Climate clause

Sustainable Connectivity in Rail Franchise Agreements

Sava's Clause

Requirements within franchise agreements for rail operators to use a certain percentage of low emissions vehicles and to think of long-term sustainability solutions, beyond their own franchise.

This is a climate clause

This clause brings climate considerations to your drafting. It is not yet net zero aligned. To align this clause with net zero, use our toolkit or join one of our events.

Skip to clause

Why use this?

This clause creates obligations for rail franchise operators to consider sustainability in their ancillary/ replacement transport services, an element of the transport sector that might otherwise be overlooked in the transition to net zero. Operators are obliged to use an increasing percentage of low emissions vehicles over the course of an existing franchise and to provide a sustainability plan as part of the bid process for a new franchise agreement.

Disclaimer - please read

The clauses on this website (and published in our Climate Contract Playbook) have been prepared in good faith on a pro bono basis and are free to download and use. The clauses have been drafted and edited by a variety of lawyers and, as such, the approaches to drafting may not conform to any particular drafting norms. We acknowledge this as a consequence of the collaborative drafting process.

The clauses on this website (and published in our Climate Contract Playbook) are provided on an ‘as is’ basis and without any representation or warranty as to accuracy or that the clauses will achieve the relevant climate goal or any other outcome.

This website (and the Climate Contract Playbook) does not comprise, constitute or provide personal, specific or individual recommendations or advice of any kind, and does not contain legal or financial advice. The clauses are precedents for legal professionals to use, amend and negotiate using their professional skill and judgement and at their own risk.

While care has been taken in the drafting of these clauses, neither The Chancery Lane Project nor any of its contributors owe a duty of care to any party in relation to their preparation and do not accept any liability for any errors or omissions, nor for any loss incurred by any person relying on or using these clauses or any other person. Users should use their own professional judgement in the application of these clauses to any particular circumstance or jurisdiction or seek independent legal advice.

At present, all the clauses are based on the laws of England and Wales. We encourage the conversion of these precedent clauses for use in other jurisdictions.

The clause

Additional Definitions

Clean vehicles has the meaning given to such term within Directive 2009/33/EC, as amended by EU Directive 2019/1161.

 

Existing Definitions [from existing franchise agreement]

Committed Obligations or COs means any of the Franchisee’s obligations listed in Part 1 (Committed Obligations) of Schedule 6.2 (Committed Obligations) or any other obligation of the Franchisee expressed as a Committed Obligation under the Franchise Agreement.

Franchise means the rights tendered by the Secretary of State in the Invitation to Tender to operate railway passenger services over the Routes prescribed in paragraph 6.1 of Part 1 (Franchise Services) of Schedule 1.1 (Franchise Services and Service Development).

Franchise Period means the period commencing on the Start Date and ending on the Expiry Date or Schedule 10 (Remedies, Events of Default or Termination Events).

Start Date means the time and date stated in the Certificate of Commencement as being the time at and date on which the Franchisee is to commence operating the Franchise Services, which shall be the later of:

a) [ ]; or

b) [ ]; or

c) [ ].

Train Fleet means:

a) the rolling stock vehicles described in or required by Schedule 1.6 (The Rolling Stock);

b) any other rolling stock vehicles the Secretary of State consents to in accordance with paragraph 3 of Schedule 1.6 (The Rolling Stock).

 

Additional Conditions

Part 1 – Committed Obligations

1. Committed Obligation – Reducing the Environmental Impact:

All vehicles

[XX] The Franchisee shall ensure that, in line with the timeline set out in column 1 of the table below, that it shall meet or exceed the targets set out in column 2 of the table below in respect of the percentage of clean vehicles used by it, excluding Train Fleet and replacement bus services, in fulfilling its obligations under the Franchise Agreement.

Months from Start Date Target percentage (%) of clean vehicles
[12] months [25]%
[24] months [50]%
[36] months [75]%
[48] months [100]%

Buses

[XX] The Franchisee shall, in the event buses are used as part of the rail replacement provision:

a) ensure that appropriate interchange and waiting facilities are provided; and

b) ensure that where it procures any buses or services to provide buses, the Franchisee meets or exceeds the minimum procurement targets set out for clean vehicles under EU Directive 2019/1161 as if it applied to the Franchisee.

Part 2 – Incentivising Long-Term Change

[XX] In this context, investment or change for the purposes of transition to zero emission road transport may be considered to encompass:

a) capital investments undertaken solely by the Franchisee;

b) capital investments undertaken by the Franchisee in association with others;

c) total or partial substitution of certain train services by bus services where an enhanced service level could be provided for reduced cost or where the provision of bus services improves the overall capacity of the network or delivers other benefits;

d) changes in working practices of the Franchisee’s employees;

e) changes in the contracted roles and responsibilities between the Franchisee and its major suppliers;

f) operational changes; and

g) any proposals for the partial or total replacement of any vehicles used by the Franchisee, excluding Train Fleet, with clean vehicles, as well as the installation of any associated and/ or required infrastructure, including but not limited to electric vehicle charging points.

Join hundreds of lawyers fighting climate change

Help us and take part