SUBJECT TO CONTRACT
Dated 201[X]
NETWORK RAIL INFRASTRUCTURE LIMITED
And
[XX DELIVERY AGENT NAME][p1]
ASSET PURCHASE AGREEMENT
in connection with
the CP5 Station Commercial Project Facility
[p2]
THIS AGREEMENT is made on 201[X]
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)[XX DELIVERY AGENT COMPANY NAME] registered in England and Wales under number [insert company number] whose registered office is at [insert Delivery Agent’s registered office address][p3] (“[XX DELIVERY AGENT NAME[p4]]”),
separately referred to as the “Party” and together referred to as “the Parties”.
WHEREAS:
(A)The SCPF Steering Group has identified the Projects attached in Appendix 1, agrees their Key Project Works and Objectives outlined in Appendix 1 and confirms that these qualify for funding from the Station Commercial Project Facility (SCPF). The use of SCPF funding is subject to the SCPF Steering Group’s verification of the Deliverables in accordance with the Specification and agreed costs.
(B)[XX DELIVERY AGENT NAME] is the Delivery Agent, SFO, [(part) Funder] and[Beneficiary].
(C)Network Rail will carry out the roles of Administrator, Asset Owner,[Funder] and SCPFSteering Group member.
1Definitions and interpretation
1.1In this Agreement:
“Administrator” means the administrator of the SCPF fundingdescribed in paragraph 8.4 of Schedule 2, who administers the SCPF funding in accordance with the Project requirements set out in Appendix 2 and the terms of this Agreement;
“Asset” means each of the assets and equipment to be constructed, enhanced or installed as part of a Project;
“Asset Owner” meansNetwork Rail in accordance with paragraph 8.5 of Schedule 2;
“Asset Protection Agreement” means an agreement entered into by the Parties for Works on or adjacent to the Network to be undertaken (or procured) by the Delivery Agent;
“ATOC” means Association of Train Operating Companies;
“Authorised Person” means a person authorised by the Delivery Agent(as notified to Network Rail)to request any payment from the Administrator or a person authorised by either the Delivery Agent or the Administrator to send or receive notices and sign any agreed Change;
“Beneficiary” means the beneficiary of the Works described in paragraph 8.3 of Schedule 2;
“Capped Price” means the amount specified as the Total SCPF Capped Price for the Works as set out in paragraph 2.1 of Appendix 2;
“Change” means a variation in accordance with Clause 5;
“Contribution Letter” means a letter of agreement to secure funds for Works from a Third Party Funder;
“Control Period” means the period following an ORR access charges review over which the financial framework determined by the ORR at such access charges review,provides for Network Rail to operate, maintain, renew and enhance its infrastructure;
“CP5” means Control Period 5, which is the five year period from 1st April 2014 to 31st March 2019;
“CP6” means Control Period 6, which will be the five year period following the end of CP6, such dates to be agreed with the ORR;
"Delay Event" meansthe occurrence of:
(a)an Unforeseen Project Risk; or
(b)a risk which is deemed by the SCPF Steering Group to be outside the control and /or management of theDelivery Agent;
“Deliverable” means an Asset or improvement achievedas a result of the Works for a Project and as set out as in Paragraph 5 of Appendix 2;
“Delivery Agent” means the party who willprocure,undertake and complete the Works;
"Depots" means the light maintenance depots specified in the relevant Depot Access Conditions and the term Depot shall be construed accordingly;
“Depot Access Conditions” means the depot access conditions, together with the depot access annexes applicable to the relevant Depots, which are the subject of the Works, or any amendment or replacement of the same;
“Depot Change” has the meaning given to that term in the Depot Access Conditions;
“Design Phase” means up to the GRIP Stage 5of a Project;
“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;
“EU Procurement Requirements” includes, but is not restricted to EC Directives 2004/18/EC, 2004/17/EC and 2007/66/EC as implemented by the Public Contracts Regulations 2006 (SI No 5/2006), as amended, and the Utilities Contracts Regulations 2006 (SI No 6/2006), as amended, and includes the EU Commission Interpretative Communication (2006/C 179/02) and the principles of transparency, non discrimination, equality of treatment, proportionality and mutual recognition in theTreaty on the Functioning of the European Union 2012/C 326/01;
“Franchise Agreement” means the agreement made between the Secretary of State for Transport and [XX TOC NAME][p5] dated [xx date of Agreement] pursuant to which [XX TOC NAME] provides railway passenger services which the DfT has designated as eligible for provision under a franchise agreement within the meaning of Section 23 of the Railways Act 1993;
“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 Network Rail document entitled Governance for Railway Investment Projects as amended from time to time;
“GRIP Stage 1” meansthe output definition design phase reached using the GRIP process;
“GRIP Stages 1 to 3” means the output definition, pre-feasibility and option selection design phases using the GRIP process;
“GRIP Stage 3” means the single option selection design phase using the GRIP process;
“GRIP Stage 4” means the single option development / design phase 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;
“GRIP Stages 6 to 8” means the construction, test and commission, scheme hand back and Project Close-Out implementation phases 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 Regulation. Such standards can be accessed on the website
“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;
“Landlord’s Consent”means the consent of Network Rail pursuant to the Station Leases for the Stations included in the Works and (where relevant) a lease for a Depot included in the Works;
"Long Stop Date" means, in respect of a Project, the date that is six (6) monthsfollowing the Project Completion Date in respect of the relevant Project;
“Management Costs” means the costs incurred by the Delivery Agent in managing the Project;
“Network” means the railway network of which Network Rail is the facility owner (as defined in section 17(6) of the Railways Act 1993, as amended);
“Network Change” shall have the meaning given to that term in the Network Code[1][p6];
“Network Code” means the code setting out the rules applying to all regulated access agreements;
“Network Rail Activities”means services undertaken by Network Rail in support of the Delivery Agent in connection with the Project as more specifically set out in paragraph 7 of Appendix 2;
“Network Rail Approval” means the approval given under Landlord’s Consent and/or the Asset Protection Agreements, 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
“ORR” means the Office of Rail Regulation 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 Regulation;
“Payment Certificate” means the letter referred to in Clause 6.3, in substantially the form of the pro-forma set out in Schedule 3, which has been signed by the Authorised Person and verified by the SCPF Steering Group either in writing or by counter-signature by the SCPF Steering Group chairperson, or in formal SCPF Steering Group meeting minutes;
“Periodic Review” means the access charges review process normally undertaken every five years to establish the revenues and associated financial framework required for Network Rail to operate, maintain and renew its infrastructure;
“Programme” means the programme for delivering the Works;
“Project” means an SCPF enhancement project listed in Appendix 1, as such list may be amended from time to time in accordance with Clauses 2 and 5 of this Agreement;
“Project Close-Out” means the activities required to complete a Project after the Works have been Taken into Use;
"Project Completion Date" means, in respect of a Project, the date listed in the table contained in paragraph 3 of Appendix 2alongside the row entitled "Project Completion Date" or such other date as agreed pursuant to a Change;
“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 a 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;
“Purchase Price”means in respect of each Project which is added to this Agreement in accordance with Clause 2:
(a)the costs of the Deliverables reasonably and properly incurred by the Delivery Agent (subject to a maximum of an amount equal to the Total SCPF Target Price for the Works plus any other Network Rail funded Works each as set out in paragraph 2.1 of the relevant Part of Appendix 2); and
(b)any costs reasonably and properly incurred by the Delivery Agent as a result of the crystallisation of a risk identified in the QRA (up to the level of Contingency set out in paragraph 2.1 of the relevant Part of Appendix 2),
which forms the price to be paid by the Administrator in respect of such Project as adjusted by Clause 5 (as the case may be) and subject always to an overall maximumof an amount equal to the Total Capped Purchase Price for the Works payable to the Delivery Agent plus any other Network Rail funded Works each as set out in paragraph 2.1 of the relevant part of Appendix 2;
"QRA"means the Quantitative Risk Assessment as described in paragraph 2.1 of Schedule 1;
“Rail Industry Dispute Resolution Panel” means the dispute resolution panel establishedpursuant to the Railway Industry Dispute Resolution (RIDR) rules, as such rules can be found on the website:
“Railway” means Network Rail’s infrastructure and operational track and the traffic on the same;
“Regulated Change” means Station Change, Depot Change or Network Changeas appropriate;
“SCPF” means the Station Commercial Project Facility;
“SCPF Awards Panel” means the group with a remit set out in paragraph 4.1 of Schedule 2 to determine which investment proposals will be fundedand taking a strategic overview of the SCPF programme;
“SCPF Funding Criteria”means the funding principles outlined in paragraph 3 of Schedule 1 and the associated criteria set out in paragraph 3 of Schedule 2, to be satisfied for a Project to qualify for SCPF funding, subject to Project prioritisation and fund availability;
“SCPF Requirements” means the governance arrangements required by ORR and the SCPF principles and governance arrangements set out in Schedules 1 and 2 in relation to the delivery and management of a Project;
“SCPF Steering Group” means a group established for the Station Commercial Project Facility in accordance with the remit set out in paragraph 4.2 of Schedule 2 of this Agreement;
“SFO” means Station Facility Ownerwhere the meaning of Facility Owner applied to the station has the meaning defined in section 17 (6) of the Railways Act 1993;
“Specification” means the scope and specification for the Works in accordance with Standards and as agreed by theSCPF Steering Group,to be more fully described in Appendix 2 following addition through the arrangements in Clause 2;
“Standards” means:
(a)technical standards to which railway assets or equipment used on or as part of the Network must conform; and
(b)operating procedures with which the operators of railway assets must comply,
in each case as issued by Network Rail as Network Rail Company Standards and issued by the Rail Safety and Standards Board Limited as Group Standards authorised pursuant to the Railway Group Standard Code;
“Station” means any station in respect of which the SFO enters or has entered into a Station Lease or where the SFO is an access beneficiary;
“Station Access Conditions” means the National Station Access Conditions 1996 (England and Wales), together with the station specific annexes applicable to the relevant stations, which are the subject of the Works, or any amendment or replacement of the same;
“Station Change”has the meaning given to that term in the Station Access Conditions;
“Station Lease” means the lease of the station to which the SFO is or becomes the Facility Owner (as defined in section 17(6) of the Railways Act 1993) at any time during the duration of the Franchise Agreement;
“Taken into Use/Taking into Use” means the act of taking into use of the Works or part thereof, and the taking out of use of other assets in accordance with the relevant standards regulations or procedures;
"Target Price"means the Total SCPF Target Price for the Works as set out in paragraph 2.1 of Appendix 2;
“Third Party Funder” means a Funder, who is not a Party to this Agreement;
“TOC” means a DfT franchised Train Operating Company (including those in receipt of a direct award);
“Unforeseen Project Risks” means such risks as could not reasonably be foreseen by the Delivery Agent in undertaking the Project in accordance with Clauses 3 and 4.7 and taking into account, any assumptions and risks identified in Appendix 2 by the Delivery Agent in relation to the Project;
“Updated Station Access Conditions” means the amended Station Access Conditions with respect to the Station affected by the Works;
“Works” means those works and servicesundertaken to achieve the Deliverables (being both individual Deliverables and the aggregate Deliverables) in accordance with the Scope and Specification of Works set out in paragraph 1 of the relevant Part of Appendix 2; and
“Working Day” means any day other thana Saturday, a Sunday or a public holiday.
1.2In this Agreement:
(a)words importing persons includes firms, companies and corporations;
(b)words importing one gender will be construed as importing any other gender;
(c)words importing singular will be construed as importing the plural and vice versa;
(d)terms used in this Agreement shall have the same meaning as the Appendices and the Schedules;
(e)unless the context otherwise requires, references to any statute include all regulations and orders made under the relevant statute or the context otherwise requires, any statute regulations or orders amending consolidating or replacing them in force from time to time;
(f)where a Party agrees to carry out an obligation under this Agreement it will be deemed to fulfil that obligation if the Party procures that it is done; and
(g)any obligation on a Party not to do or omit to do anything shall be deemed to include an obligation not to allow that thing to be done or omitted to be done by any person under its control.
2Framework
2.1This Agreement is intended to operate as a framework agreement and the Parties may at their discretion agreein writing to add further Projects to this Agreement as additional new parts to the Appendices.
2.2No new Project shall be added to Appendix 2 and a committed Capped Price be offered in accordance with the terms of this Agreement unless:
(a)as appropriate:
(i) the SCPF Steering Grouphas approved the Project and it is contained in Appendix 1;
(ii) the Delivery Agent has determined the Specification, the Capped Price, any other amounts funded in connection with the Project and the Programme of the Works in relation to the Project; and
(iii) the SCPF Steering Group has provided confirmation to the Administrator of its agreement to the determination provided by the Delivery Agent to satisfy the terms under Clause 2.2 (a)(ii);
and the SCPF Awards Panel has confirmed the Project meets the SCPF Funding Criteria and has approved that the additional SCPF funding will be allocated for this purpose;
(b)the Delivery Agent has entered into an Asset Protection Agreement and/or received Landlord’s Consent, as appropriate, in respect of the Project; and
(c)both Parties are satisfied that the Project is fully funded.
3Obligations of the Parties
3.1The Parties agree to undertake all their roles and obligations in accordance with the terms and conditions set out in this Asset Purchase Agreement, the Appendices and the Schedules (collectively the “Agreement”).