Avanti West Coast Trains Limited Consolidated TAC up to 27Th SA As
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TRACK ACCESS CONTRACT (PASSENGER SERVICES) Dated 1st September 2011 Between NETWORK RAIL INFRASTRUCTURE LIMITED and The Secretary of State for Transport As amended by 1st Supplemental dated 16th November 2012 2nd Supplemental dated 5th December 2012 Notice to amend Schedule 1 dated 7th December 2012 3rd Supplemental dated 12th February 2013 Amendment Notice dated March 2013 5th Supplemental dated 16th December 2013 6th Supplemental dated 18th August 2013 (superseded) 7th Supplemental dated 15th October 2013 8th Supplemental dated 1st April 2014 9th Supplemental dated 22nd September 2014 10th Supplemental dated 4th December 2014 11th Supplemental dated 12th May 2015 12th Supplemental dated 24th August 2015 13th Supplemental dated 14th January 2016 14th Supplemental dated 1st April 2016 15th Supplemental dated 9th February 2016 16th Supplemental dated 6th March 2016 17th Supplemental dated 23rd December 2016 18th Supplemental dated 12th April 2016 Page 1 of 220 19th Supplemental dated 26th June 2017 21st Supplemental dated 18 April 2018 (following ORR’s letter of direction, dated 04th April 2018) 22nd Supplemental dated 04th May 2018 24th Supplemental dated 11th December 2018 26th Supplemental dated 18th March 2019 27th Supplemental dated 12th December 2019 Page 2 of 220 Contents 1 INTERPRETATION 12 1.1 Definitions 12 1.2 Interpretation 17 1.3 Indemnities 18 2. NETWORK CODE AND TRACTION ELECTRICITY RULES 18 2.1 Incorporation 18 2.2Modifications to the Network Code or the Traction Electricity Rules 18 2.3 Compliance by other operators 18 3 CONDITIONS PRECEDENT AND DURATION 18 3.1 Effective date 18 3.2 Conditions precedent to Clause 5 18 3.3 Obligations to satisfy conditions precedent to Clause 5 19 3.4Consequences of non-fulfilment of conditions precedent to Clause 5 19 3.5 Expiry 19 3.6 Suspension and termination 19 4 STANDARD OF PERFORMANCE 19 4.1 General standard 19 4.2 Good faith 20 Page 3 of 220 5 PERMISSION TO USE 20 5.1 Permission to use the Routes 20 5.2 Meaning 20 5.3 Permission under Clauses 5.2(e) and 5.2(f) 20 5.4 Changes to Applicable Engineering Access Statement and Applicable Timetable Planning Rules 21 5.5 Engineering Access Statement, Timetable Planning Rules and Restrictions of Use 21 5.6 The Services and the Specified Equipment 21 5.7 Performance 21 5.8 Stabling 21 5th 5.9 Relevant Schedule 8 Modifications 21 6 OPERATION AND MAINTENANCE OF TRAINS AND NETWORK 21 6.1 General 21 6.2 Trespass, vandalism and animals 21 6.3 Safety 22 6.4 Use of Railway Code Systems 22 7 TRACK CHARGES AND OTHER PAYMENTS 22 8 LIABILITY 22 8.1 Performance Orders in relation to breach 22 8.2 Compensation in relation to breach 22 Page 4 of 220 9 NOT USED 23 10 LIABILITY - OTHER MATTERS 23 10.1 Train Operator indemnity 23 10.2 Network Rail indemnity 23 11 RESTRICTIONS ON CLAIMS 23 11.1 Notification and mitigation 23 11.2 Restrictions on claims by Network Rail 23 11.3 Restrictions on claims by Train Operator 24 11.4 Restriction on claims by both parties 24 11.5 Limitation on liability 25 11.6 Claims Allocation and Handling Agreement 25 12 GOVERNING LAW 25 13 DISPUTE RESOLUTION 25 1st 13.1 ADRR 25 13.2 Unpaid sums 26 1st 13.3 Performance Orders 26 1st 13.4 Remedies 27 1st 13.5 Exclusion of applications on preliminary points of law 27 14 CONFIDENTIALITY 27 14.1 Confidential Information 27 14.2 Entitlement to divulge 27 14.3 Return of Confidential Information 28 Page 5 of 220 14.4 Retention or destruction of Confidential Information 28 14.5 Ownership of Confidential Information 29 15 ASSIGNMENT AND NOVATION 29 15.1 Assignment 29 15.2 Novation 29 15.3 Novation terms 29 16 PAYMENTS, INTEREST AND VAT 30 16.1 Payment 30 16.2 Interest 30 16.3 VAT 30 17 FORCE MAJEURE EVENTS 31 17.1 Meaning of Force Majeure Event 31 17.2 Nature and extent of relief for Force Majeure 32 17.3 Entitlement to Force Majeure relief 32 17.4 Procedure for claiming relief 32 17.5 Force Majeure Notices and Reports 32 17.6 Mitigation 33 17.7 Duration of relief for force majeure 33 17.8 Availability of Performance Order 34 Page 6 of 220 18 MISCELLANEOUS 34 18.1 Non waiver 34 18.2 Variations 34 18.3 Entire contract and exclusive remedies 35 18.4 Notices 36 18.5 Counterparts 37 18.6 Survival 37 18.7 Contracts (Rights of Third Parties) Act 1999 37 19 TRANSITION 37 19.1 Corresponding Rights 37 19.2 Definitions 38 Page 7 of 220 20 DELETED24TH 39 SCHEDULE 1: CONTACT PARTICULARS 19TH 40 1. NETWORK RAIL’S ADDRESS FOR SERVICE OF NOTICES IS: 40 NETWORK RAIL INFRASTRUCTURE LIMITED 1, EVERSHOLT STREET LONDON NW1 2DN 40 SCHEDULE 2: THE ROUTES 5TH 41 SCHEDULE 3: COLLATERAL AGREEMENTS 42 SCHEDULE 4: ENGINEERING ACCESS STATEMENT, TIMETABLE PLANNING RULES AND RESTRICTIONS OF USE 43 PART 1: NOT USED 43 PART 2: NOT USED 43 PART 3: COMPENSATION FOR RESTRICTIONS OF USE 43 PART 4: NOT USED 86 PART 5: ACCESS CHARGE SUPPLEMENT FOR RESTRICTIONS OF USE 86 SCHEDULE 5: THE SERVICES AND THE SPECIFIED EQUIPMENT 99 1 Definitions 99 2 Passenger Train Slots 103 3 Tables 3.1 to 3.3 – not used 114 4 Calling Patterns 114 5 Specified Equipment 123 Tables 6.1 to 8.6 – not used 124 SCHEDULE 6: EVENTS OF DEFAULT, SUSPENSION AND TERMINATION 125 1 Events of Default 125 2 Suspension 126 Page 8 of 220 3 Termination 128 4 Consequence of termination 130 SCHEDULE 7: TRACK CHARGES AND OTHER PAYMENTS 131 PART 1: INTERPRETATION 131 SCHEDULE 8: PERFORMANCE REGIME 168 1 Interpretation 168 2 Calculation of Minutes Late 172 3 Calculation of Minutes Delay 172 4 Recording of performance information 173 5 Allocation of responsibility for Minutes Delay and Cancelled Stops 174 6 Statement of allocated responsibility 178 7 Allocation of Minutes Late to Network Rail 179 8 Allocation of Minutes Late to the Train Operator 179 9 Network Rail Performance Sums 180 10 Train Operator Performance Sums 182 11 Notification of Performance Sums 183 12 Payment procedures 183 13 Payment rates 184 14 Not used 184 15 Notices 184 Page 9 of 220 16 Disputes 185 17 Amendments to Appendix 1 185 18. Compensation for sustained poor performance 188 19 SPP Indexation 189 SCHEDULE 9: LIMITATION ON LIABILITY 196 SCHEDULE 10: NETWORK CODE AND TRACTION ELECTRICITY RULES MODIFICATIONS 199 1 Automatic effect 199 2 Modification notice 199 3 Adaptation procedure 199 4 Procedural matters 201 5 Definitions 203 SCHEDULE 11: TASS 204 1 Definitions 204 2 Background and purpose 206 3 Ownership and maintenance of Balises 206 4 TASS System 207 5 Changes 208 6 Schedule 8 209 7 Systemic failure 209 8 Provision of information 209 Page 10 of 220 9 Use of Balises by third party operators 211 SCHEDULE 12: RELEVANT SCHEDULE 7 MODIFICATIONS 212 1. Automatic effect 212 2. Procedures governing Relevant Schedule 7 Modifications 212 3. Procedural matters 213 4 Definitions 213 SCHEDULE 13: RELEVANT SCHEDULE 8 MODIFICATIONS 5TH 215 1. Automatic effect 215 2. Procedures governing Relevant Schedule 8 Modifications 215 3. Procedural matters 217 4. Definitions 219 Page 11 of 220 THIS CONTRACT is made the 1st September 2011 BETWEEN: (1) Network Rail Infrastructure Limited, a company registered in England under number 2904587 having its registered office at Kings Place, 90 York Way, London, N1 9AG (“Network Rail”); and (2) The Secretary of State for Transport of Great Minster House, 76 Marsham Street, London SW1P 4DR (the “Train Operator”). WHEREAS: (A) Network Rail is the owner of the Network; and (B) Network Rail has been directed by ORR to grant to the Train Operator permission to use certain track comprised in the Network on the terms and conditions of this contract. IT IS AGREED AS FOLLOWS: 1 INTERPRETATION 1.1 Definitions In this contract unless the context otherwise requires: “Access Agreement” has the meaning ascribed to it in Part A of the Network Code; 26th “access charges review” has the meaning ascribed to it by Schedule 4A to the Act; “Access Dispute Resolution Rules” and “ADRR” have the meaning ascribed to them in Part A of the Network Code; “Access Proposal” has the meaning ascribed to it in Part D of the Network Code; “Act” means the Railways Act 1993; “Affected Party” has the meaning ascribed to it in Clause 17.1; “Affiliate” means, in relation to any company: (a) a company which is either a holding company or a subsidiary of such company; or (b) a company which is a subsidiary of a holding company of which such company is also a subsidiary, and for these purposes “holding company” and “subsidiary” have the meanings ascribed to them in section 1159 of the Companies Act 2006; “Ancillary Movements” has the meaning ascribed to it in Part D of the Network Code; “Applicable Engineering Access Statement” means the Engineering Access Statement in force in respect of the Routes on 1st April 2012, as from time to time amended or replaced under Part D of the Network Code; Page 12 of 220 “Applicable Timetable Planning Rules” means the Timetable Planning Rules in force in respect of the Routes on 1st April 2012, as from time to time amended or replaced under Part D of the Network Code; “Applicable Timetable” has the meaning ascribed to it in Schedule 8; “associate” has the meaning ascribed to it in section 17 of the Act; “Claims Allocation and Handling Agreement” means the agreement of that name approved by ORR; “Collateral Agreements” means the agreements and arrangements listed in Schedule 3; “Confidential Information” means information relating to the affairs of one party to this contract or any of its Affiliates which has been provided by any such person to the