Paragraph 71 Retained apparatus and alternative apparatus: protection
Before commencing the execution of any restricted works, the undertaker must submit to Exolum a plan of the works to be executed and any other information that Exolum may reasonably require to allow Exolum to assess the works.
No restricted works are to be commenced until the plan to be submitted to Exolum under sub-paragraph (1) has been approved by Exolum in writing (acting reasonably) and Exolum shall provide confirmation as to whether or not the plan is approved within 56 days from the date the plan was received by Exolum and are to be carried out only in accordance with the details submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be notified to the undertaker in writing in accordance with sub-paragraph (3) by Exolum.
Any approval of Exolum in respect of restricted works may be given subject to such reasonable requirements as Exolum may require to be made for—
the continuing safety and operational viability of any apparatus and premises;
the requirement for Exolum to have reasonable access with or without vehicles to inspect, repair, replace, maintain and ensure the continuing safety and operation or viability of any apparatus and/or premises; and
the requirement for Exolum to be entitled to watch and inspect the execution of restricted works to ensure the continuing safety and operational viability of any apparatus and ensure compliance with the agreed plan, providing such reasonable requirements shall be notified to the undertaker in writing.
Where reasonably required by either party, in view of the complexity of any proposed works, timescales, phasing or costs, the parties must with due diligence and good faith negotiate a works agreement for the carrying out of protective works or the installation of alternative apparatus.
If in consequence of the works notified to Exolum by the undertaker under sub-paragraph (1), the circumstances in paragraph 69 apply, then the parties must follow the procedure in paragraph 69 onwards.
Nothing in sub-paragraphs (1) to (5) precludes the undertaker from submitting prior to the commencement of works to protect retained apparatus or to construct alternative apparatus (unless otherwise agreed in writing between the undertaker and Exolum) a new plan, instead of the plan previously submitted, in which case the parties must re-run the procedure from sub-paragraph (1) onwards.
Where Exolum reasonably requires protective works, the parties must use their reasonable endeavours to produce a plan of the work proposed and a plan of the proposed position of any physical features to be provided or constructed.
The undertaker must afford to Exolum the necessary facilities and rights for the construction of protective works and subsequently the grant of additional rights in accordance with paragraph 70.
Any protective works are to be constructed in land owned by the undertaker or in land in respect of which additional rights have been or are guaranteed to be granted to Exolum. The protective works must be constructed in such manner and in such line or situation as may be agreed between Exolum and the undertaker or in default of agreement settled by arbitration in accordance with article 38 (arbitration).
After the details for the protective works to be provided or constructed have been agreed or settled in accordance with article 38 (arbitration), and after the grant to Exolum of any such facilities and rights as are referred to in paragraph 69(3), Exolum must proceed as soon as reasonably practicable using all reasonable endeavours to construct and bring into operation the protective works.