NSF2 Asset Purchase Agreement

1 July 2016 Version

Dated 2016

NETWORK RAIL INFRASTRUCTURE LIMITED

and

[DELIVERY AGENT]

NSF2 ASSET PURCHASE AGREEMENT

in connection with

the New Stations Fund2

for the Project at 

THIS AGREEMENT is made on 2016

BETWEEN

(1)NETWORK RAIL INFRASTRUCTURE LIMITED registered in England and Wales as company number 2904587 and having its registered office at 1 Eversholt Street, London, NW1 2DN (“Network Rail”); and

(2)[] of [] (the“Delivery Agent”)

Each separately referred to as the “Party” and together referred to as the "Parties”.

WHEREAS:

(A)The NSF2 Awards Panel has identified the Project as qualifying for funding by theNSF2Awards Panel against the NSF2FundingCriteria.

(B)This Agreement sets out the terms upon which NSF2 funding will be made available to the Delivery Agent by Network Rail as the Administrator of the NSF2 Awards Panel.

(C)The use of NSF2 funding is subject to theNSF2 Steering Group’s verification of the Deliverables in accordance with the Specification and agreed costs.

(D)The Delivery Agentis responsible for the implementation and financing of the Project.

(E)[insert prospective SFO name] has agreed to be the Station Facility Owner and is also a Beneficiary of the Project.

(F)[insert relevant TOC names] is/are the train operating company[ies] who have agreed to provide the train services calling at the Station and who is/are also a Beneficiary

(G)Network Rail will carry out the roles of Administrator of the Capped NSF2 Funding and, following purchase of any Deliverables, Asset Ownerin respect of such Deliverables

(H)The Parties may add to the scope of this Agreement additional Phases of the Project and/or Deliverables by prior written agreement.

1Definitions and interpretation

1.1In this Agreement:

“Access Agreement” means an access contract as defined in the Railways Act 1993 (as amended from time to time);

“the Act” means the Railways Act 1993 as amended, modified or replaced from time to time;

“Administrator” means Network Rail in the role of administrator of the approved Capped NSF2 Funding as such role is described in paragraph 9.3.1 and 9.3.2 of Schedule 2;

"Affiliate"means in relation to any company:

(a)a company which is either a holding company or a subsidiary of such company; or

(b)a company which is a subsidiary of a holding company of which such company is also a subsidiary

and “holding company” and “subsidiary” shall have the respective meanings given to them in section 1159 of the Companies Act 2006;

"Agreement for Lease" means an agreement to enter into a Station Lease in respect of a New Station;

“Asset” means each of the assets and equipment to be constructed, enhanced or installed as part of the Project;

“Asset Owner” meansNetwork Rail in accordance with paragraph 9.3 of Schedule 2;

“Asset Protection Agreement” means any agreement entered into by the Parties for Works forming part of the Project on or adjacent to the Network to be undertaken (or procured) by the Delivery Agent;

“Authorised Person” means a person authorised by the Delivery Agent to request any payment from the Administrator (as notified in writing to Network Rail for such purpose)or a person authorised by either the Delivery Agent or the Administrator to send or receive notices and sign any agreed Change;

“Beneficiary” means a person who is a party to an access contract (as defined in the Act) in respect of the Station whose role and contribution the Delivery Agent shall be responsible for securing (as more particularly described in paragraph 9.2 of Schedule 2);

“BREEAM” means the Building Research Establishment Environmental Assessment Method;

“Capped NSF2 Funding” means the maximum funding amount per NSF2 Project including contingency funds(as described in paragraph 3 of Schedule 1), approved by the NSF2 Awards Panel and available to the NSF2 Project, to cover an expected maximum of 75% of the NSF2 Project Costs including the proportional contingency (up to an expected 75% of the required contingency) for the NSF2 Project which in relation to Phase 1 is the sum of £ and in relation to Phase 2 is the sum of £

“Change” means a variation to the Project made in accordance with Clause 5;

“Collateral Warranty” means a warranty from each Contractor in favour of Network Rail in a form agreed by Network Rail;

“Commercially Sensitive Information” means the sub set of Confidential Information listed in column 1 of Part 1 (Commercially Sensitive Contractual Provisions) and column 1 of Part 2 (Commercially Sensitive Material) of Schedule 6(Commercially Sensitive Information) in each case for the period specified in column 2 of Parts 1 and 2 of Schedule 6.

“Confidential Information” means:

(a)information that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) and may include information whose disclosure would, or would be likely to, prejudice the commercial interests of any person, trade secrets, Intellectual Property Rights and know-how of either party and all personal data and sensitive personal data within the meaning of the Data Protection Act 1998; and

(b)Commercially Sensitive Information.

"Consent" means all approvals, permissions, consents, licences, certificates, registrations and authorisations (whether statutory or otherwise) which are required from time to time for the purposes of carrying out the Works, whether required to comply with any law or as a result of any rights of any third party including any consents required from Network Rail, consents in respect of any Network Change and any consents required from a third party to enter and remain upon that party's land;

“Contractor” means any person to whom a contract for the whole or any part of the design and construction of the Project and for the Works is let and in respect of whom the Delivery Agent is the employer;

“Control Period” means the period following an ORR access charges review over which the financial framework determined by ORR at such access charges review as being required by Network Rail to operate, maintain, renew and enhance its infrastructure;

“Control Period 5” means the fifth Control Period expected to begin on 1st April 2014 and end on 31st March 2019 or other such dates as may be specified by the ORR;

“Control Period 6” means the sixth Control Period expected to begin on the 1st April 2019 and end on the 31st March 2024 or other such dates specified by the ORR;

“Deliverable” means:

(a)a discrete item of works and/or equipment; and/or

(b)the services to be delivered in relation to the Project,

which form part of the Works and which are described in Appendix 2 and/or which item and/or services may be added by the Parties to Appendix 2 from time to time;

“Deliverable Price” in respect of the Project means the price set out in the relevant part of Appendix 2, (and includes the items set out in Clause 4.3) which forms the price to be paid by Network Rail in its capacity as the Administratorand Asset Owner in respect of such Project Deliverable or Deliverables as adjusted by Clause 5 (as the case may be);

“Delivery Agent” means the party to this Agreement who will undertake the role and responsibilities set out in paragraph 9.1 of Schedule 2 and in accordance with the NSF2 Principles to procure and/or undertake the services, works, other requirements to complete the Project;

"Design Phase” means up to GRIP Stage 5 of a Project;

“Development Deliverables”shall have the meaning given in paragraph 2.13(a) of Schedule1;

“DfT” means the Department for Transport, including the Secretary of State for Transport, or any successor or successors to the Department for Transport’s functions, rights and obligations referred to in this Agreement;

“Due Date for Payment”shall have the meaning given in Clause 6.4;

"Excluded Risk" means the occurrence of a risk other than those identified in Appendix 4 and/or an increase in cost (whether or not the same is a Change Variation) from that set out in Appendix 2 related to:

(a)rail replacement buses and diversions required as a consequence of the Works;

(b)any revenue loss compensation;

(c)providing advance information to passengers advising them of disruption and alternative arrangements as a consequence of carrying out the Works and publicity to advise passengers of the completion of the Works;

(d)insurance costs;

(e)staff and adviser fees incurred by the Delivery Agent;

(f)the Delivery Agent's Management Costs;

(g)any additional specific Deliverables; or

(h)any amounts incurred or payable by the Delivery Agent to Train Operating Companies in connection with the Project;

“Franchise”means the passenger rail franchise awarded by the Franchising Authority in respect of domestic passenger services;

“Franchise Agreement”means the franchise agreement between the Franchising Authority and a Franchisee which constitutes an agreement for the purposes of the Railways Act 1993 (as amended from time to time) and any regulations or orders made there under;

“Franchisee” means any Train Operating Company who has been awarded a passenger rail Franchise to operate passenger train services;

“Franchising Authority” means the government authority which specifies and awards a passenger rail Franchise;

“Freight Access Agreement”means any agreement entered into between Network Rail and an Operator for the movement of freight trains incorporating the Network Code;

“Funder” means either Party or such other party that has agreed to fund or part fund the Works identified in Appendix 2;

“GRIP” means the Governancefor Railway Investment Projects (as amended from time to time) which is a Network Rail standard for the development and implementation of works on Network Rail managed infrastructure;

“GRIP Stage 3” means the options development phase reached at GRIP Stage 3 using the GRIP Process;

“GRIP Stage 4” means the single option design phase reached at GRIP Stage 4 using the GRIP Process;

“GRIP Stage 5” means the detailed design phase reached using the GRIP process, which requires production of a complete and robust engineering design that allows risks, costs, timescales, resources and benefits to be fully understood prior to commitment to implement using the GRIP Process;

“GRIP Stage 3 Stage Gate Review” means the review of the NSF2 Project at the end of GRIP Stage 3 (if applicable) as described in paragraph 2.17 of Schedule 1;

“GRIP Stage 5 Stage Gate Review” means the mandatory review of the NSF2 Project at the end of GRIP Stage 5 as described in paragraph 4.4 of Schedule 1;

“GRIP Stage 6” means the construction, test, commission phase using the GRIP Process;

“Group Standards” means the Railway Group Standards produced pursuant to the Railway Group Standards Code (or equivalent predecessor documents, including previous versions of the Railway Group Standards Code) defining mandatory requirements in respect of the mainline railway in each case as published by the Rail Safety and Standards Board Limited or imposed by the Office of Rail and Road. Such standards can be accessed on the website

“Implementation Deliverables”shall have the meaning given in paragraph 2.13(b) of Schedule 1;

“Insolvency Event” in relation to any Party to this Agreement means:

(a)such Party stopping or suspending or threatening to stop or suspend payment of all or a material part of its debts, or becoming unable to pay its debts, or being deemed unable to pay its debts under section 123(1) or (2) of the Insolvency Act 1986, except that in the interpretation of this paragraph section 123(1) of the Insolvency Act 1986 shall have the effect as if for “£750” there were substituted “£50,000”;

(b)any step being taken by any person with a view to the winding up of such Party or any person presenting a winding-up petition which is not dismissed within five Working Days;

(c)a receiver, manager, administrative receiver or administrator being appointed in respect of such Party;

(d)such Party ceasing or threatening to cease to carry on all or a material part of its business, except for the purpose of and followed by a reconstruction, amalgamation, reorganisation, merger or consolidation on terms approved by the other Party before that step is taken (which approval shall not be unreasonably withheld or delayed); or

(e)any event occurring which, under the law of any relevant jurisdiction, has an analogous effect to any of the events listed above;

“Intellectual Property Rights”means means all intellectual property rights provided by the Customer to Network Rail in any part of the world in respect of any documentation or information, including any patent, patent application, trade mark, trade mark application, registered design, registered design application, utility model, trade name, discovery, invention, process, formula, specification, copyright (including rights in computer software and database and topography rights), know how or unregistered design right;

“Landlord’s Consent” has the meaning as defined in the Station Leases for the Stations included in the Works;

“Long Stop Date” means the 31st March 2020;

“Management Costs” means the costs incurred by the Delivery Agent in managing the Project;

“Match Funding” means the Match Funding as set out in paragraph 3.3 of Schedule 1;

“Medium Value for Money” has the meaning in the Department for Transport’s WebTAG guidance;

“Network” means the railway network of which Network Rail is the facility owner (as defined in section 17 (6) of the Act);

“Network Change” has the meaning given to that term in the Network Code;

“Network Code” means the code setting out the rules applying to all regulated Access Agreements;

“Network Rail Approval” means any approval given by Network Rail under any Asset Protection Agreement and/or any other Relevant Agreement, as appropriate;

“Network Rail Company Standard” means a standards document (or equivalent of such document) issued by Network Rail from time to time in relation to the Network as a whole which applies to the performance of the Works and Services under this Agreement, as published on the website

"Network Rail Costs" means the costs incurred by Network Rail under the terms of any Asset Protection Agreement and/or any Consent and/or any other Relevant Agreement together with any reasonable and proper costs of Network Rail in acting as Administrator in relation to the Project;

“New Station” means any new stations for heavy rail services in England and Wales which are promoted by third parties which in the case of the Project means the New Station described as such in Appendix 1;

“NSF2” or “Fund” means the New Stations Fund 2;

“NSF2 Administrator” means Network Rail in the role of Administrator of the approved Capped NSF2 Funding as such role is described in paragraph 9.3 of Schedule 2;

“NSF2 Asset Purchase Agreement”or“NSF2 APURA” means this Agreement;

“NSF2 Awards Panel” means the New Stations Fund Awards Panel with the role and responsibilities set out in paragraph 4.1 of Schedule 2;

“NSF2 Funding Criteria” means the criteriaoutlined in Paragraph 3 of Schedule 2, to be satisfied for a Project to qualify for NSF2 funding, subject to Project prioritisation and fund availability.

“NSF2 Principles” means the New Stations Fund Principles set out in Schedule 1;

“NSF2 Project” means the whole NSF2 Project agreed and approved by the NSF2 Awards Panel to be funded by the New Stations Fund 2 in addition to the Match Funding and other third party contributions.

“NSF2 Project Costs” means all relevant costs of delivering the NSF2 Project including those costs outlined in paragraph 2.10 of Schedule 1;

“NSF2 Project Deliverables” means the NSF2 Project Development Deliverables and the NSF2 Project Implementation Deliverables including those set out in paragraph 2.13 of Schedule 1;

“NSF2 Requirements” means the governance arrangements required by ORR and the NSF2 principles and governance arrangements set out in Schedules 1 and 2 in relation to the delivery and management of a Project;

“NSF2 Steering Group” means the NSF2 Steering Group with the role and responsibilities set out in paragraphs 4, 6 and 7 of Schedule 2;

“Operator”means an operator of passenger or freight trains which has entered into a Track Access Agreement or Freight Access Agreement (respectively) with Network Rail;

“OMRR Costs” means operating, maintenance, repair and renewal costs;

“ORR” means the Office of Rail and Road as established under the Railways and Transport Safety Act 2003, or the appropriate person or body being the successor or successors to the relevant functions of the Office of Rail and Road;

“Payment Certificate” means the letter, in substantially the form of the pro-forma set out in Schedule 3, which has been signed by the Authorised Person and verified by Network Rail either in writing or in formal NSF2 Steering Group meeting minutes;

"Permitted Risk" means the occurrence of a risk identified in the QRA Permitted Risks but excluding:

(a)an Excluded Risk;

(b)a Relief Event; and

(c)a Rumsfeld Risk;

"Phase 1" means the Works and Deliverables described as such in Part 1 of Appendix 1

"Phase 1 Conditions Precedent" means the Development Deliverables referred to as such in paragraph 2.13(a) of Schedule 1;

"Phase 2" means the Works and Deliverables described as such in Part 2 of Appendix 1;

"Phase 2 Conditions Precedent" means the matters referred to as such in paragraph 2.13 of Schedule1;

“Product Warranty” means a guarantee transferable for the benefit of Network Rail given to the purchaser or recipient by a company or manufacturer stating that a product is reliable and free from known defects and that the seller or supplier will, without charge, repair or replace defective parts within a given time limit and under certain conditions;

“Programme” means the programme for delivering the Works in this agreed form;

“Project” means the development and implementation of the New Station, providing the Deliverables set out in paragraph 2.13 of Schedule 1 and associated requirements including the Works for the construction or re-opening of the New Station described in Appendix 1, and committed to under this Agreement in Appendix 2 as such scope may be amended from time to time by written agreement of Network Rail, the Delivery Agent, the NSF2 Steering Group and the Funders (as appropriate) in accordance with Clause 2.3;

“Project Close-Out” means the activities required to complete a Project after the Works have been Taken into Use;

“Project Costs” means all relevant costs of delivering the Project including those costs outlined in paragraph 2.10 of Schedule 1;

“Project Termination Development Costs” means the actual costs of a Project reasonably and properly incurred by the Delivery Agent or by other parties in relation to the Project, prior to termination (or committed to be incurred to the extent that they cannot then reasonably be avoided or mitigated and are subsequently incurred) in carrying out the Design Phase if such Project is not progressed beyond the Design Phase;

“Prospective Change” means a proposed variation as defined in Clause 5;