clean, tidy and safe condition. D


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66. If any delay in carrying out the Works occurs (‘Delay’) and the cause of the Delay is attributable to for reasons beyond the reasonable control of SBC the Target Completion Date shall be extended by a reasonable period to reflect the Delay

INDEMNITY 67. SBC will indemnify SBC against any liability incurred or suffered by the Developer for Claims arising from:

a. Any negligent or defective design or construction by SBC of the Works; b. And including (but not limited to):

i. Third party Claims for death, personal injury or damage to property; ii. Statutory or other liability for the safety or security of the working methods or employment

practices. iii. But not claims for compensation (if any) under:

1. Claims in relation to other parts of the Development (not involving Works to the highway that are the subject of this agreement); or

2. The Noise Insulation Regulations 1975 (SI 1975/1763). 68. The preceding indemnity given by SBC:

a. Shall not apply to the extent that: i. The law prohibits the indemnity from applying or ii. The Claim results from any act or omission of the Developer.

69. If the Developer becomes aware of any Claim the Developer must: a. Notify the Highways Officer as soon as reasonably practicable after the Developer become aware of a

Claim; b. Keep the Highways Officer reasonably informed; c. Have reasonable regard to the representations of SBC; d. Not settle a Claim without the prior approval of SBC (such approval not to be unreasonably withheld or

delayed); and e. Provide all reasonable assistance to SBC in defending or mitigating any Claim by providing witnesses and

other evidence for any contentious issue. TERMINATION OF THIS AGREEMENT

1. [SAME TEXT AS SCENARIO 1] ASSIGNMENT

1. [SAME TEXT AS SCENARIO 1] REGISTRATION AS LOCAL LAND CHARGE.

1. [SAME TEXT AS SCENARIO 1] LAPSE OF PLANNING PERMISSION.

1. [SAME TEXT AS SCENARIO 1] SEVERANCE OF TERMS

1. [SAME TEXT AS SCENARIO 1] RESOLVING DISPUTES

1. [SAME TEXT AS SCENARIO 1] NOTICES

2. [SAME TEXT AS SCENARIO 1] THIRD PARTY RIGHTS

3. The Contract (Rights of Third Parties) Act 1999 do not apply to the S278 Agreement. GOVERNING LAW

4. Only English law governs the S278 Agreement. VALUE ADDED TAX

5. All sums referred to in the S278 Agreement are exclusive of value added tax under the Value Added Tax Act 1994 (VAT) and arfe liable to the addition of VAT (if payable) subject to receipt of a VAT invoice therefor.

SECTION 4 (Cash Sum)

6. On or before the date of the S278 Agreement the Developer must lodge with SBC in cleared funds the sum set out in


a. Such sum as the Highways Officer and the Developer agree shall represent the Cash Sum; provided that; b. The amount of the Cash Sum shall not be deemed to be agreed unless and until the amount of the Cash


c. If the amount of the Cash Sum is not so agreed then the Cash Sum shall be deemed to be (by default) an amount equivalent to the Estimated Works Cost.

8. SBC shall not be obliged to commence the Works; a. Before the

i. the Cash Sum is paid to SBC in cleared funds; or ii. Any other fee that the Developer is obliged to pay under the S278 Agreement before

commencement of the Works is paid. 9. SBC may apply the Cash Sum towards:

a. Carrying out the Works; and /or b. The discharge of any obligation or responsibility of SBC arising under, or connected with this S278

Agreement.

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4 From and including the date of issue of the Practical Completion Statement the Site (and the Works) shall be made a

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DELAYED COMPLETION DATE


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10. As soon as reasonably practicable SBC shall; a. Determine the actual cost of carrying out the Works (‘the Actual Cost’); and b. Notify the Developer in writing of;

i. the Actual Cost, and; ii. Reasonable supporting information to verify the Actual Cost.

11. If the Actual Cost exceeds the Cash Sum the Developer shall on demand pay to SBC the difference between the Actual Cost and the Cash Sum within fourteen days of written demand.

END OF SCHEDULE

SCENARIO 3 Council to Design: Developer to Construct.

SCHEDULE OF TERMS PURPOSE OF THIS SCHEDULE

1. This schedule forms part of the S278 Agreement to which it is annexed. 2. The schedule is designed for use in the following scenario:

a. SBC designs the Works; b. The Developer builds the Works.

3. This schedule is divided into four parts: a. Part 1: which defines certain terms and contains rules for interpretation of this agreement b. Part 2: which sets out the background to this agreement c. Part 3: which contains the operative provisions of this agreement. d. Part 4A: which contains provisions that apply to a Surety if a Surety is named as a party to the S278

Agreement; e. Part 4B: which contains provisions that apply to a Surety if a Surety is not named as a party to the S278

Agreement; SECTION 1

(Definitions and Interpretation)

4. In these terms the expressions listed in the table below have the meanings assigned to them unless the context in which they are used indicates a different intention.

Additional Design Fee. : Means the reasonable and proper Costs incurred by SBC for making any subsequent alterations to the design of the Works or additional work by SBC for approving the design of the Works not covered by the Design Fee.


Building Contract. : Means (if the Developer appoints a Contractor) any contract between the Developer and the Contractor for the carrying out of the Works

CDM. : Means the Construction (Design and Management) Regulations 2007 (SI 2007/320).



Contractor. : Means any contractor appointed by the Developer to carry out the Works.




Default Cost. : Means the estimated cost of carrying out the Default Works as specified in the Default Notice.

Default Event. : Means any of the following events: • The Developer is in fundamental breach of the S278

Agreement; • The Developer is in breach of the Developer’s obligations

under the S278 Agreement and has failed to remedy that breach within a reasonable time of receiving written notice to rectify the breach from SBC;

• The Developer is Insolvent.


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Default Notice. : Means (if Section 4A applies) the notice served by SBC on the Surety under paragraph 100 of this schedule.

Default Work. : Means any work that the Developer fails to carry out that the S278 Agreement requires the Developer to carry out and which is specified by the Highways Officer in the Default Notice.

Default Works Period. : Means a period set by the Highways Officer (acting reasonably) and specified in the Default Notice for completion of the Default Work not being less than 20 Working Days.


Design Fee. : Means any figure specified in the S278 Agreement which represents the ‘Design Fee’ but if no figure is specified then ‘Design Fee’ means the reasonable and proper Costs incurred by SBC for approving the details of the Works submitted by the Developer including the cost of any technical advice that is required before any feature or structure of the Works is proposed or approved.




S278 Agreement or if no ‘Estimated Works Cost’ is specified in the S278 Agreement or if no cost is specified ‘the Estimated Works Cost’ means a reasonable and proper estimate made by the Highways Officer of the cost of carrying out the Works.



HA80. : Means the Highways Act 1980. Health and Safety File. : Means the file or other permanent records containing the information

required by CDM. Health and Safety Plan. : Means the plan that contains the pre-construction information and the

construction phase both as defined in CDM. Highways Officer. : Means a suitably qualified officer or agent of SBC appointed by SBC to










Insurance. : Means effective insurance by the Developer (evidenced by a certificate) against public liabilities of a level of cover of not less than


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£10m per incident or such other level of cover as the Highways Officer consents to in writing.



Maintenance Period. : Means the period of twelve months from and including the PC Date or such lesser period as the Highways Officer may agree in writing [NB: the Highways Engineer will normally agree to reduce this to 12 months for the south of Sefton Borough] .





Programme. : Means the programme for the carrying out the Works prepared by the Developer and agreed from time to time by the Highways Officer showing the sequence in which the Works are to be carried out and an estimate of the time in which each stage of the Works will be carried out.














Surety Counter Notice. : Means (if Section 4A of this schedule applies) a notice service by the Surety upon SBC under paragraph 102 of this schedule that the Surety wishes to carry out the Default Works


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Surety. : Means any Surety that is named in the S278 Agreement. Target Completion Date. : Means the date by which the Developer must achieve Practical

Completion of the Works being the date twelve months from the date of the S278 Agreement or such other date as the Highways Officer may agree in writing.




Ultimate Completion Date. : Means the date six months after the expiry of the Target Completion Date or such other date as the Highways Officer may agree in writing.


Warning Notice. : Means a written notice served by SBC on the Developer specifying a material breach of the terms of the S278 Agreement, the steps the Developer must carry out to rectify the breach and a reasonable period (not exceeding one month) in which the Developer must take the steps to rectify the breach.






and all other legal powers available to SBC to enter into the S278 Agreement. and shall be enforced by SBC accordingly without prejudice to any other means of enforcing the S278 Agreement available to SBC.

9. The Developer intends to carry out the Development in accordance with the Planning Permission. 10. SBC has (at the request and cost of the Developer) agree to design the Works and the Developer has agreed to

construct the Works in accordance with the S278 Agreement. 11. SBC are satisfied the Works benefit the public. 12. The Surety (if a party to the S278 Agreement) has agreed to join in the S278 Agreement to guarantee performance of

the Developer’s obligations. SECTION THREE




Agreement. 15. If the Developer undertakes the Works through the medium of the Contractor the Developer nevertheless remains

primarily responsible to SBC for performance of the Developer’s obligations under the S278 Agreement. DESIGNING THE WORKS

16. SBC must a. Design the Works in accordance with the terms of the S278 Agreement. b. Obtain the Developer’s reasonable prior written approval to the design of the Works before the Developer

starts the Works. c. Use reasonable care and skill in designing the Works.

DOING THE WORKS 17. The Developer must:

a. Construct and complete the Works in accordance with the terms of the S278 Agreement. b. Having started the Works;

i. Diligently proceed with them; ii. Use reasonable endeavours to achieve Practical Completion by the Target Completion Date; iii. In any event achieve Practical Completion by the Ultimate Completion Date.


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i. the Design Fee; ii. the Inspection Fee; iii. the Additional Inspection Fee (if applicable); iv. the Additional Design Fee (if applicable); v. the reasonable and proper cost incurred by SBC in obtaining any Traffic Regulation Order; vi. All legal, administrative and construction costs incurred by SBC regarding any amendments

required to existing Traffic Regulation Orders arising as a consequence of the Works. c. If a sum due to be paid by the Developer to SBC under the S278 Agreement is not paid on the date it ought

to be paid interest upon that sum from the date it is due to be paid until it is actually paid (before and after any judgment) at the rate of 2% above the current base rate of National Westminster Bank PLC.


part of the Works) and other relevant information. 20. The Developer must:

a. not interfere with the flow of traffic on existing highways without permission from SBC; b. Only interfere with the flow of traffic on existing highways if authorised (and only to the extent authorised) by

a Traffic Regulation Order; c. Install Advance Warning Signs where SBC advise to SBC’s reasonable satisfaction.

21. SBC will (on request by the Developer) use reasonable endeavours to obtain any necessary Traffic Regulation Order as soon as practicable.

22. In dealing with the Traffic Regulation Order SBC: a. Will disregard the S278 Agreement; b. Owe no duty to the Developer by reason only of the S278 Agreement; c. Resolve or determine objections in a reasonable and lawful way; d. Act impartially according to its duties as highway authority; e. If there are no objections and SBC resolve to make the Traffic Regulation Order complete the statutory


23. SBC give the Developer licence to enter on the Site to do the Works. 24. The licence given to Developer to enter on the Site includes any workers, machinery, materials and equipment

necessary to do the Works. 25. SBC allows the Developer to break open the surface of the Site to do the Works provided the Developer makes good

any damage. NOTICE OF WORKS

26. The Developer must not start the Works: a. before the Highways Officer issues a Notice of Works. b. without giving SBC at least 21 Working Days notice from the date the Notice of Works is issued of the

Developer’s intention to start the Works (unless the Highways Officer agrees to waive this period of notice). 27. In order for the Highways Officer to issue a Notice of Works the Developer must:

a. Obtain Reasonable Approval for: i. The detailed design of the Works; ii. The Specification; iii. The Programme; iv. The Construction Management Plan; v. The Traffic Management Plan; vi. The name of the Contractor; vii. Safety Audit 2; viii. Details of any diversion, alteration or interference with Statutory Undertaker’s Facilities. ix. A certificate evidencing Insurance; x. The situation of the Contractor’s site compound (if any); xi. Any other information SBC reasonably requires.

STATUTORY APPROVALS 28. The Developer will not start the Works unless and until it has obtained all necessary statutory consents and

approvals for the Works and the Developer must comply with those consents and approvals in carrying out the Works.


of insulation works under the Noise Insulation Regulations 1975 (SI 1975/1763) to supply to SBC on request noise readings and other data that SBC reasonably require to establish that eligibility.

STATUTORY UNDERTAKERS FACILITIES. 30. If the Works affect, interfere with or require the diversion of Statutory Undertaker’s Facilities the Developer must:




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e. Give to SBC not less than 15 Working Days notice of the Developer’s intention to begin work on Statutory Undertaker’s Facilities (unless SBC waive this period of notice);

f. Comply with the reasonable and lawful requirements of SBC; g. Indemnify SBC against any claims from Statutory Undertakers on account of such matters.


Highway Land the Developer must at is own cost install: a. Those new conduits or connections before laying the foundations of the Works; b. Any connections from the electric cables before laying the paving of any footpaths.

CONTACT DETAILS 32. The Developer must appoint a person or persons to act as a point of contact for the Developer during the carrying out

of the Work and during the Maintenance Period and to provide SBC with the name, address, phone number and email address of that person or persons. To ensure that person (or persons) are available on an 24-hour basis in case of emergency and are authorised to make decisions for the Developer in case of emergency.

CDM 33. The Developer:

a. Elects to be the only client for the purposes of CDM and SBC consent to that election; b. Must:

i. Notify the Heath and Safety Executive (HSE) promptly of the Works in accordance with CDM; ii. Give SBC a copy of the notification to HSE and any acknowledgement from HSE promptly; iii. Perform the obligations of the client under CDM; iv. Carry out the Works in compliance with CDM; v. Indemnify SBC against any liability under CDM as far as the law allows.

c. Warrants that it has taken all reasonable steps to be satisfied that any Contractor (and all sub-contractors) (if applicable) are suitable and competent having regard to their responsibilities under CDM.

CARRYING OUT THE WORKS 34. The Developer must begin, carry out and complete the Works;



e. To standards that accords with the Reasonable Approval issued by SBC that procured the Pre-Commencement Certificate.

TIMES OF WORK 35. The Highways Officer may (acting reasonably) instruct the Developer to carry out the Work only at specified times of

the day. If SBC so instruct then the Developer shall only carry out the Works at the times specified. TRAFFIC MANAGEMENT PLAN ETC.

36. In carrying out the Works the Developer must comply with: a. The Traffic Management Plan; b. Relevant Department of Transport guidance or directions; c. Directions from;

i. The Highways Officer in respect of lighting and signage of the Works and diversion routes; ii. The Police.

37. The Developer must, if requested by the Highways Officer: a. Remove any existing Street Furniture. b. Relocate or deliver them to SBC for storage as the Highways Officer directs.

COMPLETION DATES FOR WORKS 38. If the Developer starts the Works the Developer must:

a. Diligently proceed with them; b. Keep the Highways Officer reasonably informed as to progress of the Works; c. Allow the Highways Officer to inspect the Works; d. Use reasonable endeavours to achieve Practical Completion the Works by the Target Completion Date; e. To achieve Practical Completion in any event by the Ultimate Completion Date.

ISSUE OF PRACTICAL COMPLETION STATEMENT 39. As soon as the Developer considers that the Works are completed to the standard required to issue the Practical

Completion Statement the Developer must notify the Highways Officer in writing. 40. Within 10 Working Days of the notification that Practical Completion has occured the Highways Officer shall:

a. Inspect the Works; b. If there are Defects:


41. If the Highways Officer identifies any Corrective Action required the Developer must: a. Carry out the Corrective Action; b. Invite the Highways Officer to re-inspect the Works with a view to issuing the Practical Completion

Statement. 42. The procedure in the two preceding paragraphs may be repeated as occasion requires until there is no further

Corrective Action required.


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43. The Highways Officer shall be entitled (at his/her sole discretion) to issue the Practical Completion Statement notwithstanding the existence of a Defect on the condition that the Developer remedies the Defect as soon as reasonably practicable and during the Maintenance Period.








RESPONSIBILITIES DURING THE MAINTENANCE PERIOD. 49. The Maintenance Period shall begin to run from and including the date the Practical Completion Statement is issued. 50. During the Maintenance Period the Developer must to the reasonable satisfaction of the Highways Officer:

a. Maintain: i. the Works; ii. any grassed and planted areas; iii. the Street Furniture.

b. Promptly make good any Defects; c. Undertake routine maintenance of the Site (such as sweeping and cleaning) to facilitate use of the Site by

the public; d. As regards the Street Furniture:

i. Maintain it; ii. Be responsible for energy costs and CRC Costs (if any).

SAFETY AUDIT 3 51. Before applying for a Final Certificate the Developer must:

a. Commission Safety Audit 3; b. Obtain Qualified Approval to Safety Audit 3; c. If Safety Audit 3 discloses any remedial action carry out that remedial action as soon as reasonably

practicable to the reasonable satisfaction of the Highways Officer. FINAL CERTIFICATE

52. The Developer must apply in writing to the Highways Officer to issue the Final Certificate promptly upon the expiry of the Maintenance Period.

53. Within 10 Working Days of the Developer’s application for a Final Certificate the Highways Officer shall: a. Inspect the Works; b. If there are Defects:


54. If the Highways Officer identifies any Corrective Action required the Developer must: a. Carry out the Corrective Action; b. Invite the Highways Officer to re-inspect the Works with a view to issuing the Final Certificate.

55. The procedure in the two preceding paragraphs may be repeated as occasion requires until there is no further Corrective Action required.




Period’) has not expired until the date the Sewer Maintenance Period actually expires; and/or b. Any other sum that the Developer is obliged to pay under this agreement has not been paid; c. The Developer has not delivered to the Highways Officer:

i. In hard copy form: 1. Six sets of coloured drawings to a scale of 1:500 showing the Works as constructed in

a format approved by the Highways Officer; 2. Six copies of the Health and Safety File; 3. Six copies of the final Health and Safety Plan;

ii. In electronic PDF form: 1. Copies of the above documents.

iii. Proof (in the form of a certificate issued by the sewer authority or other reasonable form) that the sewers that are the subject of the Sewer Adoption Agreement have been adopted by the sewer authority.


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60. From and including the date of issue of the Final Certificate the Works shall become part of the public highway maintainable at public expense.

MINOR CHANGES. 61. In these terms ‘Minor Changes’ means trivial or minor changes to the Works. 62. If the Developer wishes to make Minor Changes the Developer shall:


63. If the Highways Officer wishes to make Minor Changes the Highways Officer shall: a. Only suggest Minor Changes that are reasonable; b. Inform the Developer of the Minor Changes in a timely manner; in which case: c. The Developer shall incorporate the Minor Changes (which are reasonable and timely) into the Works.

64. Minor Changes that are approved or proposed by the Highways Officer under the preceding paragraphs shall be incorporated into the Works and reference to the Works shall be read and construed as incorporating the Minor Changes.


a. Allow (on reasonable request) access to the Works for the Highways Officer for the purpose of: i. Inspecting the Works; ii. Inspecting the materials used or to be used;

b. Give at least 5 Working Days notice to the Highways Officer when any works or foundations are about to be open for inspection;

c. Not cover up or obscure any part of the Works without the approval of the Highways Officer; d. Open up any part of the Works previously covered up without the approval of the Highways Officer; e. Comply with any reasonable direction of the Highways Officer following an inspection under the preceding

paragraph; f. Act in good faith to allow the Highways Officer to make a thorough inspection of the Works.

66. The Highways Officer shall comply with all reasonable health and safety directions when making an inspection. 67. If the Developer fails to comply with any of the instructions referred to in the preceding two paragraphs the Highways

Officer may: a. Take up or expose any part of the Works; or b. Carry out any other reasonable remedial action; and c. The Developer shall pay to SBC the reasonable and proper cost incurred by the Highways Officer in taking

such action. TESTING OF MATERIALS

68. If the Highways Officer requires that any materials used in the Works be tested the Developer shall: a. Arrange for the materials to be tested by a suitable independent expert reasonably approved by the

Highways Officer; b. Pay the cost of such testing; c. Provide the Highways Officer with a copy of any resultant expert’s report. d. Carrry out any remedial action revealed by the report.

CLEANLINESS OF HIGHWAY. 69. To keep free of mud, debris and other substances deposited during building operations all:

a. Highways; b. Footpaths; c. Any other nearby place where the public have access.

70. If the Developer fails to comply with the preceding paragraph SBC may: a. Remove, clean or clear the mud, debris or other substances; b. And recover the proper and reasonable cost from the Developer.

71. Upon completion of the Works the Developer shall remove all plant. Machinery, equipment and materials and leave the Highway Land and adjacent land in a clean, tidy and safe condition.

DELAYED COMPLETION DATE 72. If any delay in carrying out the Works occurs (‘Delay’) the following provisions apply:

a. If the cause of the Delay is attributable to the fault of SBC: i. The Target Completion Date and the Ultimate Completion Date shall be extended by a period

corresponding to the period of Delay attributable to SBC; ii. Except to the degree that the Delay is caused wholly or partly by the act or omission of the

Developer. b. If the cause of the Delay is circumstances beyond the reasonable control of the Developer;

i. The Developer may apply in writing to the Highways Officer explaining the cause of the Delay; ii. The Highways Officer (acting reasonably) may grant an extension to the Target Completion Date

corresponding to the period of the Delay; 73. Without prejudice to the preceding paragraph the Target Completion Date and/or the Ultimate Completion Date shall

not be extended unless: a. The Highways Officer consents to the extension in writing; and b. The Highways Officer retains absolute discretion whether or not to give such consent.

SUSPENSION OF THE WORKS 74. If the Developer wishes to suspend the construction of the Works the following provisions shall apply:

a. The Developer shall: i. Inform the Highways Officer in writing not less than 5 Working Days before the suspension; ii. Inform the Highways Officer in writing not less than 10 Working Days before re-commencing the

Works;

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a the Highways Officer shall be entitled to suspend the issue of the Practical Completion Certificate until the

d b

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4 From and including the date of issue of the Practical Completion Statement the Site (and the Works) shall be made

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b c routine maintenance of the Site (such as sweeping and cleaning) to facilitate use of the Site by

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2 3 Six copies of the final Health and Safety Plan;

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EFFECT OF ISSUE OF THE FINAL CERTIFICATE.


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iii. Unless the Highways Officer agrees to waive such periods of notice. 75. If the Developer fails to inform the Highways Officer of the Developer’s intention to suspend or re-commence the

Works the Estimated Inspection Fee shall be increased by such amounts as the Highways Officer reasonably determines corresponds to any additional cost incurred in inspecting the Works attributable to such failure.

76. The preceding two paragraphs shall not prejudice the general obligation of the Developer to proceed diligently with the Works and use reasonable endeavours to complete the Works by the Target Completion Date and in any event by the Ultimate Completion Date.

INDEMNITY 77. The Developer must indemnify SBC and the Highways Officer against any liability incurred or suffered by SBC for

Claims arising from: a. Breach by the Developer of the terms of the S278 Agreement; b. or any time in connection with the use of the Works; c. Including without limitation any negligent or defective design of the Works; d. And including (but not limited to):

i. Third party Claims for death, personal injury or damage to property; ii. Statutory or other liability for the safety or security of the working methods, employment

practices, protection of the environment or control of pollution; iii. Third party claims for unlawful interference with any rights of light, air, support, water, drainage or

any other easement or right; iv. Claims for compensation (if any) under:

1. The Noise Insulation Regulations 1975 (SI 1975/1763); or 2. Any other legislation relevant to the carrying out of the Works.

78. The preceding indemnity given by the Developer: a. Shall not apply to the extent that:

i. The law prohibits the indemnity from applying or ii. The Claim results from any act or omission of SBC.

b. Includes but is not limited to; i. Compensation payable to claimants; ii. Fees incurred by claimants that SBC are obliged to reimburse; iii. Fees incurred by SBC or their professional adviser in negotiating and settling such claims;

79. In conducting a Claim SBC must: a. Notify the Developer as soon as reasonably practicable after SBC become aware of a Claim; b. Keep the Developer reasonably informed; c. Have reasonable regard to the representations of the Developer; d. Not settle a Claim without the prior approval of the Developer (such approval not to be unreasonably

withheld or delayed) provided that: i. SBC’s insurers expressly agree; and ii. Where the Developer does not consent the Developer shall indemnify SBC against all further

costs in respect of litigating the matter and shall provide all reasonable assistance to SBC in defending or mitigating any Claim by providing witnesses and other evidence for any contentious issue.

e. The Developer must: i. Maintain Insurance at all material times; ii. Provide SBC with evidence of Insurance on request.

TERMINATION OF THIS AGREEMENT 80. SBC may terminate this agreement immediately by written notice to the Developer if the Developer;

a. Is in fundamental breach of his obligations under this agreement; or b. Is in breach of his obligations under this agreement and:

i. The breach concerned is material; ii. The Developer has been served with a Warning Notice and the Developer has failed to remedy

the breach within the time specified in the Warning Notice; or c. Is Insolvent.

81. Termination of this agreement under the preceding paragraph shall not prejudice any other rights that SBC may possess.

EXECUTION OF WORKS IN DEFAULT 82. If the Developer fails to carry out or complete the Works in accordance with the S278 Agreement the following

provisions apply: a. SBC may give to the Developer not less than 10 Working Days notice of SBC’s intention to carry out the

Works (or less notice if may be reasonable in the circumstances) or without notice if there is significant danger and;

b. SBC may carry out and complete the Works using its own personnel or by contractors or otherwise; and c. Recover on written demand the Costs of carrying out and completing the Works from:

i. The Developer; or ii. The Surety (if there is a Surety)(subject to the limitations on the liability of the Surety specified in

the S278 Agreement). DELEGATION OF WORKS TO A CONTRACTOR.

83. The Developer may delegate performance of the Works to the Contractor (or sub-contractors) on the following terms: a. The Developer shall remain liable for observance and performance of the S278 Agreement; b. The Building Contract by which performance of the Works is delegated shall contain:

i. In any event provisions no less stringent than those contained in the S278 Agreement;


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ii. A definition of the Works and methodology by which the Works are to be performed which are the same as (or better than) those contained in the S278 Agreement;

iii. Such other provisions as the Highways Officer reasonably requires to ensure performance of the Works (but only if the Highways Officer requests such alterations).

c. The Developer shall give the Highways Officer reasonably opportunity to inspect the Building Contract (but only if the Highways Officer requests such inspection) before execution of the Building Contract but the Building Contract shall contain obligations upon the Contractor to perform the Works that are no less stringent than those contained in the S278 Agreement (whether or not the Highways Officer chooses to inspect the Building Contract).

d. The Developer shall ensure that the minimum level of insurance cover required under the Building Contract for losses and claims for injuries and damage to persons or property because of the Works shall be of such minimum level as has Reasonable Approval provided that in any event (whether or not Reasonable Approval is sought or obtained) the minimum level of cover shall always be of reasonable amount having regard to the size and complexity of the Works.

ASSIGNMENT 84. [SAME TEXT AS SCENARIO 1]

REGISTRATION AS LOCAL LAND CHARGE. 85. [SAME TEXT AS SCENARIO 1]

LAPSE OF PLANNING PERMISSION. 86. [SAME TEXT AS SCENARIO 1]

SEVERANCE OF TERMS 87. [SAME TEXT AS SCENARIO 1].

RESOLVING DISPUTES 88. [SAME TEXT AS SCENARIO 1]

NOTICES 89. [SAME TEXT AS SCENARIO 1]

THIRD PARTY RIGHTS 90. The Contract (Rights of Third Parties) Act 1999 do not apply to the S278 Agreement.

GOVERNING LAW 91. Only English law governs the S278 Agreement.

VALUE ADDED TAX 92. All sums of money referred to in the S278 Agreement are exclusive of VAT and are liable to the addition of VAT to

the extent required by law. SECTION 4A

(Provisions which apply only if a Surety is party to this Agreement)

93. The provisions of this Section 4A only apply if a Surety is named in the S278 Agreement. 94. If SBC invoke the provisions of this Section 4A against the Surety that shall not prejudice any other right, claim or

remedy available to SBC to enforce the terms of the S278 Agreement. 95. If a Default Event occurs SBC may serve a Default Notice on the Surety. 96. The Default Notice shall contain:

a. Specify the Default Work; b. Specify:

i. The Default Works Period; and ii. the date when the Default Works Period is to begin.

c. Contain an estimate by the Highways Officer of the cost of carrying out the Default Work (‘the Default Cost’).

97. Within 10 Working Days of receipt of the Default Notice the Surety shall: a. Pay to SBC the Default Cost to SBC; or b. Serve the Surety’s Counter-Notice on SBC.

98. If the Surety serves the Surety’s Counter-Notice the Surety shall; a. Start the Default Works promptly; b. Diligently proceed with the Default Works; and c. Complete the Default Works within the Default Works Period.

99. The maximum amount of the Default Cost that the Surety is obliged to pay to SBC shall be: a. The Estimated Works Cost; or b. After the PC Date the Estimated Maintenance Cost.

100. If the Surety does not Complete the Default Works within the Default Works Period (or fails to begin them on the date the Default Works Period is set to begin) then the Surety shall pay to SBC such sum as the Highways Officer (acting reasonably) determines to be the Cost of:

i. Carrying out the Default Work that the Surety has failed to carry out; and ii. The Cost of maintaining the Works for the Maintenance Period; and iii. The usual establishment charges of SBC provided; iv. The total sum claimed must not exceed the Estimated Sum; or v. After the Practical Completion Statement is issued the sum claimed must not exceed the

Estimated Maintenance Sum. . 101. Following the issue of a Final Certificate (or payment by the Surety of the Default Cost) the Surety is released from

liability under the S278 Agreement. 102. SBC covenant with the Surety;

a. To use money received from the Surety to secure the performance of the Developer’s obligations under the S278 Agreement including SBC’s establishment charges;


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b. If money paid by the Surety exceeds the actual cost incurred by SBC of securing performance of the Developer’s obligations under the S278 Agreement including SBC’s establishment charges to refund any excess to the Surety within 20 Working Days of the issue of the Final Certificate or the date the actual cost is established (if later).

SECTION 4B (Provisions which apply if the Developer provides a Cash Sum instead of a Surety)

103. The provisions of this Section 4B apply if no Surety is named in the S278 Agreement. 104. If SBC invoke the provisions of this Section 4B against the Developer that shall not prejudice any other right, claim or

remedy available to SBC to enforce the terms of the S278 Agreement. 105. On or before the date of the S278 Agreement the Developer must lodge with SBC in cleared funds the sum set out in


a. Such sum as the Highways Officer and the Developer agree shall represent the Cash Sum; provided that b. The amount of the Cash Sum shall not be deemed to be agreed unless and until the amount of the Cash


c. If the amount of the Cash Sum is not agreed then the Cash Sum shall be deemed to be (by default) an amount equivalent to the Estimated Works Cost.

107. The Developer must not begin the construction of the Works before the Cash Sum is paid to SBC in cleared funds. 108. If a Default Event occurs SBC may:

a. Exercise its right to carry out the Default Works specified in paragraph 81 of this schedule (‘Execution of Works in Default’);

b. Use the Cash Sum to defray the cost of: i. Carrying out the Default Works; and/or ii. Maintaining the Works for the Maintenance Period; and/or iii. Paying the usual establishment charges of SBC.

109. If the Cash Sum exceeds the actual cost of funding the matters referred to in the preceding paragraph (when those costs are established) SBC shall refund any excess of the Cash Sum to the Developer within 20 Working Days of the issue of the Final Certificate (or the date that the actual cost is established, if later).

110. If SBC use the Cash Sum SBC covenant with the Developer to apply it to securing the performance of the Developer’s obligations under the S278 Agreement and any expenses incurred by SBC as a consequence of the Developer failing to perform his obligations under the S278 Agreement including SBC’s establishment charges;

111. If the Practical Completion Statement is issued and SBC have not used the Cash Sum SBC shall retain part of the Cash Sum equivalent to the amount of the Estimated Maintenance Cost but shall refund to the Developer the balance of the Cash Sum within 10 Working Days of the date of the Practical Completion Statement,

112. If the Final Certificate is issued and SBC have not used the balance of the Cash Sum SBC shall refund to the Developer the balance of the Cash Sum within 10 Working Days of the date of issue of the Practical Completion Statement.

END OF SCHEDULE

SCENARIO 4 Developer to Design: Council to Construct.

SCHEDULE OF TERMS PURPOSE OF THIS SCHEDULE

1. This schedule forms part of the S278 Agreement to which it is annexed. 2. The schedule is designed for use in the following scenario:

a. The Developer designs the Works; b. SBC constructs the Works.

3. This schedule is divided into four parts: a. Part 1: which defines certain terms and contains rules for interpretation of this agreement b. Part 2: which sets out the background to this agreement c. Part 3: which contains the operative provisions of this agreement. d. Part 4: which concerns funding of the Works.

SECTION 1 (Definitions and Interpretation)

4. In these terms the expressions listed in the table below have the meanings assigned to them unless the context in

which they are used indicates a different intention. Additional Design Check Fee. : Means the reasonable and proper Costs incurred by SBC for

approving any subsequent alterations to the design of the Works or additional work by SBC for approving the design of the Works not covered by the Design Check Fee.



processes to be employed in carrying out the Works and a signing strategy that sufficiently demonstrates that the safety of highway users


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and workers will be ensured at all times. Corrective Action. : Means any remedial works identified and specified by the Highways

Officer that are required to achieve Practical Completion or the securing of Safety Report 3 or the issue of the Final Certificate (as the case may be).




Design Check Fee. : Means any figure specified in the S278 Agreement which represents the ‘Design Check Fee’ but if no figure is specified then ‘Design Check Fee’ means the reasonable and proper Costs incurred by SBC for approving the details of the Works submitted by the Developer including the cost of any technical advice that is required before any feature or structure of the Works is proposed or approved.




S278 Agreement or if no ‘Estimated Works Cost’ is specified in the S278 Agreement or if no cost is specified ‘the Estimated Works Cost’ means a reasonable and proper estimate made by the Highways Officer of the cost of carrying out the Works.



HA80. : Means the Highways Act 1980. Highways Officer. : Means a suitably qualified officer or agent of SBC appointed by SBC to











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Maintenance Period. : Means the period of twelve months from and including the PC Date or such lesser period as the Highways Officer may specify in writing.





Programme. : Means the programme for the carrying out the Works prepared by the Highways Officer showing the sequence in which the Works are to be carried out and an estimate of the time in which each stage of the Works will be carried out.

Reasonable Approval. : Means a written approval of the Highway Officer obtained in advance of the thing for which approval is sought and which approval is subject to a qualification that the approval must not be unreasonably withheld or delayed.













Target Completion Date. : Means the date by which the Developer must achieve Practical Completion of the Works being the date twelve months from the date of the S278 Agreement or such other date as the Highways Officer may agree in writing.


and controls to be implemented at the Developer’s expense during the Works (accounting for the Traffic Management Act 2004) including


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time restrictions, routes for heavy goods vehicles, parking and temporary pedestrian routes, details of any Traffic Regulation Order and temporary diversions to ensure the best possible traffic flows are maintained on the highway during the Works.








and all other legal powers available to SBC to enter into the S278 Agreement and shall be enforced by SBC accordingly without prejudice to any other means of enforcing the S278 Agreement available to SBC.

9. The Developer intends to carry out the Development in accordance with the Planning Permission. 10. SBC have agreed (at the request of the Developer) to design and construct the Works in accordance with the S278

Agreement. 11. SBC are satisfied the Works benefit the public.

SECTION THREE (Operative Provisions)

COVENANTS.

12. The Developer covenants with SBC to observe and perform all of the Developer’s obligations contained in the S278 Agreement.

13. SBC covenants with the Developer to observe and perform all of SBC’s obligations contained in the S278 Agreement.

DESIGNING AND DOING THE WORKS 14. The Developer must;

a. Design the Works with reasonable care and skill in accordance with the terms of the S278 Agreement. b. Obtain the Highway Officer’s reasonable prior approval to the design of the Works before starting the

Works. 15. SBC must with reasonable care and skill:

a. Construct and complete the Works in accordance with the terms of the S278 Agreement. b. Having started the Works;

i. Diligently proceed with them; ii. Use reasonable endeavours to achieve Practical Completion by the Target Completion Date.

PAYMENTS

16. The Developer must pay to SBC: a. The Legal Fee Today. b. On demand by the Highways Officer:

i. the Design Check Fee; ii. the Inspection Fee; iii. the Additional Design Check Fee; iv. the Additional Inspection Fee; v. the reasonable and proper cost incurred by SBC in obtaining any Traffic Regulation Order; vi. All legal, administrative and construction costs incurred by SBC regarding any amendments




part of the Works) and other relevant information. 18. SBC will (by way of indemnity to the Developer); - :

a. not unreasonably interfere with the flow of traffic on existing highways; b. Only interfere with the flow of traffic on existing highways if authorised (and only to the extent authorised)

by a Traffic Regulation Order; c. Install Advance Warning Signs where SBC advise where reasonable to do so. .


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19. SBC will (on request by the Developer) use reasonable endeavours to obtain any necessary Traffic Regulation Order as soon as practicable subject to the Developer paying the legal, administrative and construction costs incurred by SBC regarding any amendments required to existing Traffic Regulation Orders arising as a consequence of the Works In dealing with the Traffic Regulation Order SBC:

20. In dealing with the Traffic Regulation Order SBC; a. Will disregard the S278 Agreement; b. Owe no duty to the Developer by reason only of the S278 Agreement; c. Resolve or determine objections in a reasonable and lawful way; d. Act impartially according to its duties as highway authority; e. If there are no objections and SBC resolve to make the Traffic Regulation Order complete the statutory


21. If in order to carry out the Works SBC require entry upon any land owned or controlled by the Developer within the Site or adjacent to the Site the Developer gives SBC licence to enter on that land to facilitate the Works.

22. The licence given to SBC in the previous paragraph includes any workers, machinery, materials and equipment necessary to do the Works.

NOTICE OF WORKS 23. SBC will not be obliged to start the Works before the Highways Officer issues a Notice of Works. 24. In order for the Highways Officer to issue a Notice of Works the Highways Officer (acting reasonably) must be

satisfied that the following are in place, are not required by the Highways Officer, or (if required) are reasonably satisfactory to the Highways Officer:

a. The detailed design of the Works; b. The Specification; c. The Programme; d. The Construction Management Plan; e. The Traffic Management Plan; f. Safety Audit 2; g. Details of any diversion, alteration or interference with Statutory Undertaker’s Facilities.

STATUTORY APPROVALS 25. SBC shall not be obliged to start the Works unless and until the Developer has obtained all necessary statutory

consents and approvals for the Works and the Works are consistent with the consents. NOISE INSULATION

26. If SBC reasonably consider that any person may be eligible for the offer of insulation works or grant to cover the cost of insulation works under the Noise Insulation Regulations 1975 (SI 1975/1763) the Developer will supply (or allow SBC to procure at the Developer’s expense) noise readings and other reasonable to establish that eligibility and to indemnify SBC against such claims.

STATUTORY UNDERTAKERS FACILITIES. 27. If the Works affect, interfere with or require the diversion of Statutory Undertaker’s Facilities SBC will:




Highway Land the Developer must at is own cost install (or engage SBC at the Developer’s expense to install): a. Those new conduits or connections before laying the foundations of the Works; b. Any connections from the electric cables before laying the paving of any footpaths.

CONTACT DETAILS 29. The Developer and SBC must each appoint a person or persons to act as a point of contact for the Developer during

the carrying out of the Work and during the Maintenance Period and to provide the other with the name, address, phone number and email address of that person or persons. In the case of the Developer: the Developer must ensure that person (or persons) are available on an 24-hour basis in case of emergency and are authorised to make decisions for the Developer in case of emergency.

CDM 30. SBC shall comply with the Construction (Design and Management) Regulations 2007 (SI 2007/320).

CARRYING OUT THE WORKS 31. SBC must carry and complete the Works;



TIMES OF WORK 32. The Highways Officer may (acting reasonably) determine the times of day at which the Works shall be carried out.

TRAFFIC MANAGEMENT PLAN ETC. 33. In carrying out the Works SBC will comply with:

a. The Traffic Management Plan; b. Relevant Department of Transport guidance or directions; c. Police directions.


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34. SBC may: a. Remove any existing Street Furniture. b. Relocate them for storage as the Highways Officer directs.

COMPLETION DATES FOR WORKS 35. If SBC start the Works SBC must:

a. Diligently proceed with them; b. Keep the Developer reasonably informed as to progress of the Works; c. Use reasonable endeavours to achieve Practical Completion the Works by the Target Completion Date;

ISSUE OF PRACTICAL COMPLETION STATEMENT 36. As soon as SBC considers that the Works are completed to the standard required to issue the Practical Completion

Statement SBC will notify the Developer in writing. 37. Within 10 Working Days of the date that Practical Completion occurs the Highways Officer shall :

a. Inspect the Works; b. If there are Defects and the Highways Officer identifies any Corrective Action;

i. Carry out the Corrective Action; ii. Cause the Highways Officer to re-inspect the Works with a view to issuing the Practical

Completion Statement. 38. The procedure in the two preceding paragraphs operate without prejudice the general obligation of SBC to use

reasonable skill and care in carrying out the Works. 39. The Highways Officer shall be entitled (at his/her sole discretion) to issue the Practical Completion Statement

notwithstanding the existence of a Defect on the understanding that SBC will remedy the Defect as soon as reasonably practicable and during the Maintenance Period or that SBC will accept the Works for adoption notwithstanding the Defect.








RESPONSIBILITIES DURING THE MAINTENANCE PERIOD. 45. The Maintenance Period shall begin to run from and including the date the Practical Completion Statement is issued. 46. The Highways Officer may (acting reasonably) waive (or reduce) the Maintenance Period at his/her discretion. 47. During the Maintenance Period SBC shall:

a. Maintain: i. the Works; ii. the Street Furniture.

b. Make good any Defects; SAFETY AUDIT 3

48. Before issue of the Final Certificate SBC shall: a. Commission Safety Audit 3; b. If Safety Audit 3 discloses any remedial action carry out that remedial action as soon as reasonably

practicable. FINAL CERTIFICATE

49. Subject to the next paragraph: SBC will issue the Final Certificate promptly upon the expiry of the Maintenance Period.

50. Not less that 10 Working Days before the proposed issue of the Final Certificate the Highways Officer shall: a. Inspect the Works; b. Identify any Defects and Corrective Action:

51. If the Highways Officer identifies any Corrective Action SBC shall: a. Carry out the Corrective Action; b. Invite the Highways Officer to re-inspect the Works with a view to issuing the Final Certificate.

52. The procedure in the two preceding paragraphs shall not prejudice the general obligation of SBC to use reasonably skill and care in maintaining the Works during the Maintenance Period.




Period’) has not expired until the date the Sewer Maintenance Period actually expires; and/or b. Any other sum that the Developer is obliged to pay under this agreement has not been paid;



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60. If the Highways Officer wishes to make Minor Changes the Highways Officer shall: a. Only suggest Minor Changes that are reasonable; b. Inform the Developer of the Minor Changes; c. Incorporate the Minor Changes into the Works.

61. Minor Changes that are approved or proposed under the preceding paragraphs shall be incorporated into the Works and reference to the Works shall be read and construed as incorporating the Minor Changes.


a. Insofar as SBC require access onto any adjacent land of the Developer allow (on request) access to the adjacent land for SBC for the purpose of:

i. Inspecting or facilitating the Works; ii. Inspecting the materials used or to be used;

63. The Highways Officer shall comply with all reasonable health and safety directions when making an inspection. TESTING OF MATERIALS

64. If the Highways Officer requires that any materials used in the Works be tested SBC will arrange for them to be tested and carry out any remedial action revealed by the testing.

CLEANLINESS OF HIGHWAY. 65. SBC shall keep the Site reasonably free of mud, debris and other substances deposited during the Works. 66. Upon completion of the Works SBC shall remove all plant. Machinery, equipment and materials and leave the Site in

a clean, tidy and safe condition. DELAYED COMPLETION DATE

67. If any delay in carrying out the Works occurs (‘Delay’) and the cause of the Delay is attributable to for reasons beyond the reasonable control of SBC the Target Completion Date shall be extended by a reasonable period to reflect the Delay

INDEMNITY 68. SBC will indemnify SBC against any liability incurred or suffered by the Developer for Claims arising from:

a. Any negligent or defective design or construction by SBC of the Works; b. And including (but not limited to):

i. Third party Claims for death, personal injury or damage to property; ii. Statutory or other liability for the safety or security of the working methods or employment

practices. iii. But not claims for compensation (if any) under:

1. Claims in relation to other parts of the Development (not involving Works to the highway that are the subject of this agreement); or

2. The Noise Insulation Regulations 1975 (SI 1975/1763). 69. The preceding indemnity given by SBC:

a. Shall not apply to the extent that: i. The law prohibits the indemnity from applying or ii. The Claim results from any act or omission of the Developer.

70. If the Developer becomes aware of any Claim the Developer must: a. Notify the Highways Officer as soon as reasonably practicable after the Developer become aware of a

Claim; b. Keep the Highways Officer reasonably informed; c. Have reasonable regard to the representations of SBC; d. Not settle a Claim without the prior approval of SBC (such approval not to be unreasonably withheld or

delayed); and e. Provide all reasonable assistance to SBC in defending or mitigating any Claim by providing witnesses and

other evidence for any contentious issue. TERMINATION OF THIS AGREEMENT

71. [SAME TEXT AS SCENARIO 1] ASSIGNMENT

72. [SAME TEXT AS SCENARIO 1] . REGISTRATION AS LOCAL LAND CHARGE.

73. [SAME TEXT AS SCENARIO 1] LAPSE OF PLANNING PERMISSION.

74. [SAME TEXT AS SCENARIO 1] SEVERANCE OF TERMS

75. [SAME TEXT AS SCENARIO 1] RESOLVING DISPUTES

76. [SAME TEXT AS SCENARIO 1] NOTICES

77. [SAME TEXT AS SCENARIO 1] . THIRD PARTY RIGHTS


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78. The Contract (Rights of Third Parties) Act 1999 do not apply to the S278 Agreement. GOVERNING LAW

79. Only English law governs the S278 Agreement. VALUE ADDED TAX

80. All sums referred to in the S278 Agreement are exclusive of value added tax under the Value Added Tax Act 1994 (VAT) and arfe liable to the addition of VAT (if payable) subject to receipt of a VAT invoice therefor.

SECTION 4 (Cash Sum)

81. On or before the date of the S278 Agreement the Developer must lodge with SBC in cleared funds the sum set out in


a. Such sum as the Highways Officer and the Developer agree shall represent the Cash Sum; provided that b. The amount of the Cash Sum shall not be deemed to be agreed unless and until the amount of the Cash


c. If the amount of the Cash Sum is not agreed then the Cash Sum shall be deemed to be (by default) an amount equivalent to the Estimated Works Cost.

83. SBC shall not be obliged to commence the Works; a. Before the

i. the Cash Sum is paid to SBC in cleared funds; or ii. Any other fee that the Developer is obliged to pay under the S278 Agreement before

commencement of the Works is paid. 84. SBC may apply the Cash Sum towards:

a. Carrying out the Works; and /or b. The discharge of any obligation or responsibility of SBC arising under, or connected with this S278

Agreement. 85. As soon as reasonably practicable SBC shall;

a. Determine the actual cost of carrying out the Works (‘the Actual Cost’); and b. Notify the Developer in writing of;

i. the Actual Cost, and; ii. Reasonable supporting information to verify the Actual Cost.

86. If the Actual Cost exceeds the Cash Sum the Developer shall on demand pay to SBC the difference between the Actual Cost and the Cash Sum within fourteen days of written demand.

END OF DOCUMENT
