Transport for LondonPPP Contracts
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Dispute Resolution Agreement (Amended and Restated) |
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Recital
AMENDED AND RESTATED AGREEMENT made on 31 DECEMBER 2002 (B) The parties to this Agreement have agreed that any Dispute be resolved in the manner set out in this Agreement. (C) This Agreement is supplemental to each of the Contracts. IT IS AGREED: |
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Interpretation |
| 1.1 To the extent applicable, the provisions of this Agreement shall be interpreted in accordance with clause 1.2 of the Master Definitions Agreement between LUL, BCV, SSL and JNP ( the MDA ). |
| 1.2 Words and expressions used in this Agreement shall, to the extent applicable and unless defined herein or the context otherwise requires, have the meaning assigned to them in Schedule 2 of the MDA. |
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PPP Board |
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2.1 (a) LUL and JNP shall establish and shall maintain until the Expiry Date a joint working board ( the LUL/JNP PPP Board ), consisting of a minimum of two and maximum of four representatives of LUL ( one of whom shall be the Chairman ) and a minimum of two and maximum of four representatives of JNP; (b) LUL and BCV shall establish and shall maintain until the Expiry Date a joint working board ( the LUL/BCV PPP Board ), consisting of a minimum of two and maximum of four representatives of LUL ( one of whom shall be the Chairman ) and a minimum of two and maximum of four representatives of BCV; and (c) LUL and SSL shall establish and shall maintain until the Expiry Date a joint working board ( the LUL/SSL PPP Board ), consisting of a minimum of two and a maximum of four representatives of LUL ( one of whom shall be the Chairman ) and a minimum of two and a maximum of four representatives of SSL. |
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2.2 (a) to consider and try to reach agreement to resolve Disputes referred to them pursuant to clause 3.1 or 3.2; (b) to carry out a review in November each year of all unresolved Disputes referred to them pursuant to clause 3.1 or 3.2 and to consider whether any of them might be resolved by agreement; and (c) to consider and try to reach an agreed conflict management plan with the purpose of reducing the potential for Disputes. |
| 2.3 In relation to any Dispute to which the only parties are LUL and more than one Infraco, the relevant PPP Boards shall sit jointly as a Joint PPP Board, as envisaged by clause 3.2(d), (e), (f) and (g), and one of the LUL representatives shall be the Chairman of the Joint PPP Board. |
| 2.4 In relation to any Dispute to which one or more of the parties is neither LUL nor an Infraco ( including for the avoidance of doubt a Dispute between two or more Infracos which Dispute does not involve LUL ), the members of the PPP Boards who represent the parties to the Dispute and four representatives of each other party to the Dispute shall establish an Other PPP Board, as envisaged by clause 3.2(h). If LUL is a party to the Dispute, one of its representatives shall be the Chairman of the Other PPP Board. If LUL is not a party to the Dispute, the parties to the Dispute shall agree a Chairman for the Other PPP Board. |
| 2.5 The functions of any Joint PPP Boards or Other PPP Boards shall be the same as those of the PPP Boards, as set out in clause 2.2. |
| 2.6 The members of each PPP Board, Joint PPP Board or Other PPP Board may adopt such procedures and practices for the conduct of the activities of such PPP Board, Joint PPP Board or Other PPP Board as they consider appropriate, from time to time. |
| 2.7 Decisions, including any agreement, and other recommendations of any PPP Board, Joint PPP Board or Other PPP Board must have the affirmative vote of all those voting on the matter, which must include, not less than one representative of each of the parties to the Dispute. |
| 2.8 A member of a PPP Board, Joint PPP Board or Other PPP Board shall have one vote on each PPP Board, Joint PPP Board or Other PPP Board of which he is a member. |
| 2.9 Each of the Chairmen of the PPP Boards, Joint PPP Board and ( where LUL is a party to the Dispute in question ) Other PPP Board shall be nominated by LUL. Each Chairman of a PPP Board, Joint PPP Board and Other PPP Board ( whether or not nominated by LUL ) shall have a right to vote but shall not have a casting vote. |
| 2.10 Each Chairman shall appoint a secretary for the PPP Board of which he is chairman ( the Secretary ). The Secretary shall, unless otherwise agreed by the parties, be an employee of LUL. LUL shall be responsible for any costs associated with any Secretary who is a LUL employee. |
| 2.11 Each PPP Board shall meet every four weeks. Each Joint PPP Board and Other PPP Board shall meet from time to time as necessary. In addition, any member of a PPP Board, Joint PPP Board or Other PPP Board may convene a meeting of that PPP Board, Joint PPP Board or Other PPP Board at any time. |
| 2.12 Meetings of any PPP Board, Joint PPP Board or Other PPP Board shall be convened on not less than 5 days' notice ( identifying the agenda items to be discussed at the meeting ) provided that in emergencies a meeting may be called at any time on such notice as may be reasonable in the circumstances. |
| 2.13 Meetings of a PPP Board, Joint PPP Board or Other PPP Board should normally involve the attendance ( in person or by alternate ) of representatives at the meeting. Where a PPP Board, Joint PPP Board or Other PPP Board decides it is appropriate, meetings may also be held by telephone or another form of telecommunication by which each participant can hear and speak to all other participants at the same time. In any event at least one representative of each party involved in any Dispute to be considered at the meeting must be present or otherwise involved in the meeting as provided for in this clause. |
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Dispute Resolution |
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Reference to Contract Managers |
| 3.1 Any Dispute shall in the first instance be referred by notice in writing from the referring party to the Contract Managers of the parties to the Dispute, unless one or more of the parties to the Dispute has not appointed a Contract Manager, in which case the Dispute shall be referred directly to the appropriate PPP Board, Joint PPP Board or Other PPP Board in accordance with clause 3.2. The written notice from the referring party shall identify the matter(s) in dispute and the relief sought and shall also identify and set forth the basis for claiming the relief sought ( including identification of the applicable provisions of the Contract(s) that are relevant to the Dispute ). As soon as reasonably practicable ( and in any event within 7 days of the referring party providing written notice to the Contract Managers or PPP Board, Joint PPP Board or Other PPP Board if the Dispute is referred directly to a PPP Board, Joint PPP Board or Other PPP Board ), the referring party shall deliver to the Contract Managers ( or PPP Board, Joint PPP Board or Other PPP Board as appropriate ) written particulars of the claims that are the subject matter of the Dispute, including: (i) the facts relied upon by the referring party in support of its claim(s); and (ii) calculation of the specific monetary amount ( if any ) the referring party is seeking to recover in relation to each and every particular claim that is the subject matter of the Dispute. In the event that the referring party fails to provide the requisite particulars to the Contract Managers ( or PPP Board, Joint PPP Board or Other PPP Board as appropriate ) within the specified time, the Contract Managers ( or PPP Board, Joint PPP Board or Other PPP Board as appropriate ) shall ( unless agreed otherwise ) decline to consider the Dispute further. |
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3.2 When a Dispute is referred to the Contract Managers in accordance with clause 3.1, the Contract Managers shall consider and try to reach agreement to resolve the Dispute. If the Contract Managers are unable to, or fail to, reach agreement to resolve the Dispute within either 21 days after the referral of the Dispute to them or such further time ( not to exceed 30 days ) as may be agreed to by the Contract Managers ( the Contract Managers to have a maximum of 51 days to try to reach agreement to resolve the Dispute ), then the Dispute shall be referred to the appropriate PPP Board, Joint PPP Board or Other PPP Board in accordance with the following criteria: (b) if the only parties to the Dispute are LUL and BCV, the Dispute shall be referred to the LUL/BCV PPP Board; (c) if the only parties to the Dispute are LUL and SSL, the Dispute shall be referred to the LUL/SSL PPP Board; (d) if the only parties to the Dispute are LUL, JNP and BCV, the Dispute shall be referred to the LUL/JNP PPP Board and the LUL/BCV PPP Board sitting jointly; (e) if the only parties to the Dispute are LUL, JNP and SSL, the Dispute shall be referred to the LUL/JNP PPP Board and the LUL/SSL PPP Board sitting jointly; (f) if the only parties to the Dispute are LUL, BCV and SSL, the Dispute shall be referred to the LUL/BCV PPP Board and the LUL/SSL PPP Board sitting jointly; (g) if the only parties to the Dispute are LUL, JNP, BCV and SSL, the Dispute shall be referred to all three PPP Boards sitting jointly; and (h) if one or more of the parties to the Dispute is neither LUL nor an Infraco, the Dispute shall be referred to a joint working board ( an Other PPP Board ) consisting of all the members of the PPP Boards who are representatives of the parties to the Dispute and four representatives of each party to the Dispute which is neither LUL nor an Infraco. |
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Reference to PPP Board/Joint PPP Board/Other PPP Board |
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3.3 (b) If a party refers a Dispute to a Joint PPP Board in accordance with clause 3.2(d), (e), (f) or (g), it shall do so by giving notice in writing to the Secretaries of the PPP Boards sitting jointly to form such Joint PPP Board. (c) If a party refers a Dispute to an Other PPP Board in accordance with clause 3.2(h), it shall do so by giving notice in writing to the Secretaries of the PPP Boards whose members are representatives of the parties to the Dispute. (d) A party referring a Dispute pursuant to clauses 3.3(a), (b) or (c) shall, at the time it gives written notice to the Secretary or Secretaries as appropriate, deliver to the Secretary or Secretaries a copy of the written notice and particulars delivered to the Contract Managers in accordance with clause 3.1 and if the party referring a Dispute pursuant to clauses 3.3(a), (b) or (c) intends at the Board level to raise matters or seek relief that is additional to the matter(s) and relief identified in the notice and particulars provided pursuant to clause 3.1, the referring party shall provide the Secretary or Secretaries as appropriate with written particulars of those additional matters and relief. A party referring a Dispute pursuant to clauses 3.3(a), (b) or (c) shall also, at the time it gives written notice to the Secretary or Secretaries as appropriate, deliver to the Secretary or Secretaries copies of those documents that, in the party's opinion, are necessary in order for the PPP Board, the Joint PPP Board or the Other PPP Board to consider and try to reach agreement to resolve the Dispute. |
| 3.4 Any PPP Board, Joint PPP Board or Other PPP Board shall consider and try to reach agreement to resolve any Dispute referred to it pursuant to clause 3.1 or 3.2. |
| 3.5 Forthwith upon referring a Dispute to a PPP Board, Joint PPP Board or Other PPP Board the Referring Party shall notify the other parties to the Dispute of the date of the reference ( the PB Referral Date ) and provide the other parties to the Dispute with a copy of the notice given in accordance with clause 3.3 and copies of all notice(s), particulars and documents provided to the Secretary or Secretaries of the PPP Board, the Joint PPP Board or Other PPP Board pursuant to clause 3.3(d). The parties receiving copies of the notice, particulars and documents pursuant to this clause shall have 5 days from the date of receipt of the notice, particulars and documents to deliver to the Secretary or Secretaries as appropriate of the PPP Board, the Joint PPP Board or the Other PPP Board copies of any additional documents that in the party's opinion are necessary in order for the PPP Board, the Joint PPP Board or the Other PPP Board to consider and try to reach agreement to resolve the Dispute and the party delivering such documents shall forthwith deliver copies of the additional documents to the Referring Party and to the other parties to the Dispute. |
| 3.6 If a PPP Board, Joint PPP Board or Other PPP Board is unable to, or fails to, reach agreement to resolve the Dispute within 30 days after the PB Referral Date then the Dispute shall be referred to the Senior Representatives. |
| 3.7 Each PPP Board, Joint PPP Board or Other PPP Board shall refer as necessary, in seeking to resolve any Dispute pursuant to clause 3.4, to any conflict management plan agreed pursuant to clause 2.2(c). |
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Reference to Senior Representatives |
| 3.8 A party shall refer a Dispute to the Senior Representatives in accordance with clause 3.6 by giving notice in writing to the other parties to the Dispute. |
| 3.9 Forthwith on the giving of a notice pursuant to clause 3.8, each of the parties to the Dispute shall appoint as its Senior Representative a representative at senior executive level and inform the other parties to the Dispute of the identity of its Senior Representative. |
| 3.10 The Senior Representatives shall consider and try to reach agreement to resolve the Dispute referred to them pursuant to clause 3.8. |
| 3.11 Forthwith upon referring a Dispute to the Senior Representatives the Referring Party shall notify the other parties to the Dispute of the date of the reference ( the SR Referral Date ). |
| 3.12 If the Senior Representatives are unable to, or fail to, reach agreement to resolve the Dispute within 14 days after the SR Referral Date, then any party to the Dispute may by written notice to the other parties thereto refer the Dispute to an Adjudicator in accordance with clause 4. |
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General Provisions Relating to References to Contract Managers, PPP Boards/ Joint PPP Boards/Other PPP Boards and Senior Representatives |
| 3.13 Any agreement of the Contract Managers, or of a PPP Board, Joint PPP Board or Other PPP Board or of the Senior Representatives to resolve any Dispute shall be final and binding on the parties to the Dispute and shall be in writing. |
| 3.14 The parties shall, and shall ensure that their respective Contract Managers, their respective members of the PPP Boards, Joint PPP Boards or Other PPP Boards and their respective Senior Representatives, act in good faith in all discussions and negotiations in trying to reach agreement to resolve any Dispute pursuant to this clause 3. |
| 3.15 Each party to the Dispute shall bear its own costs and fees in relation to any reference of a Dispute to any or all of the Contract Managers, the PPP Boards, Joint PPP Boards or Other PPP Boards and the Senior Representatives. |
| 3.16 Discussions amongst the Contract Managers, the PPP Boards, the Joint PPP Boards or Other PPP Boards and the Senior Representatives shall, unless agreed otherwise, be conducted on a without prejudice basis and the parties to any Dispute shall not make use of or rely upon any without prejudice statements or without prejudice admissions made in relation to any reference of the Dispute to any or all of the Contract Managers, the PPP Boards, Joint PPP Boards or Other PPP Boards and the Senior Representatives, and shall keep confidential the contents of all such references except (i) insofar as disclosure is necessary to implement and enforce any agreement referred to in clause 3.13, (ii) to their own legal advisers, or ( iii ) as otherwise required by law. |
| 3.17 The parties to a Contract to which a Dispute relates shall continue to observe and perform all the obligations contained in such Contract, notwithstanding any reference to the Contract Managers, the PPP Boards, the Joint PPP Boards or the Other PPP Boards or the Senior Representatives. |
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3A.1 If: (b) within 7 days of the First Dispute being referred as described in clause 3A.1(a) any other Dispute ( the Second Dispute ) is referred to the relevant Contract Managers or to a PPP Board, Joint PPP Board or Other PPP Board in accordance with clause 3.2, or to the Senior Representatives in accordance with clause 3.6, and the Second Dispute: (i) involves one or more of the parties to the First Dispute; and (ii) relates to any or the same issues raised by the First Dispute, |
| 3A.2 Where the Contract Managers are required to consider more than one Dispute at the same time as a result of the operation of this clause 3A, the amount of time that they shall have, for the purposes of clause 3.2, to consider and try to reach agreement to resolve the Disputes, shall be the amount of time that remained, at the date the Request was given, to attempt to resolve the First Dispute. For the avoidance of doubt, the ability of the Contract Managers to agree pursuant to clause 3.2 to extend the time to attempt to resolve the First Dispute shall apply as well to extending the time to attempt to resolve the First and Second Dispute. |
| 3A.3 If a party requests two or more Disputes to be considered by a PPP Board, a Joint PPP Board or Other PPP Board at the same time pursuant to clause 3A.1, it shall do so by giving the Request to the Secretary or Secretaries of the PPP Board, the Joint PPP Board or the other PPP Board, as appropriate, with a copy to the other parties to the Disputes. |
| 3A.4 A party requesting two or more Disputes to be considered by a PPP Board, a Joint PPP Board or Other PPP Board pursuant to clause 3A.1 shall, at the time it gives the Request to the Secretary of Secretaries as appropriate, deliver to the Secretary or Secretaries a copy of any notices given in relation to the Disputes in accordance with clause 3.3(a), (b) or (c) and of all notices, particulars and documents in relation to the Disputes which have been provided to the Secretary or Secretaries of a PPP Board or Joint PPP Board pursuant to clause 3.3(d) or 3.5. |
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3A.5 Where a PPP Board, Joint PPP Board or Other PPP Board has been requested to consider more than one Dispute at the same time pursuant to clause 3A.1: (b) the PB Referral Date shall for the purposes of clause 3.6 be: (i) the date upon which the First Dispute was requested to be considered by the PPP Board, Joint PPP Board or Other PPP Board; or (ii) such other date as may be agreed by the parties to the First Dispute and the Second Dispute. |
| 3A.6 Where the Senior Representatives have been requested to consider more than one Dispute at the same time pursuant to clause 3A.1, the SR Referral Date shall for the purposes of the clauses 3.12 and 4.1 be: (i) the date upon which the First Dispute was requested to be considered by the Senior Representative; or (ii) such other date as may be agreed by the parties to the First Dispute and the Second Dispute. |
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Reference to Adjudicator |
| 4.1 If in relation to a Dispute ( but not a Construction Act Dispute ) the Senior Representatives are unable to, or fail to, reach agreement to resolve the Dispute within 14 days after the SR Referral Date, then any party to the Dispute may within 14 days after the expiration of the said period of 14 days give Notice of Adjudication to the other parties to the Dispute. For the avoidance of doubt, Construction Act Disputes shall not be referred to adjudication under this clause 4.1. Any disagreement between the parties as to whether a dispute is in fact a Construction Act Dispute ( or vice versa ) shall be determined by the Adjudicator who has been appointed first under this clause or clause 6 in respect of the Dispute or Construction Act Dispute in question. |
| 4.2 Should any party give a Notice of Adjudication, immediately thereafter the parties to the Dispute shall endeavour to agree, from the lists of Adjudicators in Schedule 2, a shortlist of persons whom they would consider suitable to act as the Adjudicator and invite them ( in turn in the order in which they appear on the agreed shortlist ) to accept the reference of the Dispute referred to in the Notice of Adjudication. In the event of the parties to the Dispute failing to jointly appoint a person willing and suitable to act as Adjudicator within 14 days of the Notice of Adjudication, any party to the Dispute may apply to the Nominating Authority to appoint an Adjudicator. In acting pursuant to this clause, the Nominating Authority and its employees and agents shall not be liable to any party howsoever for any act or omission in so acting, save where the act or omission is shown by the party to constitute conscious and deliberate wrongdoing committed by the Nominating Authority or its employees or agents alleged to be liable to that party and if ( notwithstanding such exclusion of liability ) the Nominating Authority or its employees or agents should be held liable to any third person, the parties shall hold harmless and indemnify the Nominating Authority in full ( including reasonable legal costs ) save where conscious and deliberate wrongdoing, committed by the Nominating Authority or its employees or agents, is shown. |
| 4.3 The terms of remuneration of the Adjudicator shall be agreed by the parties to the Dispute and the Adjudicator as soon as is reasonably practicable after the Notice of Adjudication is given. If any party to the Dispute ( but not all parties to the Dispute ) rejects the terms of the remuneration of the Adjudicator the same shall be settled ( and binding upon the parties to the Dispute ) by agreement between the Nominating Authority and the Adjudicator ( provided that the level of the Adjudicator's fees shall not exceed the level originally proposed to the parties to the Dispute by the Adjudicator ). If all the parties to the Dispute reject the terms of remuneration proposed by an Adjudicator another person shall be appointed as an Adjudicator in accordance with clause 4.2. |
| 4.4 If: (i) a Notice of Adjudication ( the Second Notice of Adjudication ) is given within 14 days of a previous Notice of Adjudication ( the First Notice of Adjudication ) given in respect of a Dispute involving one or more of the parties to the Dispute in which the Second Notice of Adjudication is given; and (ii) the Second Notice of Adjudication relates to any of the same or similar issues raised by the First Notice of Adjudication, then the Second Notice of Adjudication shall be referred to the Adjudicator appointed ( or to be appointed ) under the First Notice of Adjudication. In this event, the Adjudicator shall conduct the references in respect of the First Notice of Adjudication and the Second Notice of Adjudication at the same time and any decision given by the Adjudicator in respect of those Notices of Adjudication shall be made in accordance with clause 4.7. |
| 4.5 The parties to the Dispute may jointly terminate the Adjudicator's appointment at any time. In such a case or if the Adjudicator fails to give notice of his decision within the period referred to in clause 4.7 and the parties to the Dispute do not jointly extend the time for his decision to be made or if at any time the Adjudicator declines to act or is unable to act as a result of his death, disability, resignation or otherwise, a person shall be appointed to replace the Adjudicator in accordance with the provisions of clause 4.2. In the event of the parties to the Dispute failing to jointly appoint a person willing and suitable to act as replacement Adjudicator within 14 days, any party to the Dispute may apply to the Nominating Authority to appoint a replacement Adjudicator. Provided that where the Adjudicator has failed to give notice of his decision within the period referred to in clause 4.7 or any extended time jointly agreed by the parties to the Dispute and any party to the Dispute has commenced court proceedings pursuant to clause 7.1, no replacement Adjudicator shall be appointed in accordance with this clause 4.5 and the Dispute shall be determined by the court in accordance with clause 7.1. In acting pursuant to this clause, the Nominating Authority and its employees and agents shall not be liable to any party howsoever for any act or omission in so acting, save where the act or omission is shown by the party to constitute conscious and deliberate wrongdoing committed by the Nominating Authority or its employees or agents alleged to be liable to that party and if ( notwithstanding such exclusion of liability ) the Nominating Authority or its employees or agents should be held liable to any third person, the parties shall hold harmless and indemnify the Nominating Authority in full ( including reasonable legal costs ) save where conscious and deliberate wrongdoing, committed by the Nominating Authority or its employees or agents, is shown. |
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4.6 As soon as reasonably practicable following receipt of the Notice of Appointment ( as defined in Schedule 3 ) of the Adjudicator any party who gave a Notice of Adjudication shall send to the Adjudicator: (b) a copy of this Agreement and the Contract or Contracts under, out of or in connection with which the Dispute arises. |
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4.7 (b) The Adjudicator shall act as expert and not as arbitrator and the Adjudicator's decision shall be final and binding upon the parties to the Dispute and the Adjudicator unless and until as hereinafter provided the Dispute is finally determined by the Court pursuant to clause 7 or by agreement. (c) The Adjudicator shall have full power to open up, review and revise any Resolution. |
| 4.8 Notice of the Adjudicator's decision ( stating that it is given under clause 4.7 ) shall include a summary of the Adjudicator's findings and, if agreed by the parties to the Dispute, a statement of the reasons for his decision. |
| 4.9 The parties to a Contract to which a Dispute relates shall continue to observe and perform all the obligations contained in such Contract, notwithstanding any reference to the Adjudicator, and shall to the extent that the Adjudicator's decision is compatible with any safety review procedures to which they are bound give effect forthwith to the Adjudicator's decision in every respect unless and until as hereinafter provided the decision of the Adjudicator is revised by the Court pursuant to clause 7 hereto. Any party to the Dispute may apply to any appropriate court for enforcement of the Adjudicator's decision. Neither any form of enforcement of the Adjudicator's decision nor any form of challenge to the enforcement of the Adjudicator's decision nor any dispute arising out of or in connection with such enforcement or challenge shall be regarded and treated as a Dispute for the purposes of clauses 3, 4, 5 and 6 hereto. |
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4.9A Although a decision of an Adjudicator shall be final and binding pursuant to clause 4.7(b) or clause 6.7(c) and the parties shall give effect to the Adjudicator's decision pursuant to clause 4.9 or clause 6.9, if any decision of the Adjudicator shall be revised by the Court pursuant to clause 7: (b) if a party has, as a direct and necessary result of having acted in accordance with any part of an Adjudicator's decision that has been revised by the Courts pursuant to clause 7, incurred or suffered liabilities, damages, losses, costs or expenses, the Court revising the Adjudicator's decision shall be entitled to award to that party such compensation as the Court determines appropriate including the payment or repayment of any sums ( together with interest thereon ) consequent upon any payments under clauses 18.9 or 18.10 of the Contract, but no party shall be entitled to claim or be awarded compensation for any indirect or consequential loss or damage ( including but not limited to lost profit or opportunities ) that may be incurred or suffered as a result of having acted in accordance with the Adjudicator's decision; and (c) to avoid doubt, no party shall be entitled to claim any other remedy apart from the remedy referred to in clause 4.9A (b) above as a consequence of any act necessarily or properly undertaken in accordance with any part of the Adjudicator's decision which has been revised by the Courts pursuant to clause 7. |
| 4.10 In any case where the Adjudicator is appointed as a replacement pursuant to clause 4.5, the parties to the Dispute shall each send to the Adjudicator, as soon as reasonably practicable, copies of all documents supplied by them to the Adjudicator he replaces and the reference shall continue as if there had been no change of Adjudicator. |
| 4.11 Subject to any agreement of the parties, the Adjudicator shall allocate the costs and fees of the adjudication as between the parties. Unless the parties otherwise agree, the Adjudicator shall award such costs and fees on the general principle that costs should follow the event, except where it appears to the Adjudicator that in the circumstances this is not appropriate in relation to the whole or part of the costs or fees. The parties agree to be bound by the Adjudicator's allocation of costs and fees and shall pay such costs and fees in accordance with the Adjudicator's direction unless and until the direction of the Adjudicator is set aside or revised by the court pursuant to clause 7 hereto. |
| 4.12 Subject to any agreement of the parties, the Adjudicator shall allocate payment of his remuneration and expenses between the parties. Unless the parties otherwise agree, the Adjudicator shall award the payment of his remuneration and expenses on the general principle that costs should follow the event, except where it appears to the Adjudicator that in the circumstances this is not appropriate in relation to the whole or part of his remuneration or expenses. The parties agree to be bound by the Adjudicator's allocation of payment of his remuneration and expenses and shall pay such remuneration and expenses in accordance with the Adjudicator's direction unless and until the direction of the Adjudicator is set aside or revised by the court pursuant to clause 7 hereto. |
| 4.13 If the terms of the Adjudicator's appointment provide for the payment of his remuneration and expenses before giving notice of his decision to the parties to the Dispute pursuant to clause 4.7, the parties to the Dispute shall pay such remuneration and expenses in equal amounts, and shall make adjustment payments between themselves following any direction made by the Adjudicator pursuant to clause 4.12. |
| 4.14 At the time of each Periodic Review LUL shall submit to the other parties to this Agreement updated lists of Adjudicators. The other parties to this Agreement may propose the removal of names from any such lists and may themselves propose names to be added to any such lists and LUL shall decide whether and to what extent to agree the other parties' proposals. To the extent that LUL agree the other parties proposal, they shall replace the lists contained in Schedule 2. If LUL does not accept the other parties' proposal, LUL shall provide the other parties with written reasons as to why LUL does not accept the proposal. |
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Accelerated Adjudication |
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4.15 The provisions of these clauses 4.15 to 4.27 inclusive shall apply where a Dispute ( but not a Construction Act Dispute ) arises out of or is connected with matters under any one or more of the following clauses of the PPP Contract: (b) clause 23 ( Step In ); (c) clause 27 ( Periodic Review ); (d) clause 29 ( Commercial Exploitation ); (e) clause 32 ( Change of Control of Infraco ); (f) clause 33 ( Change of Control of LUL ) (g) clause 40 and 41 ( Mandatory Sale ); and (h) clause 46 ( Corrupt Gifts and Safety Breach ), (i) clauses 48.9 and 48.10 confidentiality; (j) Appendix 9 of Schedule 2.1 ( Delivery into Service/Practical Completion ) in respect of Specified Line Upgrades, Train Refurbishments and Station Modernisations; (k) paragraph 5.6 of Schedule 3.1 ( disputed withholding of approval of Asset Management Strategy ); (l) paragraph 6.6 of Schedule 3.1 ( disputed withholding of approval of Annual Asset Management Plan ); (m) paragraph 6.14 of Schedule 3.1 ( action in response to failure to comply with Recovery Plan ); (n) paragraph 7.6A of Schedule 3.1 ( failure to agree approval date of Work Package Plans ); (o) the determination of who is to be the Conduct Party for the purposes of Schedule 5.13 ( Claims ); (p) clause 49.5 of the PPP Contract ( dispute in relation to a Notice of Instruction ); (q) any other matter where the subject matter of the Dispute is not otherwise set out in this clause 4.15, where three separate Disputes arising out of circumstances that are substantially the same as or similar to the subject matter of the Dispute in question have been referred for resolution pursuant to the Dispute Resolution Agreement within the year preceding the reference in question and on each occasion the relevant Dispute has not been resolved prior to the reference to the Senior Representatives; and (r) any dispute in relation to the interpretation of these clauses 4.15 to 4.27 inclusive except where 4.27(iv) applies; |
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4.16 Where a party refers an Accelerated Adjudication Dispute to Contract Managers in accordance with clause 3.1 ( or, if one or more of the parties to the Dispute has not appointed a Contract Manager, to the PPP Board, Joint PPP Board or Other PPP Board in accordance with clause 3.2 ) of this Agreement, any party to that Accelerated Adjudication Dispute may at any time: (b) prior to a Notice of Adjudication being given in accordance with clause 4.1 of this Agreement, |
| 4.17 When a Notice of Accelerated Adjudication is given by a party in accordance with clause 4.16, the provisions of clauses 4.2 - 4.13 and Schedule 3 of this Agreement shall apply mutatis mutandis to the Accelerated Adjudication Dispute. |
| 4.18 The parties agree that notwithstanding that a Notice of Accelerated Adjudication is given by a party in accordance with clause 4.16, if at the time that the Notice of Accelerated Adjudication is given the period within which the Contract Managers ( if the Dispute has been referred to them ) must consider and try to reach agreement to resolve the Accelerated Adjudication Dispute has not expired, then the Contract Managers shall ( unless agreed otherwise in writing ) continue to consider and try to reach agreement to resolve the Accelerated Adjudication Dispute in accordance with clause 3.2 at the same time as and in parallel with the Accelerated Adjudication Dispute. The parties agree that if the Contract Managers are unable to, or fail to, reach agreement to resolve the Accelerated Adjudication Dispute within the time provided for in clause 3.2, the Accelerated Adjudication Dispute shall not be referred to a PPP Board in accordance with clauses 3.2(a) - (h) of this Agreement, but shall instead immediately be referred to the Senior Representatives by written notice to the other parties to the Dispute, and clauses 3.9 - 3.11 shall apply mutatis mutandis to the Accelerated Adjudication Dispute. The parties agree that the adjudication of the Accelerated Adjudication Dispute shall proceed at the same time as and in parallel with the referral of the Accelerated Adjudication Dispute to the Senior Representatives and completion by the parties of the procedures in clauses 3.9-3.11 of this Agreement. |
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4.19 The parties agree that if the Notice of Accelerated Adjudication is given at any time: (b) prior to the Accelerated Adjudication Dispute being referred to the Senior Representatives in accordance with clauses 3.6 and 3.8 of this Agreement, |
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4.20 The parties agree that if the Notice of Accelerated Adjudication is given: (b) prior to a Notice of Adjudication being given pursuant to clause 4.1 of this Agreement, |
| 4.21 The parties agree that if the Senior Representatives fail to reach agreement to resolve the Accelerated Adjudication Dispute pursuant to clause 4.20 above, the parties shall ( unless agreed otherwise in writing ) continue with the adjudication of the Accelerated Adjudication Dispute and no party shall be entitled to issue a Notice of Adjudication in accordance with clause 4.1 of this Agreement in respect of the Accelerated Adjudication Dispute. |
| 4.22 The parties agree that clauses 3.14 to 3.17, 5, 7 and 9 of this Agreement shall apply mutatis mutandis to any Accelerated Adjudication Dispute where a Notice of Accelerated Adjudication Dispute is given. |
| 4.23 Any agreement of the Contract Managers or of the Senior Representatives to resolve any Accelerated Adjudication Dispute shall be final and binding on the parties to the Accelerated Adjudication Dispute and shall be in writing. |
| 4.24 The parties agree that if the Contract Managers or Senior Representatives resolve an Accelerated Adjudication Dispute in which a Notice of Accelerated Adjudication has been given, then immediately upon the parties receiving a copy of the written agreement ( in accordance with clause 3.13 of this Agreement ) of the Contract Managers or Senior Representatives resolving the Accelerated Adjudication Dispute in question, the adjudication of the Accelerated Adjudication Dispute shall cease. |
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4.25 The scope of the Adjudication shall be the matters identified in the Notice of Adjudication requiring adjudication, together with |
| 4.26 The Adjudicator may rule upon his own substantive jurisdiction, and as to the scope of the Adjudication. |
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4.27 If a party does not accept that the Dispute in question is an Accelerated Adjudication Dispute then unless the parties shall agree a different procedure: (b) the Adjudicator shall determine that issue first, and shall only proceed to determine the substantive Dispute if he shall determine that the Dispute is an Accelerated Adjudication Dispute; and (c) if the Adjudicator shall determine that the Dispute is not an Accelerated Adjudication Dispute then unless clause 4.27 (iv) below applies he shall not determine the substantive dispute, but after making any orders under clause 4.11 and/or 4.12 shall close his Adjudication. The parties to the Dispute shall then continue to resolve the Dispute in accordance with this Agreement as if the notice under clause 4.16 had not been given except that if the Dispute has been referred to the Senior Representatives after the notice was served, the Dispute shall not be referred to a PPP Board, Joint PPP Board or Other PPP Board at any stage unless the parties to the Dispute otherwise agree; and (d) if the period for the Senior Representatives to reach agreement to resolve the Dispute expires before the Adjudicator has reached his decision on whether the Dispute is an Accelerated Adjudication Dispute, the Adjudicator shall proceed to resolve the substantive Dispute. |
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Joinder of Disputes |
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5.1 An Associated Contract Dispute, other than a Construction Act Dispute, may be determined: (b) in the same proceedings as the Dispute provided notice has been given no later than 14 days after the Date of Appointment and the provisions of this Agreement shall be modified accordingly and the Adjudicator appointed in accordance with this Agreement shall have the same powers in relation to the Associated Contract Dispute as he has in relation to the Dispute and as if the procedure of the High Court in relation to co-defendants and non parties was available to the parties and to the Adjudicator. |
| 5.2 An Associated Contract Dispute, which is also a Construction Act Dispute, may be determined in the same proceedings as the Construction Act Dispute provided notice has been given within 3 days of the Notice of Construction Act Adjudication and the provisions of this Agreement shall be modified accordingly and the Adjudicator appointed in accordance with this Agreement shall have the same powers in relation to the Associated Contract Dispute as he has in relation to the Construction Act Dispute and as if the procedure of the High Court in relation to co-defendants and non parties was available to the parties and to the Adjudicator. |
| 5.3 Where a Dispute and an Associated Contract Dispute have been determined in the same proceedings before the Adjudicator and court proceedings are commenced in the Associated Contract Dispute those court proceedings shall be of no effect in relation to the Dispute and LUL shall not be bound or in any way affected by the outcome of the court proceedings unless the Dispute is also the subject of, and determined in, the same proceedings. |
| 5.4 Where an Associated Contract Dispute is to be determined in accordance with clause 5.1(b), a party to the Associated Contract Dispute may within 3 days of being notified of joinder of the Associated Contract Dispute with the Dispute or, if later, 3 days of becoming aware of the appointment or identity of the Adjudicator appointed in respect of the Dispute, ( or such other time as may be agreed by LUL and the parties to the Associated Contract Dispute ) give written notice to the Adjudicator appointed in the Dispute that it objects to the joinder of the Dispute and the Associated Contract Dispute on the basis that the Dispute does not arise out of circumstances which are substantially the same as or are closely connected with the issues in the Associated Contract Dispute or does not raise issues which are substantially the same as or closely connected with issues raised in the Associated Contract Dispute. The party giving such written notice shall at the same time provide copies of the written notice to all of the other parties to the Dispute and the Associated Contract Dispute. |
| 5.5 Where written notice is given and received pursuant to clause 5.4, the parties receiving a copy of the written notice shall have 2 days from the date of receiving a copy of the written notice to provide to the Adjudicator a written submission responding to the objection(s) set out in the written notice given pursuant to clause 5.4. A copy of any such written submission shall at the same time be delivered to all the other parties to the Dispute and Associated Contract Dispute. |
| 5.6 Within 4 days of receiving written notice pursuant to clause 5.4 ( or such other time as may be agreed by the parties to the Dispute and the Associated Contract Dispute ) the Adjudicator shall advise the parties of his decision concerning the objection(s) and whether the Associated Contract Dispute should proceed to be determined with the Dispute in accordance with clause 5.1(b). |
| 5.7 Where an Associated Contract Dispute is to be determined in accordance with clause 5.1(a) or an Associated Contract Dispute is to be determined in accordance with clause 5.1(b) and at the time notice is provided pursuant to clause 5.1(b) the Adjudicator in the Dispute has not been agreed and appointed, the parties to the Associated Contract Dispute may participate in the appointment of the Adjudicator and the parties to the Dispute and the parties to the Associated Contract Dispute shall appoint an Adjudicator to accept the reference of the joined Dispute and Associated Contract Dispute in accordance with the procedure set forth in clauses 4.2 and 4.3 hereto and the equivalent provisions in the Northern Line Train Service Contracts. Where the Adjudicator has been agreed and appointed in the Dispute at the time notice is provided pursuant to clause 5.1(b), Alstom NL Service Provision Limited ( ( company registration number 02849400 ) whose registered office is at PO Box 6760, Washwood Heath, Birmingham, West Midlands B8 2YT )( Alstom ) may provide written notice objecting to the Adjudicator in the Dispute acting as Adjudicator in the joined Dispute and Associated Contract Dispute ( the Objection Notice ). Alstom shall deliver copies of the Objection Notice to the parties to the Dispute and the parties to the Associated Contract Dispute within 3 days of notice being given pursuant to clause 5.1(b). The Objection Notice shall identify and set forth the basis upon which Alstom objects to the Adjudicator appointed in the Dispute acting as Adjudicator in the joined Dispute and Associated Contract Dispute. LUL and JNP shall have 3 days from the date on which they receive copies of the Objection Notice to respond in writing to the objection(s) made by Alstom ( the Response to the Objection ) and they shall at the same time deliver copies of the Response to the Objection to the other parties to the Dispute and the Associated Contract Dispute. Upon receipt by Alstom of a Response to the Objection, Alstom, LUL and JNP shall discuss the objection(s) and LUL, Alstom and JNP shall attempt in good faith to reach agreement to resolve Alstom's objection(s) to the continued appointment of the Adjudicator. In the event Alstom, LUL and JNP are not able to, or fail to, reach agreement to resolve the objection within 3 days of the date of delivery of the Response to the Objection, the Adjudicator in the Dispute shall be notified in writing by the parties to the Dispute that his appointment as Adjudicator in the Dispute has been terminated and the parties to the Dispute and the parties to the Associated Contract Dispute shall forthwith in accordance with the provisions of clauses 4.2 and 4.3 hereto and the equivalent provisions in the Northern Line Train Service Contracts appoint an Adjudicator to accept the reference of the joined Dispute and Associated Contract Dispute. |
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Construction Act Disputes |
| 6.1 Notwithstanding clauses 3 and 4 any party to a Construction Act Contract may give notice at any time of its intention to refer a Construction Act Dispute to adjudication under the procedure set out in this clause 6, by giving a Notice of Construction Act Adjudication to the other parties to the Construction Act Dispute. |
| 6.2 Should any party give a Notice of Construction Act Adjudication, immediately thereafter the parties to the Construction Act Dispute shall endeavour to agree, from the lists of Adjudicators in Schedule 2, a shortlist of persons whom they would consider suitable to act as the Adjudicator and invite them ( in turn in the order in which they appear on the agreed shortlist ) to accept the reference of the Construction Act Dispute referred to in the Notice of Construction Act Adjudication. In the event of the parties to the Construction Act Dispute failing to jointly appoint a person willing and suitable to act as Adjudicator within 3 days of the Notice of Construction Act Adjudication, any party to the Construction Act Dispute may apply to the Nominating Authority to appoint an Adjudicator. The Nominating Authority shall endeavour to appoint the Adjudicator within 4 days of receiving the application. In acting pursuant to this clause, the Nominating Authority and its employees and agents shall not be liable to any party howsoever for any act or omission in so acting, save where the act or omission is shown by the party to constitute conscious and deliberate wrongdoing committed by the Nominating Authority or its employees or agents alleged to be liable to that party and if ( notwithstanding such exclusion of liability ) the Nominating Authority or its employees or agents should be held liable to any third person, the parties shall hold harmless and indemnify the Nominating Authority in full ( including reasonable legal costs ) save where conscious and deliberate wrongdoing, committed by the Nominating Authority or its employees or agents, is shown. |
| 6.3 The terms of remuneration of the Adjudicator shall be agreed by the parties to the Construction Act Dispute and the Adjudicator with the object of securing appointment of the Adjudicator within 7 days of the Notice of Construction Act Adjudication. If any party to the Construction Act Dispute ( but not all parties to the Construction Act Dispute ) rejects the terms of the remuneration of the Adjudicator the same shall be settled ( and binding upon the parties to the Construction Act Dispute ) by agreement between the Nominating Authority and the Adjudicator ( provided that the level of the Adjudicator's fees shall not exceed the level originally proposed to the parties to the Construction Act Dispute by the Adjudicator ). If all the parties to the Construction Act Dispute reject the terms of remuneration proposed by an Adjudicator another person shall be appointed as an Adjudicator in accordance with clause 6.2. |
| 6.4 The Construction Act Dispute shall be deemed to be referred to the Adjudicator on his acceptance of the appointment. |
| 6.5 The parties to the Construction Act Dispute may jointly terminate the Adjudicator's appointment at any time. In such a case, or if the Adjudicator fails to give notice of his decision within the period referred to in clause 6.7(a), or if that period is extended in accordance with clause 6.7(b) within such extended period, and the parties to the Construction Act Dispute do not jointly extend time for his decision to be made in accordance with clause 6.7(a), or if at any time the Adjudicator declines to act or is unable to act as a result of his death, disability, resignation or otherwise, a person shall be appointed to replace the Adjudicator in accordance with the provisions of clause 6.2. In the event of the parties to the Construction Act Dispute failing to jointly appoint a person willing and suitable to act as replacement Adjudicator within 3 days, any party to the Construction Act Dispute may apply to the Nominating Authority to appoint a replacement Adjudicator. Provided that where the Adjudicator has failed to give notice of his decision within the period referred to in clause 6.7(a), or if that period is extended in accordance with clause 6.7(b) within such extended period, or within any extended time jointly agreed by the parties to the Construction Act Dispute in accordance with clause 6.7(a), and any party to the Construction Act Dispute has commenced court proceedings pursuant to clause 7.1, no replacement Adjudicator shall be appointed in accordance with this clause 6.5 and the Construction Act Dispute shall be determined by the court in accordance with clause 7.1. In acting pursuant to this clause, the Nominating Authority and its employees and agents shall not be liable to any party howsoever for any act or omission in so acting, save where the act or omission is shown by the party to constitute conscious and deliberate wrongdoing committed by the Nominating Authority or its employees or agents alleged to be liable to that party and if ( notwithstanding such exclusion of liability ) the Nominating Authority or its employees or agents should be held liable to any third person, the parties shall hold harmless and indemnify the Nominating Authority in full ( including reasonable legal costs ) save where conscious and deliberate wrongdoing, committed by the Nominating Authority or its employees or agents, is shown. |
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6.6 Immediately following receipt of the Notice of Construction Act Appointment ( as defined in Schedule 4 ) any party who gave Notice of Construction Act Adjudication shall send to the Adjudicator: (b) a copy of this Agreement and the Contract or Contracts under which the Construction Act Dispute arises. |
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6.7 (b) The Adjudicator may extend the period of 28 days referred to in clause 6.7(a) by up to 14 days, with the consent of the party by whom the Construction Act Dispute was referred pursuant to clause 6.1. (c) The Adjudicator shall act as expert and not as arbitrator and the Adjudicator's decision shall be binding upon the parties to the Construction Act Dispute and the Adjudicator until the Construction Act Dispute is finally determined by legal proceedings ( pursuant to clause 7 ) or by agreement. (d) The Adjudicator shall have full power to open up, review and revise any Resolution. |
| 6.8 Notice of the Adjudicator's decision ( stating that it is given under clause 6.7 ) shall include a summary of the Adjudicator's findings and, if agreed by the parties to the Construction Act Dispute, a statement of the reasons for his decision. |
| 6.9 The parties to a Contract to which the Construction Act Dispute relates shall continue to observe and perform all the obligations contained in such Contract, notwithstanding any reference to the Adjudicator, and shall insofar as the same is consistent with any safety review procedures to which the parties to the Construction Act Dispute are bound, give effect forthwith to the Adjudicator's decision in every respect unless and until as hereinafter provided the decision of the Adjudicator is revised by the Court pursuant to clause 7 hereto. Any party to the Construction Act Dispute may apply to any appropriate court for enforcement of the Adjudicator's decision. Neither any form of enforcement of the Adjudicator's decision nor any form of challenge to the enforcement of the Adjudicator's decision nor any dispute arising out of or in connection with such enforcement or challenge shall be regarded and treated as a Dispute for the purposes of clauses 3, 4, 5 and 6 hereto. |
| 6.10 In any case where the Adjudicator is appointed as a replacement pursuant to clause 6.5, the parties to the Construction Act Dispute shall each send to the Adjudicator, as soon as reasonably practicable, copies of all documents supplied by them to the Adjudicator he replaces and the reference shall continue as if there had been no change of Adjudicator. |
| 6.11 Subject to any agreement of the parties, the Adjudicator shall allocate the costs and fees of the adjudication as between the parties. Unless the parties otherwise agree, the Adjudicator shall award such costs and fees on the general principle that costs should follow the event, except where it appears to the Adjudicator that in the circumstances this is not appropriate in relation to the whole or part of the costs or fees. The parties agree to be bound by the Adjudicator's allocation of costs and fees and shall pay such costs and fees in accordance with the Adjudicator's direction unless and until the direction of the Adjudicator is set aside or revised by the Courts pursuant to clause 7 hereto. |
| 6.12 Subject to any agreement of the parties, the Adjudicator shall allocate payment of his remuneration and expenses as between the parties. Unless the parties otherwise agree, the Adjudicator shall award the payment of his remuneration and expenses on the general principle that costs should follow the event, except where it appears to the Adjudicator that in the circumstances this is not appropriate in relation to the whole or part of his remuneration or expenses. The parties agree to be bound by the Adjudicator's allocation of payment of his remuneration and expenses and shall pay such remuneration and expenses in accordance with the Adjudicator's direction unless and until the direction of the Adjudicator is set aside or revised by the Courts pursuant to clause 7 hereto. |
| 6.13 If the terms of the Adjudicator's appointment provide for the payment of his remuneration and expenses before giving notice of his decision to the parties to the Construction Act Dispute pursuant to clause 6.7, the parties to the Construction Act Dispute shall pay such remuneration and expenses in equal amounts, and shall make adjustment payments between themselves following any direction made by the Adjudicator pursuant to clause 6.12. |
| 6.14 The parties to this Agreement specifically acknowledge that they intend that the decision of any Adjudicator to a Construction Act Dispute shall be binding on the parties where and to the extent that they are compatible with the requirements of any safety review procedure to which they are bound. |
| 6.15 In the event that any term, condition or provision contained in this clause shall be held to be contrary to, inconsistent or non-compliant with the requirements of sub-sections (1) to (4) of Section 108 of the Housing Grants, Construction and Regeneration Act 1996, such term, condition or provision shall, to that extent be omitted from this Agreement and the rest of the Agreement shall stand, without affecting the remaining terms, conditions and provisions. |
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Court proceedings |
| 7.1 If any party to a Dispute is dissatisfied with the Adjudicator's decision thereon, then any party thereto, on or before the 42nd day after the day on which it received notice of such decision may commence court proceedings for the determination of the Dispute. If the Adjudicator fails to give notice of his decision on or before the 42nd day after the Date of Appointment, or in the case of a Construction Act Dispute referred to the Adjudicator pursuant to clause 6.1, on or before the 28th day after the Date of Construction Act Appointment, ( or where more than one Dispute is referred to the Adjudicator no later than the 42nd day after receipt by him of the latest Notice of Adjudication or in the case of a Construction Act Dispute, no later than the 28th day after receipt by him of the Notice of Construction Act Adjudication, if later ) ( or any later day which the parties to the Dispute may have jointly agreed with the Adjudicator pursuant to clause 4.5 or 6.5 as appropriate ) then any party to the Dispute, on or before the 42nd day after the day on which the said period of 28 or 42 days as appropriate has expired ( or the 42nd day after any such later day which the parties to the Dispute shall have jointly agreed pursuant to clause 4.5 or 6.5 as appropriate ) may commence court proceedings for determination of the Dispute. |
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7.2 In relation to any proceedings commenced pursuant to clause 7.1: (b) no decision given by any Contract Manager shall disqualify him from being called as a witness and giving evidence before the Court on any matter whatsoever relevant to the Dispute; (c) the Adjudicator shall not be called as a witness nor required to give evidence before the Court on any matter whatsoever; (d) any party can request the Court to set aside or revise a direction by the Adjudicator in respect of payment by the parties of the costs or fees of the adjudication ( including payment of the remuneration and expenses of the Adjudicator ); and (e) for the avoidance of doubt, any party can request the Court to review and revise any Resolution under any of the Contracts listed in Schedule 1 ( as amended pursuant to clause 12 ). |
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Interim relief |
| 8 Nothing in this Agreement shall prevent any party seeking interim relief in any court. |
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Jurisdiction and enforcement |
| 9.1 Subject to the terms of this Agreement, all parties hereto agree that the Courts of England and Wales are to have exclusive jurisdiction to settle any Dispute and for such purposes irrevocably submit to the jurisdiction of the Courts of England and Wales. |
| 9.2 The parties irrevocably agree that they intend to be bound by a judgment or order of the Courts of England and Wales in connection with a Dispute to the extent that such judgment or order is compatible with any safety procedures to which they are bound. In this regard, a judgment or order of the Courts of England and Wales is conclusive and binding on them and may be enforced against them in the courts of any other jurisdiction. |
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Governing law |
| 10 This Agreement shall be governed by and construed in accordance with the laws of England and Wales. |
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Contracts (Rights of Third Parties) Act 1999 |
| 11 A person who is not a party to this Agreement shall have no right under the Contracts ( Rights of Third Parties ) Act 1999 to enforce any of its terms. |
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Additional contracts |
| 12.1 In the event that after the date of this Agreement a party to this Agreement enters into a contract with another party to this Agreement ( an Additional Contract ) and the Additional Contract involves or relates to the provision of services related to the Underground Network, the parties to the Additional Contract may give notice to the other parties to this Agreement that the said Additional Contract shall be added to Schedule 1 of this Agreement. Any such notice must be given within 30 days of the date that the parties enter into the Additional Contract. |
| 12.2 On 1 April of each year, LUL shall issue to each of the parties to this Agreement a copy of Schedule 1 of this Agreement which shall be updated to include all the Additional Contacts that have been added to Schedule 1 pursuant to clause 12.1. |
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Limitation on Intra Infraco Liability |
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13.1 The liability of one Infraco ( the Liable Infraco ) to another Infraco for the breach of any of the provisions of this Agreement in relation to: (b) loss of business; (c) loss of contracts; (d) indirect, special, incidental or consequential loss or damage; and (e) claims of third parties for any of the matters referred to in subparagraphs (a) - (d) above, shall be limited to £500,000 in each Contract Year, and this limitation shall apply even if the Liable Infraco has notice of the likelihood of such loss or damage, provided always that for the avoidance of doubt the operation of this clause limits liabilities for breach of the provisions of this Agreement only and does not affect any liability of any party under or in connection with any other agreement to which it is or may become a party including ( without limitation ) where any such liability is being determined pursuant to the terms of this Agreement. |
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Assignment |
| 14.1 No Infraco may assign, transfer, charge or otherwise deal with, in whole or in part, any of its rights or obligations under this Agreement ( nor grant, declare a trust of, create or dispose of any right or interest in it ) other than in accordance with the terms of the relevant PPP Contract. |
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14.2 TMU and REW may not assign, transfer, charge or otherwise dispose of, in whole or in part, any of its rights or obligations under this Agreement ( nor grant, declare a trust of, create or dispose of any right or interest in it ) other than in accordance with the terms of the BCV Contract ( in the case of TMU ) and the SSL Contract ( in the case of REW ) and in such case relevant references to BCV in the BCV Contract and to SSL in the SSL Contract shall be deemed to be to TMU and REW, as appropriate. As witness this Agreement has been signed for and on behalf of the parties on the date first above written. Signed by MARTIN CALLAGHAN ) MARTIN CALLAGHAN and FRANCES LOW ) FRANCES LOW for and on behalf of ) London Underground Limited ) Signed by MARTIN CALLAGHAN ) MARTIN CALLAGHAN and FRANCES LOW ) FRANCES LOW for and on behalf of ) Infraco BCV Limited ) Signed by MARTIN CALLAGHAN ) MARTIN CALLAGHAN and FRANCES LOW ) FRANCES LOW for and on behalf of ) Infraco Sub-Surface Limited ) Signed by MARTIN CALLAGHAN ) MARTIN CALLAGHAN and FRANCES LOW ) FRANCES LOW for and on behalf of ) Infraco JNP Limited ) Signed by MARTIN CALLAGHAN ) MARTIN CALLAGHAN and FRANCES LOW ) FRANCES LOW for and on behalf of ) rew ( acton ) limited ) Signed by MARTIN CALLAGHAN ) MARTIN CALLAGHAN and FRANCES LOW ) FRANCES LOW for and on behalf of ) tmu ( acton ) limited ) |
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SCHEDULE 1 - The Contracts 2. Service Contract ( BCV ) 3. Service Contract ( SSL ) 4. Lease ( BCV ) 5. Lease ( JNP ) 6. Lease ( SSL ) 7. Underlease ( BCV ) 8. Underlease ( JNP ) 9. Underlease ( SSL ) 10. Safety Agreement ( JNP ) 11. Safety Agreement ( BCV ) 12. Safety Agreement ( SSL ) 13. Insurance Agreement 14. Major Enhancement Agreement ( JNP ) 15. Major Enhancement Agreement ( BCV ) 16. Major Enhancement Agreement ( SSL ) 17. Codes Accession Agreement 17A. TIMIS Agreements 18. Access Code 19. Property Code 20. Standards Code 21. Risk Management and Insurance Code 22. Performance Measurement Code 23. Inter-Infraco Assets and Facilities Agreement 24. Depot Facilities Agreement dated 1 April 2000 between LUL, JNP and SSL 25. Ruislip Depot Loading Area Agreement. 26. Master Definitions Agreement 27. Information Agreement dated 1 April 2000 between LUL, BCV, JNP and SSL 28. Ancillary Agreements including: (a) Framework Agreement for the Provision of Services dated 1 April 2000 between LUL, JNP, BCV and SSL; (b) ERU Agreement dated 1 April 2000 between LUL, JNP, BCV and SSL; (c) Apprentice Training Agreements (2) dated 1 April 2000 between BCV and JNP and BCV and SSL; (d) a REW Agreement dated 4 October 2000 between JNP, BCV, SSL and REW ( Acton ) Ltd; (e) TMU Agreement dated 11 July 2000 between TMU ( Acton ) Ltd, BCV, JNP and SSL; (f) a Signalling Training Agreement dated 1 April 2000 between LUL, JNP, BCV and SSL; (g) a Track Workshop & Site Services Agreement dated 1 April 2000 between JNP, BCV and SSL; (h) Signalling, Electrical and Communications Services Agreements (2) dated 1 April 2000 between SSL and BCV and SSL and JNP; (i) a Maintenance and Minor Fault Repair of Escalators Agreement dated 1 April 2000 between JNP and SSL; (j) Plant Services Agreements (2) dated 1 April 2000 between JNP and BCV and JNP and SSL; (k) Pumps and Drainage Agreements (2) dated 1 April 2000 between BCV and JNP and BCV and SSL; (l) Vehicle Hire Agreements (4) dated 1 April 2000 between JNP and LUL, JNP and BCV, JNP and SSL, JNP and London Transport; (m) Track Materials Agreements (2) dated 1 April 2000 between BCV and JNP and BCV and SSL; (n) Signal Materials Agreements (2) dated 1 April 2000 between SSL and JNP and SSL and BCV; (o) Distribution Services Agreements (3) dated 1 April 2000 between JNP and SSL, JNP and BCV and JNP and LUL; (p) a Transplant Agreement dated 1 April 2000 between LUL, JNP, BCV and SSL; (q) a Signalling Maintenance Agreement ( Chiswick Park to Ealing Broadway ) dated 1 April 2000 between JNP and SSL; (r) a Technical Capability Agreement initialled on 1 April 2000 and signed on 4 October 2000 between JNP, BCV and SSL; (s) a Provision of Escalator Materials Agreement initialled on 1 April 2000 and signed on 11 July 2000 between JNP and BCV; (t) a Duty Signal Engineers Roster Agreement dated 11 July 2000; (u) Signal Repairables Agreements (2) dated 11 October 2000 between SSL and BCV and SSL and JNP; (v) an Engineering Workshop Services for Escalators Agreement signed and dated 25 June 2001 between BCV and JNP; (w) Signalling Maintenance Agreement ( Finchley Road to Stanmore ) dated 1 April 2000 between SSL and JNP; (x) CTAP Agreement dated 1 April 2000 and cancelled on 11 July 2000 between JNP, BCV and SSL; (y) Signalling Maintenance Agreement ( Finchley Road to Stratford ) dated 1 April 2000 and cancelled on 11 July 2000 between BCV and JNP; (z) Agreement for the Secondment of Test Train Operators initialled on 1 April 2000 and cancelled on 11 July 2000 between LUL and BCV; and (aa) Signalling Maintenance Agreement ( Chiswick Park to Ealing Broadway ) dated 1 April 2000 between JNP and SSL. 28A. Global Amendment Agreement entered into on or about the JNP Transfer Date and made between LUL, JNP, BCV, SSL, REW ( Acton ) Limited and TMU ( Acton ) Limited. 29. Centralised Service Agreements including: (a) Supply of Information Services Support Agreements (3) dated 1 April 2000 between LUL and JNP, LUL and BCV and LUL and SSL; (b) Occupational Health Services Agreements (3) dated 1 April 2000 between LUL and JNP, LUL and BCV and LUL and SSL; (c) a Neasden Depot Train Movement Agreement dated 1 April 2000 between LUL, JNP and SSL; (d) a Stratford Depot Train Movement Agreement dated 1 April 2000 between LUL and JNP; (e) an Accounting Services Agreement dated 1 April 2000 between LUL, JNP, BCV and SSL; (f) a Payroll Services Agreement dated 1 April 2000 between LUL, JNP, BCV and SSL; (g) Corporate Services Agreements (3) dated 4 October 2000 between LUL and JNP, LUL and BCV and LUL and SSL; (h) an Agreement for the Secondment of Test Train Operators initialled on 1 April 2000 and signed on 11 July 2000 between LUL and BCV; and (i) an Agreement for the Provision of Engineering Information Services Business Support dated 11 July 2000 between LUL, JNP, BCV and SSL. 30. Property Leases and Documents: (a) Ancillary Leases; (b) Ancillary Underleases; (c) Depot Sub-leases ( but the Dispute Resolution Agreement shall apply only by virtue of the reference to the Sub-leases in Schedule 1 ); (d) Acton Works Lease ( BCV ) ( but the Dispute Resolution Agreement shall apply only so long as LUL is the landlord ); (e) Acton Works Lease ( JNP ) ( but the Dispute Resolution Agreement shall apply only so long as LUL is the landlord ); (f) Acton Works Lease ( SSL ) ( but the Dispute Resolution Agreement shall apply only so long as LUL is the landlord ); (g) Site Management Agreement in relation to Acton Works dated 4 October 2000 between LUL and JNP; (h) Acton Works ETC Agreement dated 4 October 2000 between LUL, BCV, JNP and SSL ( but the Dispute Resolution Agreement shall apply only so long as LUL is the landlord ); (i) Frank Pick House Sub-lease initialled on 4 October 2000 between BCV and SSL ( but the Dispute Resolution Agreement shall apply only so long as LUL is the landlord ); (j) Office Accommodation Leases ( other than Disputes connected with or raising issues connected with a claim brought by any superior landlord ); (k) Facilities Management Agreement dated 11 July 2000 between LUL and BCV; (l) Facilities Management Agreement dated 11 July 2000 between LUL and JNP; and (m) Facilities Management Agreement dated 11 July 2000 between LUL and SSL. 31. Shareholders' Agreement ( JNP ). 32. Shareholders' Agreement ( BCV ). 33. Shareholders' Agreement ( SSL ). 34. Interim Property Amendment Agreement entered into on the date of the JNP Transfer Date and made between LUL, JNP, BCV and SSL. |
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SCHEDULE 2 - Lists of Adjudicators (arranged according to discipline) |
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(i) Legal Vivian Ramsey QC, Keating Chambers, 10 Essex Street, Outer Temple, London WC2R 3AA John Marrin QC, Keating Chambers, 10 Essex Street, Outer Temple, London WC2R 3AA Kenneth Rokison QC, 20 Essex Street, London WC2R 3AL V V Veeder QC, Essex Court Chambers, 24 Lincoln's Inn Fields, London WC2A 3ED Peter Gross QC, 20 Essex Street, London WC2R 3AL Robert Gaitskell QC, Keating Chambers, 10 Essex Street, Outer Temple, London WC2R 3AA Iain Milligan QC, 20 Essex Street, London WC2R 3AL |
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(ii) Infrastructure (including Electrical & Mechanical, Signal & Control, Power) Peter H J Chapman BSc ( Hons ), LLB, CEng, FICE, FCI Arb, FConsE, FI FHKIE, MSIArb, Barrister Brian S C Holloway MSc ( Construction Law ), LLB ( Hons ), CEng, FIC, FCI Arb, Barrister |
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(iii) Construction (including Building, Civil and Track) Ronald West PhD, CEng, MICE, FIHT, FCI Arb, LIMA Richard W Bayfield Msc, CEng, MICE, FCI Arb |
| (iv) Communication (including telephones, CCTV & Radio) Antony A E Baylis BSc ( Eng ), CEng, FICE, FCI Arb |
| (v) Rolling Stock John Vint MA ( Cantab ), CEng, FIMechE, FIEE |
| (vi) Financial (including appropriate financial models, Tax) As recommended by the Nominating Authority |
| (vii) Human Resources (including TUPE etc.) As recommended by the Nominating Authority |
| (viii) IS/IT As recommended by the Nominating Authority |
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(ix) Health, Safety, Quality and Environmental Dr Tony Boyle, HASTAM, Love Lane, Aston Science Park, Birmingham B7 4BJ Professor Richard Booth, Aston University Health & Safety Faculty, Aston Triangle, Birmingham Paul Reeve, Engineering Employers Federation, Broadway House, Broadway, London SW1 Ken Jordan, Engineering Employers Federation ( South ), Station Road, Hook, Hants RG27 9TL Tony Taig, Managing Partner, Risk Solutions, 1 st Floor, Central House, 14 Upper Woburn Place, London WC1H 0JN |
| (x) Pensions As recommended by the Nominating Authority |
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(xi) Property Mr C Sanderson, Messrs FPD Savills, 25 Finsbury Circus, London EC2M 7EE Mr P J Willis, Messrs Knight Frank, Kings House, 36 King Street, London EC2V 8QQ Mr A M Chase, Messrs Gerald Eve, 7 Vere Street, London W1M 0J Mr A M Horrell, Messrs Jones Lang Lasalle, 9 Queen Victoria Street, London EC4M 4YY Mr E R Bewick, Messrs G V A Grimley, 10 Stratton Street, London W1X 6JR Mr J C Pagella, Messrs Montague Evans, Premier House, 44/48 Dover Street, London W1X 4JX Mr M Strong, Messrs Richard Ellis St Quintin, 55 Old Broad Street, London EC2M 1LP. |
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SCHEDULE 3 - Adjudication Procedures |
| 1 Forthwith upon the agreement or determination of his terms of remuneration the Adjudicator shall notify the parties to the Dispute in writing of his appointment ( "Notice of Appointment" ) and the address and the facsimile, if any, at which notices or other communications should be addressed to him. |
| 2 All notices, written submissions and any other written communications between the parties to the Dispute and the Adjudicator shall either be delivered by hand, sent by facsimile or sent by first class pre-paid post or recorded delivery and shall in each case be copied simultaneously ( delivered or sent as aforesaid ) to the other parties. Copies by way of confirmation of all communications by facsimile between the parties to the Dispute and the Adjudicator shall also be sent by first class post not later than the business day next following the date of the original facsimile transmission. |
| 3 Within 7 days of receipt of the Notice of Appointment ( or where more than one Dispute is referred to the Adjudicator within 7 days of receipt of the latest Notice of Adjudication if later ) each party to the Dispute may make one written submission to the Adjudicator and within 7 days from the date of receipt of the written submission of any other party to the Dispute may make a written response to that other party's submission. Any submission made by any party shall contain copies of all documents on which that party wishes to rely ( or a list of such documents if they are already in the possession of any other party to the Dispute ). All written submissions and written responses shall either be delivered by hand or sent by facsimile or post in accordance with paragraph 2 of this Schedule 3 within the relevant periods referred to in this paragraph 3. The Adjudicator shall consider such written submissions and written responses as may be made by the parties pursuant to this paragraph 3. |
| 4 The Adjudicator may with the consent of the parties to the Dispute seek legal or technical advice from consultants whose appointment by the Adjudicator ( including terms of remuneration ) is subject to the approval of the parties to the Dispute. |
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5 The Adjudicator may, in his discretion, but shall not be obliged to: (b) submit lists of questions to the parties to the Dispute to be answered in such meetings or in writing within such reasonable time as he may require; (c) require the parties to the Dispute to provide him with such information, access and other facilities as he may reasonably require for the determination of the Dispute; (d) otherwise take such action and adopt such procedures as do not conflict with any of the provisions of the Agreement or this Schedule 3 and shall be reasonable and proper for the just, expeditious and economical determination of the Dispute; (e) inspect any part of the Underground Network. |
| 6 The Adjudicator shall adopt any other procedures ( including any variation of the procedures provided for under this Schedule 3 ) which may be agreed between the parties to the Dispute for determination of the Dispute. |
| 7 The Adjudicator shall act impartially and as an expert ( not as an arbitrator ) in the conduct of the reference and in reaching his decision. |
| 8 All information of whatever nature provided to the Adjudicator by any party to the Dispute shall be copied to the other parties or ( where copying is not practicable ) the other parties to the Dispute shall be entitled to inspect it. |
| 9 All meetings shall be private and save as expressly provided in this Schedule 3 or as required by law the Adjudicator shall keep confidential the Dispute, all information of whatever nature provided to him by or on behalf of any party and his decision. |
| 10 No decision given by any Contract Manager shall disqualify him from appearing before the Adjudicator and answering ( orally or in writing ) questions put by the Adjudicator on any matter whatsoever relevant to the Dispute. |
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11 Where Alstom becomes, in accordance with the provisions of clause 5.1(b), a party to a reference to an Adjudication at any time after appointment of the Adjudicator: (b) all parties to the reference shall be deemed to have agreed that the time limit for issue of the Adjudicator's decision shall be extended to expire 35 days after the making of the submission referred to in paragraph 11 (a) of this Schedule; (c) subject to any agreement of the parties, the Adjudicator shall allocate payment of his remuneration and expenses between the parties. Unless the parties otherwise agree, the Adjudicator shall award the payment of his remuneration and expenses on the general principle that costs should follow the event, except where it appears to the Adjudicator that in the circumstances this is not appropriate in relation to the whole or part of his remuneration or expenses. The parties agree to be bound by the Adjudicator's allocation of payment of his remuneration and expenses and shall pay such remuneration and expenses in accordance with the Adjudicator's direction unless and until the direction of the Adjudicator is set aside or revised by the Courts pursuant to clause 7 hereto; (d) all information of whatever nature provided to the Adjudicator by any party shall be copied to all other parties or ( where copying is not practicable ) the other parties shall be entitled to inspect it. |
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SCHEDULE 4 - Adjudication Procedures for Construction Act Disputes |
| 1 Forthwith upon the agreement or determination of his terms of remuneration the Adjudicator shall notify the parties to the Construction Act Dispute in writing of his appointment ( "Notice of Construction Act Appointment" ) and the address and the facsimile, if any, at which notices or other communications should be addressed to him. |
| 2 All notices, written submissions and any other written communications between the parties to the Construction Act Dispute and the Adjudicator shall either be delivered by hand, sent by facsimile or sent by first class pre-paid post or recorded delivery and shall in each case be copied simultaneously ( delivered or sent as aforesaid ) to the other parties. Copies by way of confirmation of all communications by facsimile between the parties to the Construction Act Dispute and the Adjudicator shall also be sent by first class post not later than the business day next following the date of the original facsimile transmission. |
| 3 Within 7 days of receipt of the Notice of Construction Act Appointment each party to the Construction Act Dispute may make one written submission to the Adjudicator and within 7 days from the date of receipt of the written submission of any other party to the Construction Act Dispute may make a written response to that other party's submission. Any submission made by any party shall contain copies of all documents on which that party wishes to rely ( or a list of such documents if they are already in the possession of any other party to the Construction Act Dispute ). All written submissions and written responses shall either be delivered by hand or sent by facsimile or post in accordance with paragraph 2 of this Schedule 4 within the relevant periods referred to in this paragraph 3. The Adjudicator shall consider such written submissions and written responses as may be made by the parties pursuant to this paragraph 3. |
| 4 The Adjudicator may take the initiative in ascertaining the facts and the law in relation to the Construction Act Dispute. |
| 5 The Adjudicator may with the consent of the parties to the Construction Act Dispute seek legal or technical advice from consultants whose appointment by the Adjudicator ( including terms of remuneration ) is subject to the approval of the parties to the Construction Act Dispute. |
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6 The Adjudicator may, in his discretion, but shall not be obliged to: (b) submit lists of questions to the parties to the Construction Act Dispute to be answered in such meetings or in writing within such reasonable time as he may require; (c) require the parties to the Construction Act Dispute to provide him with such information, access and other facilities as he may reasonably require for the determination of the Construction Act Dispute; (d) otherwise take such action and adopt such procedures as do not conflict with any of the provisions of the Agreement or this Schedule 4 and shall be reasonable and proper for the just, expeditious and economical determination of the Construction Act Dispute; (e) inspect any part of the Underground Network. |
| 7 The Adjudicator shall adopt any other procedures ( including any variation of the procedures provided for under this Schedule 4 ) which may be agreed between the parties to the Construction Act Dispute for determination of the Construction Act Dispute. |
| 8 The Adjudicator shall act impartially and as an expert ( not as an arbitrator ) in the conduct of the reference and in reaching his decision. |
| 9 All information of whatever nature provided to the Adjudicator by any party to the Construction Act Dispute shall be copied to the other parties or ( where copying is not practicable ) the other parties to the Construction Act Dispute shall be entitled to inspect it. |
| 10 All meetings shall be private and save as expressly provided in this Schedule 4 or as required by law the Adjudicator shall keep confidential the Construction Act Dispute, all information of whatever nature provided to him by or on behalf of any party and his decision. |
| 11 No decision given by any Contract Manager shall disqualify him from appearing before the Adjudicator and answering ( orally or in writing ) questions put by the Adjudicator on any matter whatsoever relevant to the Construction Act Dispute. |
| 12 The Adjudicator shall not be liable for anything done or omitted in the discharge or purported discharge of his functions as adjudicator unless the act or omission is in bad faith. The parties also agree that any employee or agent of the adjudicator is similarly protected from liability. |
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13 Where Alstom becomes, in accordance with the provisions of clause 5.2, a party to a reference to an Adjudicator: (b) subject to any agreement of the parties, the Adjudicator shall allocate payment of his remuneration and expenses between the parties. Unless the parties agree otherwise, the Adjudicator shall award payment of his remuneration and expenses on the general principle that costs should follow the event, except where it appears to the Adjudicator that in the circumstances this is not appropriate in relation to the whole or part of his remuneration and expenses. The parties agree to be bound by the Adjudicator's allocation of payment of his remuneration and expenses and shall pay such remuneration in accordance with the Adjudicator's direction unless and until the direction of the Adjudicator is set aside or revised by the Courts pursuant to clause 7 hereto; (c) all information of whatever nature provided to the Adjudicator by any party shall be copied to all other parties or ( where copying is impracticable ) the other parties shall be entitled to inspect it. |
