NR20 NR20 Network Rail Concession Agreement for [brief description] Agreement No:[Insert] VERSION 1.0
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Network Rail Concession Agreement
for [brief description]
Agreement No:[Insert]
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FORM OF CONCESSION AGREEMENT This Agreement is made the ……… day of ………………………………. 20……
Between
NETWORK RAIL INFRASTRUCTURE LIMITED a company registered in England and Wales under number
2904587 whose registered office is at 1 Eversholt St, London, NW1 2DN (“Network Rail”)
and
[NAME OF CONCESSIONAIRE] a [company registered in ....... under number ...... whose registered] office is at
[Concessionaire's Address] (“the Concessionaire”).
Whereas
(A) Network Rail wishes to grant a concession to the Concessionaire [to manage, promote and exploit ......].
(B) The Concessionaire is engaged in the business of operating such a concession and has the appropriate skill, knowledge and experience in that field.
Now this Agreement witnesseth as follows:
1 In this Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions hereinafter referred to.
2 The following documents shall form and be read and construed as part of this Agreement, and in the case of any ambiguity or discrepancy shall have the following order of priority:
2.1 this Form of Concession Agreement;
2.2 Appendix;
2.3 Contract Specific Conditions;
2.4 Conditions;
2.5 Schedule 1 Scope of the Concession;
2.7 Schedule 2 Contract Requirements HSEA Conditions;
2.8 Schedule 3 Fees and Payment Terms;
2.9 Schedule 4 Key Performance Indicators;
2.10 Schedule 5 Security Account;
2.11 Schedule 6 Repairs and Maintenance; and
2.12 Schedule 7 Review Meetings and Reporting,
all of which are annexed hereto and together form the Agreement.
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In witness whereof the Parties hereto have caused this Agreement to be executed in duplicate on the date first stated above, as follows:
THE COMMON SEAL of NETWORK RAIL INFRASTRUCTURE LIMITED was affixed to this DEED in the presence of:
Authorised Signatory…………………………………
OR
SIGNED for and on behalf of ) NETWORK RAIL INFRASTRUCTURE LIMITED ) by: )
Authorised signatory……………………………………
Printed Name:…………………………………………..
THE COMMON SEAL of
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ was affixed to this Deed in the presence of:
Director …………………………………………………
Printed Name:………………………………………… Director/Company Secretary …………………………
Printed Name:………………………………………….
OR
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SIGNED as a DEED for and on behalf of
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ by
Director ………………………………………………………
Printed Name:……………………………………………….. Director/Company Secretary ……………………………
Printed Name:…………………………………………….
OR
SIGNED for and on behalf of
……………………………………………..
by
)
)
)
Director ………………………………………………………….
Printed Name:…………………………………………………..
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APPENDIX
(Note: Relevant clause numbers are shown in brackets)
1. Concessionaire’s Representative (Clause 1.1) [Insert Name]
[Insert Position]
[Insert Address]
2. Confidential Information (clause 1.1);
Commercially Sensitive Material [Insert details and include end dates for when the material would no longer be Commercially Sensitive]
3. Network Rail’s Representative (Clause 1.1) [Insert Name]
[Insert Position]
[Insert Address]
4. Sites (Clauses 1.1 & 34) [Applicable / Not Applicable]
5. Structures (Clause 1.1) [Structures to be repaired and maintained by the Concessionaire to be listed / None]
6. Pre-existing agreements (Clause 2.3) [None / to be listed]
7. Consequential loss or damage limit (Clause 6.2) Nil / £......... (.............pounds)
8. Aggregate liability of Network Rail for property damage (Clause 6.4)
Not applicable / £.............. (............. pounds) in each Concession Year
9. Product liability insurance (Clause 8.1) £5,000,000 (five million pounds) for any one occurrence
10. Professional indemnity insurance (Clause 8.1) £5,000,000 (five million pounds) for any one occurrence
11. Public liability insurance (Clause 8.1) £10,000,000 (ten million pounds) for any one occurrence
12. Contractors all risk insurance (Clause 8.1) £10,000,000 (ten million pounds) for any one occurrence
13 Commencement Date (Clause 9.3 ) [Insert Date]
14. Completion Date (Clause 9.3) [Insert Date]
15. Addresses for Notices (Clause 19) Network Rail:
Address:
Company Secretary
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Network Rail
1 Eversholt St
London NW1 2DN
The Concessionaire:
[Insert Name]
[Insert Position]
[Insert Address]
or such other address as may be notified in writing from time to time by the relevant party.
16. Information Security (Clause 26) [Not applicable / Applicable (Concessionaire is connecting into Network Rail's network or has access to Network Rail's information classified as Internal or above)]
17. London Living Wage (Clause 27) [No adjustment to the Agreement / Annual adjustment as described in Schedule 3]
18. Security Account (Clause 30) [Required / Not Required]
19. Investment Works (Clause 31) [Applicable / Not Applicable]
20. Repairs and Maintenance of Structures (Clause 32)
[Applicable / Not Applicable]
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CONTRACT SPECIFIC CONDITIONS [None]
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CONDITIONS Table of Contents
1. Definitions and Interpretation
2. Duties Of The Concessionaire
3. Network Rail’s Obligations
4. Fees and Payment Terms
5. Set-Off
6. Liability
7. Indemnity
8. Insurance
9. Scope and Duration of the Agreement
10. Assignment and Sub-Contracting
11. Intellectual Property
12. Personnel
13. Confidentiality and Comptroller And Auditor General
14. Termination
15. Waiver
16. Data Protection
17. The Contracts (Rights Of Third Parties) Act 1999
18. TUPE
19. Notices
20. Entire Agreement
21. Changes
22. Governing Law Jurisdiction and Limitations
23. Compliance
24. Equality and Diversity
25. Freedom of Information
26. Security
27. London Living Wage
28. Force Majeure
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29. Conflict of Interest
30. Security Account
31. Investment Work
32. Repairs and Maintenance of Structures
33. Access to Network Rail’s Premises
34. Disposal of Sites
35. Electrical and Other Services
36. Accounts and Records
37. Review Meetings and Reporting
Schedules
Schedule 1 Scope of the Concession
Schedule 2 Contract Requirements HSEA Conditions
Schedule 3 Fees and Payment Terms
Schedule 4 Key Performance Indicators
Schedule 5 Security Account
Schedule 6 Repairs and Maintenance
Schedule 7 Review Meetings and Reporting
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CONDITIONS
1. Definitions and Interpretation
1.1 In this Agreement:
1.1.1 “Applicable Law” means all applicable laws, whether local, national or supranational and all relevant regulations, codes of practice and good conduct, Standards and any reasonable instructions of Network Rail or any other relevant regulatory body or organisation whether or not having the force of law (including those relating to health and safety at work, public safety and environmental matters);
1.1.2 “Asset Register” means the list detailing the Sites, Structures and relevant concession data together with information about the condition and any outstanding works in relation to such assets;
1.1.3 “Bad Debt” means an amount due to the Concessionaire under the Concession which has been determined as a bad debt in accordance with UK GAAP;
1.1.4 “Commencement Date” means the date as stated in the Appendix;
1.1.5 “Completion Date” means the date as stated in the Appendix;
1.1.6 “Concession” means the Scope of Concession as set out in Schedule 1;
1.1.7 “Concession Year” means a period of twelve Months commencing on the Commencement Date, or any anniversary of the Commencement Date;
1.1.8 “Concessionaire’s Representative” means the person designated as such in the Appendix or as notified by the Concessionaire to Network Rail;
1.1.9 “Confidential Information” means 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 and Intellectual Property Rights including the information listed in the Appendix, and all personal data and sensitive personal data within the meaning of the Data Protection Act 1998 and the General Data Protection Regulation (EU) 2016/679 once in force;
1.1.10 “Contract Requirements HSEA Conditions” means the document described as such and referred to in this Agreement;
1.1.11 “Contracting Authority” means any contracting authority as defined in Regulation 4 of the Concession Contracts Regulations 2016;
1.1.12 “Crown” means the government of the United Kingdom (including the Northern Ireland Executive Committee and Northern Ireland Departments, the Scottish Government and the National Assembly for Wales), including government ministers, government departments, government and particular bodies and government agencies;
1.1.13 “Greater London Area” means the area administered by the Greater London Authority or any relevant person or body which replaces the Greater London Authority;
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1.1.14 “Intellectual Property” means all intellectual and industrial property and all rights therein in any part of the world including any patent, patent application, trade mark, trade mark application, registered design, registered design application, trade name, trade secret, business name, discovery, invention, process, formula, know-how, specification, improvement, technique, copyright, unregistered design right, technical information or drawing including rights in computer software, database rights, topography rights;
1.1.15 “Investment Criteria” means the criteria used by Network Rail to determine whether or not to make a particular investment including the return on investment, the internal rate of return and the impact of the investment on the net cash receipts of Network Rail in any Concession Year;
1.1.16 “Investment Work” means investment works as set out in Clause 31;
1.1.17 “Investment Work Costs” means investment works costs as set out in Clause 31;
1.1.18 “Key Performance Indicators” means the key performance indicators set out in Schedule 4;
1.1.19 “Liabilities” means all liabilities, losses, demands, claims, damages, amounts agreed upon in settlement, costs and expenses (including all legal and other professional fees, expenses and disbursements);
1.1.20 “London Living Wage” means the basic hourly rate which is set as the London Living Wage by the Mayor of London and/or the Greater London Authority and/or another relevant person, body or agency (before tax, other deductions and any increase for overtime), as may be revised from time to time by the Mayor of London, the Greater London Authority or another relevant person, body or agency;
1.1.21 “Network Rail’s Representative” means the person designated as such in the Appendix or as notified by Network Rail to the Concessionaire;
1.1.22 “Railway Infrastructure” means the infrastructure (including signalling, embankment, land and bridges) and operational track controlled by Network Rail;
1.1.23 “Railway Network” means the Railway Infrastructure; Network Rail’s activities in carrying out the operation, maintenance and replacement of the Railway Infrastructure; and traffic on the Railway Infrastructure;
1.1.24 “RISQS” means the Rail Industry Supplier Qualification Scheme;
1.1.25 “Scope” means the scope of the Concession to be performed by the Concessionaire as specified in Schedule 1 or as may be varied by Network Rail;
1.1.26 “Sites” means those locations, when stated as applicable in the Appendix, on or connected to the Railway Network made available pursuant to this Agreement;
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1.1.27 “Standards” means the Railway Group Standards, Network Rail Company Standards and any other British and European standards and normal building practice as applicable to the operation of the Concession;
1.1.28 ”Structures” means that designated by Network Rail as a structure that is impacted by the Concession and requires repairs and maintenance by the Concessionaire including those listed in the Appendix;
1.1.29 “Supply Chain Parties” means:
(a) all persons engaged or employed by the Concessionaire who are involved with the performance by the Concessionaire of its obligations under this Agreement; and
(b) all contractors which are engaged by the Concessionaire in connection with the performance by the Concessionaire of its obligations under this Agreement, and all relevant persons engaged or employed by such contractors.
1.1.30 “Working Day” means a day other than a Saturday or Sunday on which banks are open for ordinary banking business in London.
1.2 Any reference to Appendix or clause sub-clause or Schedule is to the relevant clause or sub-clause of these Conditions or the relevant Appendix or Schedule to this Agreement.
1.3 The headings are included for convenience only and shall not affect interpretation of this Agreement.
1.4 Use of the singular includes the plural and vice versa.
1.5 Use of any gender includes all genders.
1.6 Any reference to a statute or statutory instrument shall be construed as referring to any modification extension or re-enactment thereof from time to time.
1.7 Any phrase introduced by the term “including” shall be construed as illustrative and without limitation.
2. Duties of the Concessionaire
2.1 The Concessionaire shall operate the Concession:
2.1.1 in accordance with the Standards;
2.1.2 in accordance with Schedules 1 - 7;
2.1.3 in a safe, thorough and professional manner exercising all due skill, care and diligence and to the standard to be expected of a reputable, prudent and responsible company experienced in the provision of services of a similar size, scope and complexity as the Concession; and
2.1.4 in accordance with such reasonable instructions as may from time to time be given by Network Rail’s Representative.
2.2 Except where stated otherwise in this Agreement, the Concessionaire shall ensure that it obtains and maintains throughout this Agreement all necessary permits, licences, authorisations and any other permissions (whether statutory or otherwise) required to perform its obligations under this Agreement. The
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Concessionaire shall not make any applications without Network Rail’s prior approval in writing.
2.3 Network Rail acknowledges the existence of the pre-existing agreements listed in the Appendix. The Concessionaire agrees that Network Rail shall not be in breach of its obligations hereunder in the performance of its obligations under the pre- existing agreements or any extensions or renewals thereof.
3. Network Rail’s Obligations
3.1 Network Rail shall provide reasonable co-operation to the Concessionaire in relation to applications for planning or other consents and shall provide information reasonably requested by the Concessionaire in connection with any such application.
3.2 Network Rail warrants that the exercise by the Concessionaire of the rights granted to the Concessionaire by Network Rail under this Agreement will not infringe the rights of any third party.
4. Fees and Payment Terms
4.1 In consideration for the grant of the Concession by Network Rail, the Concessionaire shall pay to Network Rail in accordance with Schedule 3 Fees and Payment Terms.
4.2 All references to payments made in this Agreement are exclusive of any VAT chargeable. Where any taxable supply for VAT purposes is made under or in connection with this Agreement by one party to the other, the recipient of that supply shall pay to the supplier such VAT as is chargeable in respect of the supply at the same time as payment is due or in any other case when demanded by the supplier. The payee shall provide the payer with a valid VAT invoice in respect of any payment of VAT.
4.3 If any payment in respect of VAT is made under this Agreement in circumstances where VAT was not properly chargeable, then, where the supplier has accounted for such VAT to HM Revenue & Customs, the supplier’s obligation to repay any amount to the payer shall be limited to such amount as the supplier is entitled to recover (by way of credit, repayment or otherwise) from HM Revenue & Customs in respect of the VAT wrongly paid.
4.4 If payment of any amount is due to be made by Network Rail to the Concessionaire, Network Rail shall pay any amount not in dispute within 28 days from the date on which it receives a valid invoice in the agreed format.
4.5 If Network Rail disputes any invoice (or part of an invoice in good faith) it shall notify the Concessionaire within fourteen (14) days of receipt of such invoice by Network Rail and will be entitled to withhold payment of the disputed amount pending resolution of the dispute.
4.6 If any sum under the Agreement is not paid when due by either party then, without prejudice to the parties’ other rights under the Agreement, that sum shall bear simple interest from the due date until payment is made in full at a rate of 4% per annum above the Bank of England Base Rate current at the date that a payment under this Agreement becomes overdue. The Concessionaire is not entitled to
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suspend performance of the services as a result of any sums being outstanding.
5. Set-off
Without prejudice to Network Rail’s other rights and remedies, Network Rail may deduct from any sums payable to the Concessionaire under the Agreement an amount equivalent to any sum payable by or recoverable from the Concessionaire to Network Rail (whether such sums are payable by or recoverable from the Concessionaire under the Agreement or under any other agreement between the Concessionaire and Network Rail) and may also deduct any sum then payable by or recoverable from the Concessionaire or which at any time thereafter may be payable by or recoverable from the Concessionaire under any other agreement between the Concessionaire and Network Rail.
6. Liability
6.1 Notwithstanding any other provision of this Agreement, neither party excludes or limits its liability for:
6.1.1 fraud;
6.1.2 fraudulent misrepresentation;
6.1.3 death or personal injury caused by its negligence;
6.1.4 breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
6.1.5 any other liability which cannot lawfully be limited or excluded.
6.2 The Concessionaire shall not be liable to Network Rail by reason of any representation or implied warranty, condition or other term or any duty of common law, or under the express terms of this Agreement or otherwise, for any:
6.2.1 loss of goodwill; or
6.2.2 special, indirect or consequential loss or damage (including business interruption) in excess of the sum stated in the Appendix.
6.3 Network Rail shall not be liable to the Concessionaire by reason of any representation (unless fraudulent) or implied warranty, condition or other term or any duty of common law, or under the express terms of this Agreement or otherwise, for any:
6.3.1 direct loss;
6.3.2 loss of profit, business, contracts, opportunity, goodwill, revenues, anticipated savings or other similar loss; and
6.3.3 special, indirect or consequential loss or damage (whether for loss of profits or otherwise).
6.4 If stated as applicable in the Appendix, the aggregate liability of Network Rail to the Concessionaire in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, for property damage arising in connection with the performance or contemplated performance of this Agreement, shall be limited to the sum stated in the Appendix.
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7. Indemnity
7.1 Subject always to Clause 6.2, the Concessionaire agrees to indemnify and keep Network Rail indemnified on demand from and against any Liabilities:
7.1.1 arising out of damage to or loss of Network Rail property or third party property by the Concessionaire, its employees, agents, or contractors;
7.1.2 arising out of death of or personal injury to any person caused by the Concessionaire, its employees, agents, or contractors and/or
7.1.3 which Network Rail incurs or suffers as a consequence of, or would not have arisen but for, any default or negligence by the Concessionaire or its agents, employees or contractors in the due and punctual performance of any of its obligations under this Agreement or termination of this Agreement by Network Rail under Clauses 14.2, 14.3 and 14.5.
This indemnity shall not cover Network Rail to the extent that a claim under it results from Network Rail’s negligence or wilful misconduct.
7.2 If any third party makes a claim, or notifies an intention to make a claim, against Network Rail which may reasonably be considered likely to give rise to a Liability under this indemnity (a Claim), Network Rail shall:
7.2.1 as soon as reasonably practicable, give written notice of the Claim to the Concessionaire, specifying the nature of the Claim in reasonable detail;
7.2.2 not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Concessionaire;
7.2.3 give the Concessionaire and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of Network Rail, so as to enable the Concessionaire and its professional advisers to examine them and to take copies (at the Concessionaire's expense) for the purpose of assessing the Claim; and
7.2.4 subject to the Concessionaire providing security to Network Rail to Network Rail’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Concessionaire may reasonably request to avoid, dispute, compromise or defend the Claim.
8. Insurance
8.1 The Concessionaire undertakes to take out and maintain at its own cost from the Commencement Date the following insurances:
8.1.1 product liability insurance for an amount not less than the sum stated in the Appendix;
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8.1.2 professional indemnity insurance for an amount not less than the sum stated in the Appendix;
8.1.3 public liability insurance for an amount not less than the sum stated in the Appendix; and
8.1.4 contractors all risks insurance for an amount not less than the sum stated in the Appendix.
8.2 The Concessionaire shall maintain the professional indemnity insurance for a further period of three years following expiry of this Agreement.
8.3 The Concessionaire shall:
8.3.1 ensure that the insurance policy or policies shall be or are effected with an insurer who is, and on terms other than as to premium which are, to the satisfaction of Network Rail;
8.3.2 prior to the date of this Agreement or within thirty days afterwards, submit to Network Rail’s Representative a certificate signed by the Concessionaire’s insurers or the insurer’s appointed agents confirming that the Concessionaire is insured in accordance with the requirements of this Clause; and
8.3.3 from time to time on request produce evidence to Network Rail’s Representative that such insurance cover remains in force.
9. Scope and Duration of the Agreement
9.1 Network Rail grants to the Concessionaire the Scope of Concession as set out in Schedule 1.
9.2 The Scope may be varied as set down in Schedule 1.
9.3 The services and any associated works shall commence on the Commencement Date stated in the Appendix and will continue until the Completion Date stated in the Appendix.
9.4 Network Rail shall provide reasonable co-operation to the Concessionaire and shall provide such information as the Concessionaire shall reasonably request and which is strictly necessary in order to facilitate the operation of the Concession by the Concessionaire.
9.5 Notwithstanding completion of the performance of the services or termination in accordance with this Agreement, both parties shall remain bound by this Agreement insofar as and for so long as may be necessary to give effect to the parties respective rights and obligations hereunder subject to the relevant periods of statutory liability under the Limitation Act 1980.
10. Assignment and Sub-contracting
10.1 Network Rail shall not assign charge or transfer this Agreement or any of its rights under it without the prior written consent of the Concessionaire (such consent not to be unreasonably withheld or delayed), provided that the Concessionaire’s consent shall not be required where it is between Network Rail and its direct or indirect holding companies and its direct or indirect subsidiaries (within the meaning of s1159 Companies Act 2006).
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10.2 The Concessionaire shall not assign charge or transfer this Agreement or any of its rights under it without the prior written consent of Network Rail (such consent not to be unreasonably withheld or delayed).
10.3 The Concessionaire may sub-contract the performance of any of its obligations or issue licences under this Agreement to any person that the Concessionaire reasonably considers fit provided that:
10.3.1 the Concessionaire shall remain fully and directly responsible to Network Rail under the terms of this Agreement as well as for any act or omission of its sub-contractors as fully as if they were acts or omissions of the Concessionaire or its employees or agents;
10.3.2 the Concessionaire will remain Network Rail’s sole point of contact in relation to this Agreement; and
10.3.3 the Concessionaire shall enter into an agreement with equivalent obligations on that sub-contractor and equivalent rights and protections for Network Rail as provided in this Agreement including in particular, and unless agreed otherwise by Network Rail, an obligation on any sub-contractor to obtain RISQS Approval and to comply with the safety requirements.
11. Intellectual Property
11.1 All Intellectual Property Rights acquired or created by the Concessionaire or on the Concessionaire’s behalf for Network Rail, commissioned by Network Rail or which relate to the Concession will vest in Network Rail. The Concessionaire assigns to Network Rail all such rights (whether presently existing or to be created in the future) to the fullest extent to which the Concessionaire is able (and if moral rights exist, the Concessionaire waives such rights) and shall execute all documents and do any other things reasonably necessary to further assure Network Rail’s title to such Intellectual Property Rights.
11.2 All Intellectual Property Rights supplied by Network Rail to the Concessionaire or used by the Concessionaire in the operation of the Concession (if any) shall at all times be and remain the exclusive property of Network Rail and such items shall be held by the Concessionaire in safe custody at its own risk and maintained and kept in good condition by the Concessionaire until returned to Network Rail and shall not be disposed of other than in accordance with Network Rail’s written instructions, nor shall such items be used otherwise than as authorised by Network Rail in writing.
11.3 The Concessionaire acknowledges that any rights granted by Network Rail to use or exploit any of Network Rail’s Intellectual Property Rights will terminate immediately upon the termination of this Agreement for any reason. All goodwill in respect of Network Rail’s Intellectual Property Rights shall remain with Network Rail at all times.
11.4 Notwithstanding the generality of Clause 7.1, the Concessionaire will indemnify Network Rail on written demand in respect of all Liabilities suffered or incurred by or awarded against Network Rail in connection with any claim or action against Network Rail by any third party for infringements of the Intellectual Property Rights of that third party (Third Party IPR Claim).
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11.5 Network Rail agrees that:
11.5.1 it will notify the Concessionaire in writing as soon as reasonably practicable of any Third Party IPR Claim of which Network Rail has notice;
11.5.2 it will not admit any liability or agree to any settlement or compromise of a Third Party IPR Claim without the prior written consent of the Concessionaire, which will not be unreasonably withheld or delayed;
11.5.3 the Concessionaire will be entitled to assume exclusive conduct of the Third Party IPR Claim provided that the Concessionaire will consult with Network Rail in respect of the conduct of any Third Party IPR Claim and where Network Rail is listed as a defendant or co-defendant Network Rail shall have the right to require that Network Rail and the Concessionaire will conduct the defence of the Third Party IPR Claim jointly and will allow each other full access to all relevant documentation; and
11.5.4 it will provide reasonable cooperation and assistance to the Concessionaire in the defence or settlement of any Third Party IPR Claim.
12. Personnel
12.1 The Concessionaire shall:
12.1.1 provide and supervise such suitably qualified and competent employees as are necessary for the efficient and proper performance by the Concessionaire of its obligations under this Agreement;
12.1.2 provide proper training for its employees including full instruction in Network Rail’s safety requirements;
12.1.3 ensure that its employees observe the Standards and will formally discipline any employee if Network Rail shall have given notice of a breach of safety requirements by such employee. Network Rail will provide a copy of each relevant safety handbook to the Concessionaire on request;
12.1.4 ensure that its employees will dress, appear and behave in a professional manner and treat with appropriate professional courtesy all Network Rail employees, contractors, passengers, and other persons using or being employed on the Railway Network;
12.1.5 ensure that all its employees conform to the rules of conduct for Network Rail’s employees (as supplied from time to time by Network Rail) when employed on Network Rail’s premises.
12.2 Network Rail may in its absolute discretion refuse access to its premises to any person employed by the Concessionaire, its agents, sub-contractors.
12.3 The Concessionaire’s employees, agents and sub-contractors who will require access to any of Network Rail’s premises shall, at the Concessionaire’s expense, attend and pass any safety training courses approved by Network Rail as appropriate or required in relation to such access to Network Rail’s premises. The
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Concessionaire must ensure that all such individuals carry with them at all times:
12.3.1 evidence of their having passed such safety training course; and
12.3.2 such other identification or security device or pass as Network Rail may specify from time to time,
and show such evidence on demand to any person authorised by Network Rail.
13. Confidentiality and Comptroller and Auditor General
13.1 Save to the extent that it is necessary in order to comply with any obligations under this Agreement, the Concessionaire acknowledges and agrees that neither it nor its respective accountants, legal advisers and insurers shall provide a copy of this Agreement or information passed under this Agreement or disclose disseminate and/or publicise or cause or permit to be disclosed disseminated and/or publicised any of the terms and conditions of this Agreement or information passed under this Agreement in whole or in part to any individual and/or entity not a party to this Agreement except as follows:
13.1.1 in response to an order of a court of competent jurisdiction, or in response to an appropriate subpoena or discovery request issued in the course of litigation;
13.1.2 in response to an enquiry or order issued by a government or supra-governmental agency of competent jurisdiction;
13.1.3 to the extent necessary to report income to appropriate taxing authorities and/or to contest the imposition of any tax by appropriate taxing authorities;
13.1.4 to the parties’ respective accountants, legal advisers and insurers;
13.1.5 in connection with any litigation between the parties relating to this Agreement; and
13.1.6 to the extent required in order to comply with Applicable Laws and regulations.
13.2 The Concessionaire shall not make any announcement relating to this Agreement or its subject matter without the prior written approval of Network Rail except as required by law or by any legal or regulatory authority.
13.3 Nothing in this Agreement shall prevent Network Rail disclosing the Concessionaire’s Confidential Information:
13.3.1 to the Crown, any other Contracting Authority or any government department. All government departments receiving such Confidential Information shall be entitled to further disclose the Confidential Information to other government departments on the basis that the information is confidential and is not disclosed to a third party which is not part of the Crown, any Contracting Authority or any government department;
13.3.2 for the purpose of the examination and certification of Network Rail’s accounts; or
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13.3.3 for any examination pursuant to Section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which Network Rail has used its resources.
13.4 The Concessionaire shall and shall procure that its subcontractors shall provide such access to its or their books and records as may be required from time to time by the Comptroller and Auditor General of the National Audit Office for the purpose of their audit and examination of the accounts of Network Rail and its group companies, the Department for Transport and the consolidated set of financial statements for the UK public sector.
13.5 The restrictions contained in this clause shall survive the termination of this Agreement and shall continue without limit of time.
14. Termination
14.1 Network Rail may terminate this Agreement with effect from the [second] anniversary of the Commencement Date by giving the Concessionaire not less than six months’ notice in writing to that effect (such notice to expire on the [second] anniversary of the Commencement Date).
14.2 Either party may terminate this Agreement immediately by notice in writing to the other, if the other:
14.2.1 commits a material breach of any of its obligations under this Agreement and in the case of a breach capable of remedy fails to remedy the breach within thirty days of the receipt of notice from the terminating party identifying the breach and requiring its remedy;
14.2.2 is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the Concessionaire under this Agreement) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of Network Rail means that the Concessionaire may be unable to pay its debts;
14.2.3 being an individual or if the partnership or any partner (where the Concessionaire is a partnership) shall become bankrupt or in Scotland have his or its estates sequestrated or shall become apparently insolvent as defined in the Bankruptcy (Scotland) Act 1985 or shall enter into a trust deed for his or its creditors, or make a composition or arrangement with his or its creditors; and
14.2.4 in the circumstances set out in Clause 28.
14.3 Network Rail may terminate this Agreement immediately by notice in writing to the Concessionaire if:
14.3.1 the Concessionaire is in breach of any of its obligations under this Agreement (whether it is the same obligation or not and whether or not such breaches are material in nature or are remedied by the
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Concessionaire) three times or more in any 12 month period;
14.3.2 the Concessionaire is in breach of any of its obligations to make a payment to Network Rail under this Agreement;
14.3.3 the Concessionaire fails to comply with its obligations in Clause 30;
14.3.4 any death or serious life-threatening injury or injury resulting in serious and permanent disablement results from the breach and/or negligent performance of its obligations by the Concessionaire, its agents or sub-contractors provided that in the case of negligence, such negligence is established by the Health & Safety Executive or similar independent authority;
14.3.5 it has a right of termination in accordance with Schedule 4; and
14.3.6 the Concessionaire has, in the reasonable opinion of Network Rail, harmed the name or business of Network Rail.
14.4 Network Rail may terminate this Agreement in the event that it considers any of the circumstances set out in regulations 44(1)(a) or (c) of the Concession Contracts Regulations 2016 SI 2016/273 (“CCR”) as amended from time to time have arisen.
14.5 Network Rail may terminate this Agreement in the event that it considers any of the circumstances set out in regulation 44(1)(b) of CCR have arisen.
14.6 The Concessionaire shall notify Network Rail in writing immediately upon becoming aware of the circumstances referred to in clause 14.5 applying.
14.7 In the event of any termination by Network Rail in accordance with Clauses 14.2, 14.3 and 14.5, Network Rail shall be entitled to claim from the Concessionaire the additional costs, expenses and/or damages sustained by it arising from such termination, including those arising from employing and paying other persons to carry out and complete services and works and to make good defects.
14.8 As soon as reasonably practicable following notice of the termination of this Agreement being served the parties shall use all reasonable endeavours to agree a handover plan (the Handover Plan) which shall include details of:
14.8.1 the activities to be undertaken by the Concessionaire to facilitate a smooth handover of the service provision to Network Rail or a new provider of services to Network Rail similar to the Concession or any part of the Concession (a New Service Provider) and to ensure the continuity of the services;
14.8.2 a timetable to cover the Handover Plan;
14.8.3 the manner in which the handover is to take place; and
14.8.4 the handover of any equipment (which may include any keys to access Network Rail’s premises or any permits for such access), records and data necessary to perform the services provided by the Concessionaire under this Agreement in the format reasonably specified by Network Rail,
and the Concessionaire undertakes to co-operate with Network Rail and any New Service Provider in ensuring the smooth handover of the Concession.
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14.9 The Concessionaire shall calculate all payments due to Network Rail pursuant this Agreement and undertakes to pay Network Rail any amount due as soon as reasonably practicable.
15. Waiver
The failure or delay by any party to enforce at any time or for any period any of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
16. Data Protection
16.1 The Concessionaire shall take all necessary steps under the Data Protection Act 1998 and the General Data Protection Regulation (EU) 2016/679 once in force (including, where appropriate, the procurement of any consent) to allow for disclosure to appropriate Network Rail personnel of all information required by this Agreement.
If the Concessionaire is required to handle Personal Data the following Clauses 16.2 – 16.7 shall apply.
16.2 In this Clause 16 the following definitions apply until the General Data Protection Regulation (EU) 2016/679 comes into force when the definitions therein shall apply:
“Directive” means the European Data Protection Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
“Losses” means all losses, liabilities (including provision for contingent liabilities), fines, damages, costs and expenses including legal fees on a solicitor/client basis and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties;
“Personal Data” has the meaning given to such term in the Directive and relates only to personal data, or any part of such personal data, of which Network Rail is the Data Controller and in relation to which the Provider is providing services under this Agreement.
“Provider” refers to the Concessionaire, which is the data processor carrying out the work on behalf of Network Rail, the data controller.
“Provider Personnel” means all employees, officers and individuals contracted to the Provider or any of its subcontractors and involved to any extent in the performance of the Services and the performance of this Agreement;
16.3 References to “processing”, “process”, “processor” and “controller” in this clause 16 shall have the meaning set out in the Directive and the General Data Protection Regulation (EU) 2016/679 once in force. The Parties acknowledge that Network Rail is the “controller” of the Personal Data and the Provider is acting as “processor” on behalf of Network Rail.
16.4 The Provider undertakes:
16.4.1 to process the Personal Data in accordance with the provisions of this Agreement and Network Rail’s instructions from time to time;
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16.4.2 to ensure that only those Provider Personnel required by the Provider to assist it in meeting its obligations under this Agreement shall have access to the Personal Data and that such Provider Personnel have received training and instruction in the care and handling of Personal Data;
16.4.3 to assist Network Rail promptly with all data subject requests for access to Personal Data which may be received by Network Rail from time to time. Network Rail shall reimburse the Provider for any reasonable costs which the Provider incurs in complying with this requirement;
16.4.4 not to disclose the Personal Data to a third party in any circumstances other than disclosure to the Provider Personnel in accordance with this Clause 16 or disclosure at the specific request of Network Rail or if otherwise compelled by law to make such disclosure;
16.4.5 to allow its data processing facilities, procedures and documentation which relate to the processing of Personal Data, to be scrutinised by Network Rail or the auditors of Network Rail in order to ascertain compliance with this Clause 16;
16.4.6 to have in place such technical and organisational measures as are reasonably necessary and appropriate to safeguard against the unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data; and
16.4.7 to indemnify Network Rail against all Losses incurred or suffered by or made against it and whether, wholly or in part, resulting directly or indirectly from, or connected in any way with, any breach of this Clause 16.
16.5 On termination of this Agreement, for whatever reason, the Provider shall cease to use the Personal Data and shall arrange for the prompt and safe return to Network Rail (or its nominated third party) or destruction, at Network Rail’s sole option, of all Personal Data, together with all copies in its possession or control. Network Rail may require the Provider to promptly confirm in writing to Network Rail that the Provider has destroyed all copies of the Personal Data.
16.6 Where Personal Data is to be exported outside the EEA as part of any processing by or on behalf of the Provider, the Provider shall obtain prior written consent from Network Rail. Any such consent given by Network Rail will be subject to additional requirements in relation to the processing of Personal Data set out in the EU Standard Contract Clauses published by the European Commission.
16.7 The Provider will promptly notify Network Rail by telephone and within 24 hours by written notice with all relevant details reasonably available of any actual or suspected breach of security and/or of the Agreement and/or Clause 16 in relation to Network Rail Personal Data including unauthorised or unlawful access or Processing of, or accidental loss, destruction or damage of any Network Rail Personal Data.
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17. The Contracts (Rights of Third Parties) Act 1999
Without prejudice to Clause 18, no term of this Agreement is intended by the Parties to be enforceable by a third party.
18. TUPE
Notwithstanding anything to the contrary elsewhere in this Agreement:
18.1 the Concessionaire shall be responsible for and shall indemnify and keep indemnified Network Rail from and against all and any costs claims expenses damages demands actions losses and liabilities arising out of or in connection with any claim in respect of any person which arises or is alleged to arise by reason of the operation of and/or failure of the Concessionaire to comply with the Agency Workers Regulations 2010 or by reason of the operation of and/or failure of the Concessionaire to inform and consult under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) (as either Regulation may be amended or re-enacted from time to time), save to the extent that such liability arises due to the failure of Network Rail to comply with its obligations under the Regulations;
18.2 in the last 12 months prior to completion of the Services, within 28 days of Network Rail’s request, the Concessionaire shall, where TUPE is likely to apply, provide Network Rail with a list of names ages addresses and national insurance numbers of all persons who are who have been or who may be at any time concerned with the Services or any part thereof specifying their job title job description basic salary bonus and all other emoluments and benefits periods of continuous employment the percentage of the time that they have worked on this Agreement details of any agreements entered into with employee representative bodies in relation to such persons, details of all training and competency courses attended and certificates or qualifications obtained and such other requirements as Network Rail may reasonably require (altogether the “Employee Data”). Network Rail will, subject to compliance with any laws relating to data protection, be permitted to disclose any information provided to it under this clause in summary and/or anonymised form to any person who has been invited to tender for the provision of the Services (or similar services) and to any replacement Concessionaire and replacement Concessionaire’s sub-contractors;
18.3 in the last 12 months prior to completion of the Services, the Concessionaire shall (and shall procure that any Sub-Contractor shall) provide to the people engaged in the performance of this Agreement written contracts of employment or statements of terms of employment in either case complying with the requirements of Section 1 of the Employment Rights Act 1996 and retain copies of such documents together with such other documentation and PAYE records as may reasonably be required by Network Rail (“Personnel Records”) and shall where TUPE is likely to apply within 28 days of Network Rail’s request whether during the performance of the services or following the end of this Agreement (whether lawfully or otherwise) deliver up to Network Rail or to such person as Network Rail may nominate the Employee Data such copies of the Personnel Records as may be required by Network Rail and to the extent not otherwise provided any employee liability information pursuant to and in accordance with Regulation 11 of TUPE. Network Rail may communicate such information to persons intending to tender to execute works of the nature of the services;
18.4 the Concessionaire shall not (and shall procure that any Sub-Contractor shall not)
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(where TUPE is likely to apply) in the last 6 months prior to completion of the services without the prior written permission of Network Rail vary or purport or promise to vary (in the employee’s favour) the terms of the contract of employment of any person engaged wholly or principally in the execution of the services;
18.5 the Concessionaire shall not (and shall procure that any Sub-Contractor shall not) (where TUPE is likely to apply) without the prior written consent of Network Rail create or grant or promise to create or grant terms or conditions of employment for any new employee engaged wholly or principally in the execution of the services if and to the extent that such terms or conditions are materially different to the terms or conditions of employment of equivalent or nearest equivalent existing employees (which themselves comply with Sub-Clause 18.4) at the date of commencement of employment of such new employee;
18.6 the Concessionaire shall (and shall procure that any Sub-Contractor shall) (where TUPE is likely to apply) at all times comply with its information and consultation obligations under Regulation 13 of TUPE; and
18.7 the Concessionaire shall indemnify and keep indemnified Network Rail and any successor Concessionaire against all costs claims expenses damages demands actions losses and liabilities arising out of or in connection with any claim or demand arising out of or in connection with any act or omission of the Concessionaire or any Sub-Contractor and which Network Rail or the successor Concessionaire incurs:
18.7.1 in relation to any one or more employees whose employment has transferred or is alleged to have transferred to Network Rail and/or a successor Concessionaire pursuant to TUPE and/or this Agreement; and/or
18.7.2 as a result of the Concessionaire’s breach of these Clauses 18.4, 18.5 and/or 18.6;
and such a successor Concessionaire can directly enforce the indemnity in its favour provided for by this Sub-Clause 18.7.
19. Notices
19.1 All notices given under this Agreement shall be in writing and shall be served by personal delivery by pre-paid registered or recorded delivery post (or registered airmail in the case of an address for service outside the United Kingdom) to the persons and the addresses set out in the Appendix (or as otherwise notified by the relevant party hereunder). A notice shall be deemed to have been received if::
19.1.1 delivered personally at the time of delivery;
19.1.2 pre-paid recorded delivery or registered post 48 hours from the date of posting; and
19.1.3 registered airmail 5 days from the date of posting.
19.2 Provided that if deemed receipt occurs before 9am on a business day the notice shall be deemed to have been received at 9am on that day and if deemed receipt occurs after 5pm on a business day or on any day that is not a business day the notice shall be deemed to have been received at 9am on the next business day. For the purpose of this Clause “business day” means any day that is not a Saturday, a Sunday or a public holiday in the place at or to which the notice is left or sent.
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20. Entire Agreement
This Agreement and the documents referred to in it constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of this Agreement.
21. Changes
No change to this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
22. Governing Law Jurisdiction and Limitations
This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.
23. Compliance
General
23.1 The Concessionaire shall comply with all applicable anti-bribery, anti-corruption and anti-slavery legislation including the Bribery Act 2010 and Modern Slavery Act 2015.
23.2 The Concessionaire shall comply with Network Rail’s Code of Business Ethics and Code of Conduct, corporate hospitality, conflicts of interests and speak out (whistleblowing) policies and any updates thereof.
Bribery Act Compliance
23.3 The Concessionaire shall maintain and enforce its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with all applicable anti-bribery and anti-corruption legislation. Adequate procedures shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of the Act).
23.4 The Concessionaire shall use reasonable endeavours to ensure that all persons associated with the Concessionaire (as defined by section 8 of the Bribery Act 2010) including any subcontractors and suppliers comply with this clause.
Modern Slavery Act Requirements
23.5 The Concessionaire shall implement due diligence procedures for its own suppliers, subcontractors and other participants in its supply chains, to ensure that there is no slavery or human trafficking in its supply chains.
23.6 The Concessionaire shall use reasonable endeavours not to purchase any raw materials, resources or products from any country that has been sourced from producers or manufacturers using forced labour in its operations or practice.
Remedies
23.7 Any breach of this clause shall be deemed a material breach under this Agreement.
24. Equality and Diversity
24.1 The Concessionaire shall perform its obligations under this Agreement in accordance with:
24.1.1 all applicable equality Law (whether in relation to age, disability, gender
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reassignment, marriage or civil partnership status, pregnancy or maternity, race, religion or belief, sex or sexual orientation (each a “Relevant Protected Characteristic”) or otherwise);
24.1.2 Network Rail’s equality, diversity and inclusion policy as published by Network Rail from time to time; and
24.1.3 any other requirements and instructions which Network Rail reasonably imposes in connection with any equality obligations imposed on Network Rail at any time under applicable equality Law.
24.2 The Concessionaire shall take all reasonable steps to secure the observance of Clause 24.1 above by its employees, agents, representatives and Sub-Contractors.
24.3 The Concessionaire acknowledges that Network Rail is under a duty under section 149 of the Equality Act 2010 to have due regard to the need to eliminate unlawful discrimination (on the grounds of a Relevant Protected Characteristic); to advance equality of opportunity, and to foster good relations, between persons who share a Relevant Protected Characteristic and persons who do not share it. In performing its obligations under this Agreement, the Concessionaire shall assist and co-operate with Network Rail where possible in satisfying this duty.
25. Freedom of Information
25.1 The Concessionaire acknowledges that Network Rail may be required, under the Freedom of Information Act 2000 and/or the Environmental Information Regulations 2004 (collectively, the “Information Acts”) to respond to requests for information relating to the subject matter of this Agreement.
25.2 The Concessionaire shall (and shall procure that its Sub-Contractors shall):
25.2.1 provide all necessary assistance and cooperation as reasonably requested by Network Rail to enable it to comply with its obligations under the Information Acts;
25.2.2 transfer to Network Rail all requests for information relating to this Agreement that it receives as soon as practicable and in any event within two (2) Working Days of receipt;
25.2.3 provide Network Rail with a copy of all information belonging to Network Rail requested in the request for information which is in its possession or control in the form that Network Rail requires within five (5) Working Days (or such other period as Network Rail may reasonably specify) of Network Rail requesting such information; and
25.2.4 not respond directly to a request for information unless authorised in writing to do so by Network Rail.
25.3 The Concessionaire acknowledges that Network Rail may be required under the Information Acts to disclose information (including Confidential Information) without consulting or obtaining consent from the Concessionaire.
25.4 Network Rail shall take reasonable steps to notify the Concessionaire of a request for Confidential Information (in accordance with the Secretary of State’s section 45 Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom of Information Act 2000) to the extent that it is permissible and reasonably
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practical for it to do so and shall consider any reasonable and timely representations made by the Concessionaire regarding the application of exemptions to the requested information.
25.5 Notwithstanding any other provision in this Agreement, Network Rail shall be responsible for determining in its absolute discretion whether any Confidential Information and/or any other information is exempt from disclosure in accordance with the Information Acts.
26. Information Security
The Concessionaire shall comply with Network Rail’s Security Principles for Supplier Selection and Management Standard when stated as being applicable in the Appendix.
27. London Living Wage
27.1 The Concessionaire shall and shall also procure that its relevant Supply Chain Parties (if any) shall:
27.1.1 ensure that none of its workers or its Supply Chain Parties workers engaged in the performance of the Agreement in the Greater London Area (but not otherwise) and who would also satisfy the eligibility criteria set by the Living Wage Foundation (or any replacement thereof) is paid an hourly wage (or equivalent of an hourly wage) less than the London Living Wage; and
27.1.2 co-operate and provide all reasonable assistance to Network Rail in monitoring the effect of the London Living Wage.
27.2 Unless stated otherwise in the Appendix, if the London Living Wage increases during the term of this Agreement, the Supplier shall not be entitled to adjust the Agreement and the parties agree and acknowledge that any increases in the London Living Wage anticipated during the term of this Agreement have been factored in.
27.3 Any failure by the Concessionaire to comply with the provisions of this clause shall be treated as a material breach under this Agreement.
28. Force Majeure
Neither party shall have any liability under or be deemed to be in breach of the Agreement for any delays or failures in performance of the Agreement which result from circumstances beyond the reasonable control of the party affected. Each party shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than two months, either party may terminate the Agreement by written notice to the other party.
29. Conflict of Interest
The Concessionaire must promptly advise Network Rail’s Representative if it considers that the continued performance of the Concession will result in a conflict of interest with any of its contractual arrangements with other clients.
30. Security Account
If stated as applicable in the Appendix, on or before the Commencement Date, the Concessionaire shall as continuing security for the payment and discharge of all indebtedness, monies, obligations and actual liabilities which are at any time due, owing or incurred by the
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Concessionaire to Network Rail, comply with the requirements in Schedule 5.
31. Investment Work
If stated as applicable in the Appendix:
31.1 Network Rail shall notify the Concessionaire of its Investment Criteria for Investment Work from time to time.
31.2 Network Rail may require the Concessionaire to, and the Concessionaire shall have a right to, submit proposals for Investment Work in connection with the Concession.
31.3 Network Rail reserves the right not to approve any proposals made by the Concessionaire which in Network Rail’s reasonable opinion are detrimental to or devalue the Sites or are detrimental to or devalue existing sites or structures for other concessionaires of Network Rail.
31.4 The Concessionaire shall submit to Network Rail a written proposal, to accord with the Investment Criteria and Network Rail’s procurement process (as notified to the Concessionaire from time to time), for any Investment Work giving full details of the proposed work, timing and projected build costs (including any contingency costs) and shall demonstrate to Network Rail that projected build costs offer best value for such Investment Work.
31.5 As soon as practicable after receiving the proposal, Network Rail shall either confirm that the proposal has sufficient information for Network Rail to consider the proposal or otherwise identify in writing to the Concessionaire such information as Network Rail reasonably requires to verify projected build costs.
31.6 The Concessionaire shall submit any further information requested by Network Rail as soon as reasonably practicable.
31.7 As soon as reasonably practicable Network Rail shall inform the Concessionaire in writing of its reasoned decision as to whether it intends to invest in such proposal.
31.8 If Network Rail decides to proceed with any Investment Work (being Called Off Investment Work), the Concessionaire shall carry out the Investment Work in accordance with the proposal. Ownership of any new, substituted, converted or altered Sites or Structures resulting from any Investment Work shall vest in Network Rail.
31.9 Network Rail reserves the right to approve (such approval not to be unreasonably withheld or delayed) any contracts being entered into by the Concessionaire to deliver the Investment Work.
31.10 The reasonable costs actually and properly incurred by the Concessionaire directly in relation to Called Off Investment Work satisfactorily completed in a Concession Year and capped at the costs in the applicable proposal approved by Network Rail shall be the Investment Work Costs. No additional costs or charges (including, if any, any costs relating to planning applications or consents) for any Called Off Investment Work will comprise Investment Work Costs unless approved in writing by Network Rail prior to those costs or charges being incurred. The Concessionaire shall provide copies of any third party invoices and receipts for the Called Off Investment Work.
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32. Repairs and Maintenance of Structures
If stated as applicable in the Appendix;
32.1 The Concessionaire shall repair and maintain all Structures, including works as detailed in the Schedule 6, in accordance with the Standards or such other reasonable requirements as may be notified by Network Rail and in accordance with any programme agreed between the parties.
32.2 The Concessionaire shall bear the cost of all repairs to and maintenance of Structures except those repairs required because of negligence on the part of Network Rail. The Concessionaire will carry out all repairs required as soon as reasonably practicable on their coming to its notice.
32.3 Structures shall be replaced on a like for like basis unless specified otherwise and to modern standards.
32.4 The Concessionaire shall, on Network Rail’s request, promptly remove and restore any Structure requiring refurbishment and Network Rail will bear the Concessionaire’s reasonable costs of doing so.
32.5 The Concessionaire shall undertake surveys of the Structures required by the Standards or otherwise on the reasonable request of Network Rail in accordance with Schedule 6.
32.6 The Concessionaire shall update the Asset Register in accordance with Network Rail’s reasonable instructions, to ensure that it is kept as up-to-date, complete and as accurate as possible. The Concessionaire shall provide an updated version of the Asset Register to Network Rail on a Quarterly basis.
32.7 Ownership of all Structures shall unless otherwise agreed in writing remain with or vest in Network Rail.
33. Access to Network Rail’s Premises
33.1 Subject to Clause 12.2, the Concessionaire shall have access over such parts of Network Rail’s premises at all reasonable times as shall be necessary for the purposes of carrying out its obligations under this Agreement, subject at all times to the Concessionaire observing, and procuring that any agent or contractor of the Concessionaire also observes, all of Network Rail’s health and safety obligations and regulations.
33.2 The Concessionaire shall not, and shall ensure that its employees, agents and contractors shall not whilst on Network Rail’s premises cause any damage to any of Network Rail’s property wherever situated or to the property of any third party.
33.3 The Concession shall not affect Network Rail’s ownership, possession and control of any Site, nor shall it be the grant of any interest in and/or right of occupation, save as expressed in this Agreement.
34. Disposal of Sites
If stated as applicable in the Appendix;
34.1 Nothing contained in this Agreement shall restrict the right of Network Rail to dispose of any Site on which a Structure is erected.
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34.2 Unless otherwise agreed by Network Rail, the Concessionaire will immediately cease to have any interest or right in such Site or Structure upon Network Rail vacating the Site pursuant to such disposal and giving notice of the same to the Concessionaire.
34.3 The Concessionaire shall ensure that Sites will be left safe, clean and tidy.
35. Electrical and Other Services
35.1 Responsibility for the supply of, and payment for, electricity and any other services (including telecommunications services) or utilities used by or in relation to the Agreement, and for the costs of any maintenance, cleaning and repairing of such supplies of service or utilities shall be as set out in Schedule 1.
35.2 The Concessionaire shall comply with the requirements in Schedule 1.
35.3 Where any electrical or other service supply is provided by Network Rail the relevant charges relating to the operation of the Concession will be assessed and charged at such times as may be agreed from time to time and payment will be due to Network Rail (as applicable) within 30 days of any notification to the Concessionaire of such charges.
36. Accounts and Records
36.1 The Concessionaire must maintain full and proper accounting records of all sums received or payable in connection with any activity or service which the Concessionaire is required or authorised by this Agreement to supply or receive. In relation to Bad Debts, the Concessionaire shall not be entitled to alter the accounting standards by which such Bad Debts are determined without the prior written consent of Network Rail, such consent not to be unreasonably withheld.
36.2 The Concessionaire shall grant Network Rail or any agent employed by Network Rail full access on reasonable notice to its books of account and records as required to establish or verify any information that the Concessionaire is obliged to supply to Network Rail pursuant to this Agreement.
36.3 The Concessionaire will maintain an accurate and up-to-date database of information relating to the Concession.
36.4 The Concessionaire will maintain all records and plans of all relevant Structures as set out in Schedule 1.
36.5 The Concessionaire shall ensure that all data relating to the Concession is stored in such a manner to ensure that such data is not lost in the event of any disaster, including, without limitation, fire or flood. The Concessionaire shall back-up any data stored electronically on a daily basis.
37. Review Meetings and Reporting
37.1 The Concessionaire shall attend all review meetings and submit reports required by Network Rail including those detailed in Schedule 7.
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SCHEDULES
Schedule 1 Scope of the Concession
Schedule 2 Contract Requirements HSEA Conditions
Schedule 3 Fees and Payment Terms
Schedule 4 Key Performance Indicators
Schedule 5 Security Account
Schedule 6 Repairs and Maintenance
Schedule 7 Review Meetings and Reporting
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SCHEDULE 1: SCOPE OF THE CONCESSION
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SCHEDULE 2: CONTRACT REQUIREMENTS HSEA CONDITIONS
Health & Safety
1.1 The Concessionaire shall ensure that its activities carried out under this Agreement, will cause the minimum damage and inconvenience to Network Rail, shall not interfere with the activities of Network Rail and will not endanger the safety of Network Rail’s operation, impede Network Rail’s employees in the execution of their duties, or otherwise interfere with the Railway Network.
1.2 The Concessionaire shall ensure that all materials used in connection with this Agreement meet Network Rail’s fire, safety and other regulations and all other relevant fire, safety and other regulations.
1.3 The Concessionaire shall fully comply with any and all safety procedures issued by Network Rail from time to time (including any set out in the Standards) and shall procure that its employees, agents and sub-contractors shall comply with such procedures.
1.4 Network Rail (or a third party nominated by Network Rail) may conduct audits of the Concessionaire’s compliance with such procedures from time to time and the Concessionaire will, and shall ensure that its employees, agents and sub-contractors will, promptly comply with any corrective actions required as a result of such audit. Subject to the provision by Network Rail of a VAT invoice in respect of the costs incurred in relation to such audit, the Concessionaire shall pay such costs (including the auditor’s fee) on demand, provided that the Concessionaire shall not be obliged to pay the costs of more than one such audit in any Concession Year.
1.5 The Concessionaire shall:
1.5.1 be responsible for determining which codes, accreditations, registrations, certifications and approvals are required by it and the Supply Chain Parties from time to time in relation to its activities under this Agreement and shall liaise with Achilles Group Limited to verify its understanding of what is required;
1.5.2 maintain RISQS Approval and hold all codes, accreditations, registrations, certifications and other approvals which are required from time to time in relation to its activities under this Agreement;
1.5.3 ensure that, to the extent required, all Supply Chain Parties:
(a) maintain RISQS Approval and registration with Achilles Group Limited; and
(b) hold all required codes, accreditations, registrations, certifications and approvals;
1.5.4 ensure that any person who is a Supply Chain Party and who requires access to the Sites shall maintain all required competencies throughout their employment (including Personal Track Safety training and certification); and
1.5.5 ensure that any person who is a Supply Chain Party and who does not comply with Clause 1.5.4 shall not be permitted to access any Site at any time.
1.6 Any advice given by Network Rail to the Concessionaire in relation to the codes, accreditations, registrations, certifications and approvals which the Concessionaire and the
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Supply Chain Parties require shall not relieve the Concessionaire of its obligations under Clause 1.5.
1.7 If, at any time the Concessionaire or any Supply Chain Party fails to maintain the RISQS Approval, then Network Rail may at its discretion require any activity carried out by the Concessionaire or the relevant Supply Chain Party in connection with the operation of the Concession to be monitored or supervised by Network Rail (or Network Rail’s authorised representative). The Concessionaire will indemnify Network Rail in full and on demand in respect of all costs incurred by Network Rail for any monitoring, supervision or management costs and any reasonable administration costs.
1.8 The Concessionaire shall:
1.8.1 prepare a Health and Safety Management Plan detailing its activities which ensure compliance by the Concessionaire and the Supply Chain Parties with all health and safety obligations under Applicable Law in relation to the performance of its obligations under this Agreement (the Health and Safety Management Plan);
1.8.2 provide an outline copy of the Health and Safety Management Plan to Network Rail by [], and provide the complete Health and Safety Management Plan to Network Rail by [];
1.8.3 amend the Health and Safety Management Plan from time to time to ensure that it continues to comply with all health and safety obligations under Applicable Law in relation to the performance of its obligations under the Concession Agreement;
1.8.4 make any changes to the Health and Safety Management Plan which Network Rail reasonably requires from time to time; and
1.8.5 comply with, and ensure compliance by the Supply Chain Parties with, the Health and Safety Management Plan (as amended from time to time) at all times in the performance of its obligations under the Concession Agreement.
1.9 Any review or approval of the Health and Safety Management Plan by Network Rail shall not relieve the Concessionaire of its health and safety compliance obligations under this Agreement or Applicable Law.
Maintenance and Safety of Sites
1.1 The Concessionaire shall, and where appropriate shall ensure that any sub-contractor shall:
1.1.1 promptly remove all unnecessary materials and any rubbish resulting from the operation of the Concession from Network Rail’s premises and comply with all the provisions of the Environmental Protection Act 1990 and the Pollution Prevention and Control Act 1999;
1.1.2 use reasonable endeavours, as soon as reasonably practicable, to keep Network Rail’s property immediately adjacent to any Structure clean of fly posting;
1.1.3 not do anything that may put Network Rail in breach of any of its statutory duties and obligations including those under the Environmental Protection Act 1990 and the Pollution Prevention and Control Act 1999;
1.1.4 provide all equipment required for the safe performance of its obligations under this Agreement and to the required standards for the exercise of rights granted by this Agreement and shall at all times maintain all equipment used in the provision of the
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Concession in a clean, safe and fully operational condition and shall ensure that such cleaning and maintenance is carried out in accordance with any applicable manufacturer’s guidelines and any other reasonable requirements which may be notified by Network Rail to the Concessionaire; and
1.1.5 provide adequate and suitable storage facilities for all Advertisements prior to posting on the Advertising Space and for all materials and equipment used by the Concessionaire in the performance of its obligations under this Agreement.
Personnel
The concessionaire shall;
1. ensure that its employees are not exposed to risks to their health or safety whilst they are on Network Rail’s premises and comply with all Applicable Law applicable to their work on Network Rail’s premises;
2. report to Network Rail and all other appropriate authorities any accidents or injuries occurring to its employees whilst on Network Rail’s premises in the course of their employment;
3. undertake safety audits in accordance with Network Rail’s Company Standards and other regulations, so far as applicable to the Concessionaire, as if the Concessionaire were part of Network Rail;
4. provide necessary risk controls including a lookout, flagman or COSS (Controller of Site Safety) or other personnel, at its own expense , where necessary in accordance with the rail industry's health and safety regulations; and
5. report to Network Rail and all other appropriate authorities any accidents or injuries occurring to the employees engaged in the Concessionaire's activities whilst on any Site or on Network Rail's premises in the course of their employment.
Environment
1. The Concessionaire shall comply with and shall ensure that any sub-contractors comply with the latest published version of Network Rail’s environmental policies and any applicable Standards.
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SCHEDULE 3 FEES AND PAYMENT TERMS
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SCHEDULE 4 KEY PERFORMANCE INDICATORS
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SCHEDULE 5 SECURITY ACCOUNT
1.1 On or before the Commencement Date, the Concessionaire shall as continuing security for the payment and discharge of all indebtedness, monies, obligations and actual liabilities which are at any time due, owing or incurred by the Concessionaire to Network Rail that may arise in relation to payments of the Minimum Guarantee:
1.1.1 set up a separate account in its own name (Security Account);
1.1.2 deposit in such account a sum which is equal to the greater of:
(a) £[]; and
(b) an amount equal to one quarter of the Minimum Guarantee for the then current Concession Year;
1.1.3 assign by way of security to Network Rail all sums (denominated in whatever currency) together with all interest and other amounts accruing on such sums for the time being and from time to time standing to the credit of the Security Account and all present and future rights, titles and benefits of the Concessionaire whatsoever in such amounts,
with the intent that such sums in the Security Account shall effectively be assigned by way of security to Network Rail until all amounts owing to Network Rail by the Concessionaire in relation to the Minimum Guarantee have been unconditionally and irrevocably paid and discharged in full.
1.2 On or before each anniversary of the Commencement Date, the Concessionaire shall (having taken into account all interest accrued to the Security Account in the preceding Concession Years) deposit such additional amounts in to the Security Account (if required) so that amount deposited shall not at any time in respect of the relevant Concession Year, be less than a sum which is equal to the greater of:
(a) £[]; and
(b) an amount equal to one quarter of the Minimum Guarantee for the then current Concession Year.
The provisions of this Clause shall result in an upwards only adjustment (if any adjustment is in fact required).
1.3 As soon as reasonably practicable after payment and discharge of all monies, obligations and liabilities whatsoever which are due, owing or incurred by the Concessionaire to Network Rail in relation to the Minimum Guarantee, Network Rail shall reassign the amount standing to the credit of the Security Account (including all entitlements to interest) to the Concessionaire.
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SCHEDULE 6 REPAIRS AND MAINTENANCE (where stated in the Appendix as being applicable)
1. Repairs and maintenance include;
1.1 replacing or repairing any Structure (or part of a Structure) including struts and board walks;
1.2 the illumination of existing Structures (including the associated costs of new wiring fundamental to the illumination);
1.3 the repositioning of existing Structures;
1.4 work required to implement changes in health and safety legislation which is necessary to enable the continued use of any Structure;
1.5 painting and other decoration;
1.6 litter removal and other cosmetic activities including the removal of graffiti, dust, stickers, fly-posters and other litter from the Structures;
1.7 repairs and renewals required as a result of acts of vandalism;
1.8 repairs required as a result of weather damage;
1.9 replacement of bulbs, lighting, screens, engines and electrical devices following their expiry or when they are beyond economic repair;
1.10 any landscaping and gardening in relation to the Structures; and
1.11 any other work undertaken to ensure that the Advertising Space maintains its standard of performance.
2. Surveys
2.1 The Concessionaire shall undertake a detailed survey of the Structures and prepare a detailed inspection report recording the condition of each Structure and the maintenance, repairs, replacement or renewals required to ensure that each Structure is kept to a standard equivalent to new, save for reasonable wear and tear (Detailed Inspection Report). A first Detailed Inspection Report will be completed (and delivered to Network Rail if so required) within six Months of the date of this Agreement.
2.2 The Concessionaire shall undertake a visual survey in each Concession Year of the Structures and prepare a visual inspection report recording the condition of each Structure and the maintenance, repairs, replacement or renewals required to ensure that each Structure is kept to a standard equivalent to new, save for reasonable wear and tear (Visual Inspection Report). A first Visual Inspection Report will be completed (and delivered to Network Rail if so required) within three Months of the date of this Agreement and then within 12 months of the preceding Visual Inspection Report or Detailed Inspection Report, whichever is the later.
2.3 The Concessionaire shall, by no later than the end of the third Concession Year and at least once every three (3) years thereafter, undertake surveys of Structures and Sites and prepare inspection reports recording the condition of each Structure and the maintenance, repairs, replacement or renewals required to each Structure (Detailed Inspection Report). The Concessionaire shall provide copies of any Detailed
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Inspection Reports produced to Network Rail. If the Concessionaire fails for any reason to undertake surveys and prepare any of the Detailed Inspection Reports in accordance with this Clause Network Rail shall be entitled to do so (itself or using one or more contractors) and its costs of so doing (as notified by Network Rail to the Concessionaire) shall be borne by the Concessionaire (and shall not comprise Direct Costs).
3. The Concessionaire shall maintain detailed files in relation to each Site, including copies of any Detailed Inspection Reports. All information in such files shall belong to Network Rail and the Concessionaire shall transfer copies of all such files to Network Rail promptly on request.
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SCHEDULE 7 REVIEW MEETINGS AND REPORTING
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