Project Co-ordination Deed
For Tarrone Terminal Station
Australian Energy Market Operator Ltd
and
The AGL Hydro Partnership
and
[name of Landowner]
and
SPI PowerNet Pty Ltd
and
[name of Tenderer]
Australian Energy Market Operator Ltd
Level 12, 15 William Street
MELBOURNE VIC 3000
TEL: 03 9648 8777
FAX: 03 9648 8778
106737367
Page i
Contents
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DEFINITIONS AND INTERPRETATION
CONDITIONS PRECEDENT
RELATIONSHIP OF PARTIES
PROJECT GROUP
APPROVALS
CO-ORDINATION DURING CONSTRUCTION
PROGRESS REPORTING
OUTAGES
SHARED ACCESS AND LAYDOWN AREAS
LIABILITY CAP
CONFIDENTIALITY
FORCE MAJEURE
TERMINATION
ASSIGNMENT ETC
TERMS IMPLIED BY STATUTE
GOVERNING LAW AND JURISDICTION
NOTICES
GENERAL
5
9
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DETAILS
Date:
Parties:
1
Australian Energy Market Operator Limited
ABN 94 072 010 327
of Level 12, 15 William Street, MELBOURNE VIC 3000 (“AEMO”)
and
2
AGL HP1 Pty Limited (ABN 86 080 429 901), AGL HP2 Pty Limited
(ABN 75 080 810 546) and AGL HP3 Pty Limited (ABN 22 080 735
815) as partners in the AGL Hydro Partnership (ABN 86 076 691
481)
of Level 22, 101 Miller Street, North Sydney NSW 2060
(“Proponent”)
and
3
[AGL entity owning the Land]
of [insert] (“Landowner”)
4
SPI PowerNet Pty Ltd ABN 78 079 798 173
of [insert] (“SPI PowerNet”)
and
5
#1#
ABN #2#
of #3# (“TNSP”).
Cap Amount:
$ 10 million
Project Representatives:
AEMO:
Proponent:
Landowner:
SPI PowerNet:
TNSP:
Page 3
Address for Service of Notices:
To AEMO:
#10#
Facsimile: #11#
Attention: #12#
cc:
Level 12, 15 William Street, MELBOURNE VIC 3000
Facsimile: 03 9648 8653
Attention: #13#, Senior Manager, Legal
To Proponent:
#10#
Facsimile: #11#
Attention: #12#
To Landowner:
#10#
Facsimile: #11#
Attention: #12#
To SPI PowerNet:
#10#
Facsimile: #11#
Attention: #12#
To TNSP:
#10#
Facsimile: #11#
Attention: #12#
Recitals
A.
Proponent is constructing a wind farm and a power station near Tarrone in Western Victoria
(“Tarrone Generation”). Some of the Tarrone Generation assets will be located on the Site.
B.
TNSP is constructing an augmentation to the Victorian Transmission Network to enable the Tarrone
Generation to connect to the Victorian Transmission Network (“Tarrone Terminal Station”). TNSP
will then operate, maintain and repair the Tarrone Terminal Station and provide network services to
AEMO to enable AEMO to provide use of system services to the Tarrone Generation.
C.
SPI PowerNet is undertaking interface works (“Interface Works”) to its network to enable the
connection of the Tarrone Terminal Station. SPI PowerNet will then operate, maintain and repair the
Interface Works and provide network services to AEMO to enable AEMO to provide use of system
services to the Tarrone Generation.
D.
Landowner will:
a. lease to TNSP the portion of the Site bordered in pink in the plan contained in Attachment 1
(“Premises”) on which TNSP will construct the Tarrone Terminal Station;
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b. grant to SPI PowerNet an easement over the portion of the Site shaded in light green in the
plan contained in Attachment 1 (“SPI Easement”) in relation to the Interface Works.
E.
This Agreement sets out the co-ordination arrangements between the parties.
Operative Provisions
1
Definitions and Interpretation
Defined Terms
1.1
In this Deed, unless the context requires otherwise:
Access Rules means the rules relating to the use of the Shared Access Road set out in
Attachment 3.
AEMO Functions means the following functions in respect of the Victorian Transmission Network:
the declared network functions, the planning functions under section 49(2) of the National Electricity
Law, functions conferred by jurisdictional electricity legislation or an application Act and all related
functions.
Approvals means all planning, environmental and building approvals, authorisations, permits,
consents, licences, exemptions and the like required to be issued by or obtained from any Authority
in connection with the Site, the operation of the Tarrone Terminal Station or the performance by
each of the parties (other than AEMO) of their obligations under agreements relating to the Tarrone
Terminal Station.
Augmentation Connection Agreement means the agreement entitled “Augmentation Connection
Agreement for Tarrone Terminal Station” between TNSP and SPI PowerNet.
Authority means any government department, local government council, government or statutory
authority, body, instrumentality, minister, agency or other authority exercising administrative or
regulatory functions, excluding AEMO.
Business Day means a day (not being a Saturday or Sunday) on which banks are open for general
banking business in Melbourne.
Connection Agreement means the agreement entitled “Connection Agreement for Tarrone
Terminal Station” between TNSP and Proponent.
Constructing Parties means:
(a)
in respect of the Initial Augmentation and the Relevant Tarrone Generation Works,
Proponent, SPI PowerNet and TNSP; and
(b)
in respect of a Subsequent Augmentation, the parties undertaking construction activities in
relation to the Subsequent Augmentation, as identified by AEMO.
Control means the possession, directly or indirectly, of the power to direct the business activities of
a person, whether through ownership, statutory authority, contract or otherwise.
Coordination Committee means a committee established under clause 6.3.
Coordination Matters means the following matters in respect of an Initial Augmentation and the
Relevant Tarrone Generation Works and any Subsequent Augmentation (as the case may be):
(a)
the scheduling of any construction activities at the Site;
(b)
access to the Site (including use of the Shared Access Road);
(c)
the undertaking of any construction activities at the Site;
(d)
the performance of obligations under a Related Agreement that relate to the Site; and
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(e)
any matters related to any of the matters referred to in paragraphs (a) – (d) of this
definition.
Corporations Act means the Corporations Act 2001 (Cth).
Dispose means assign, transfer or otherwise dispose of any legal or equitable estate, either in
whole or in part, whether by sale, lease, declaration or creation of trust or otherwise.
Event of Force Majeure in respect of a party means a circumstance which satisfies all of the
following criteria:
(a)
the circumstance is beyond the reasonable control of the party;
(b)
the circumstance is not the result of:
(i)
a breach of this Deed or the provisions of any Regulatory Instrument by the party;
(ii)
an intentional act or omission (other than an act or omission expressly required by,
and carried out in accordance with this Deed) by the party; or
(iii)
a negligent act or omission by the party,
(c)
the circumstance results in the party being unable to observe or perform on time and as
required any obligation (not being an obligation to pay money) under this Deed; and
(d)
the circumstance involves one or more of the following:
(i)
acts of God, earthquakes, floods, droughts, storms, tempest, mud slides,
washaways, explosions, fires and any natural disaster;
(ii)
acts of war, acts of public enemies, terrorism, riots, civil commotions, malicious
damage, sabotage, blockade and revolution;
(iii)
acts or omissions of any Authority;
(iv)
inability to obtain or delay in obtaining any Approval; or
(v)
acts or omissions (other than a failure to pay money) of another party in the
performance of its obligations under a Related Agreement where those acts or
omissions affect the ability of the party to perform its obligations under this Deed.
Facilities means:
(a)
in respect of TNSP, the Terminal Station;
(b)
in respect of SPI PowerNet, the Interface Works;
(c)
in respect of Proponent, the Tarrone Generation; and
(d)
in respect of a person (other than TNSP) that AEMO authorises or appoints to carry out a
Subsequent Augmentation, the Subsequent Augmentation.
Initial Augmentation means the project to be constructed under each of the Project Agreements
and operated under each of the Network Services Agreements.
Law means Commonwealth, State, or local legislation, judicial, administrative, or regulatory
decrees, judgments, awards or orders and all common laws and principles of equity and, for the
avoidance of doubt, includes any Regulatory Instrument.
National Electricity Law means the National Electricity Law set out in the Schedule to the National
Electricity (South Australia) Act 1996 of South Australia, having force as a law of Victoria under
section 6 of the National Electricity (Victoria) Act 2005.
Network Services Agreements means the SPI PowerNet Network Services Agreement and the
TNSP Network Services Agreement.
Project means the Initial Augmentation or a Subsequent Augmentation.
Page 6
Project Agreements means the TNSP Project Agreement and the SPI PowerNet Project
Agreement.
Project Group means a group established under clause 4.1.
Regulatory Instrument includes:
(a)
the National Electricity Law and Rules; and
(b)
in respect of a party, any licence the party holds regulating its activities in respect of the
electricity industry.
Related Agreements means:
(a)
the Project Agreements;
(b)
the Augmentation Connection Agreement;
(c)
the Connection Agreement;
(d)
the SPI PowerNet Network Services Agreement; and
(e)
the TNSP Network Services Agreement.
Related Body Corporate is as defined in section 9 of the Corporations Act.
Relevant Tarrone Generation Works means that portion of the Tarrone Generation works to be
constructed on the Site prior to the achievement of practical completion of the Initial Augmentation.
Rules means the National Electricity Rules under the National Electricity Law.
Security Interest means any bill of sale (as defined in any statute), mortgage, charge, lien, pledge,
hypothecation, title retention arrangement, trust or power, as or in effect as security for the payment
of a monetary obligation or the observance of any other obligation.
Shared Access Road means the portion of the land shaded in orange in the plan contained in
Attachment 1.
Site is described in Attachment 1.
SPI PowerNet Project Agreement means the agreement entitled “Project Agreement for Tarrone
Interface Works” between AEMO and SPI PowerNet.
SPI PowerNet Network Services Agreement means the agreement entitled “Network Services
Agreement for Tarrone Interface Works” between AEMO and SPI PowerNet.
Subsequent Augmentation means any augmentation to the Victorian Transmission Network at the
Site authorised or agreed to by AEMO other than the Initial Augmentation.
TNSP Project Agreement means the agreement entitled “Project Agreement for Tarrone Terminal
Station” between AEMO and TNSP.
TNSP Network Services Agreement means the agreement entitled “Network Services Agreement
for Tarrone Terminal Station” between AEMO and TNSP.
Use of System Agreement means the agreement between Proponent and AEMO entitled
“Victorian Generator Use of System Agreement”.
Victorian Transmission Network means the declared transmission system for Victoria.
Wilful Breach means an intentional or reckless breach of this Deed and not a breach resulting from
an error of judgement or mistake made in good faith.
Capitalised terms not otherwise defined in this clause 1.1 are defined in the Details or Recitals and
italicised terms are defined in the National Electricity Law or the Rules.
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Construction
1.2
Unless a contrary intention appears in this document, a reference to:
(a)
this Deed includes any schedules and Attachments;
(b)
a document (including this Deed) includes the document as novated, varied, or replaced,
and despite any change in the identity of the parties;
(c)
a clause, paragraph, schedule, or Attachment is a reference to a clause, paragraph,
schedule, or Attachment to this Deed;
(d)
a clause is a reference to all its subclauses;
(e)
legislation includes subordinate legislation and other instruments under them, and
consolidations, amendments, re-enactments or replacements of any of them;
(f)
the singular includes the plural and vice versa and a gender includes all genders;
(g)
the word “person” includes a firm, a body corporate, a partnership, an unincorporated
association or an Authority and any successor entity to those persons;
(h)
a person includes a reference to the person’s executors, administrators, successors,
substitutes (including persons taking by novation) and assigns;
(i)
a party includes, where the context requires it (including in the definition of Event of Force
Majeure, and clauses 10.1 and 10.9), that person’s directors, officers, employees,
contractors, agents, any trustee, permitted assignee, liquidator, administrator, related body
corporate as defined in section 9 of the Corporations Act, and any other person authorised
by that party or over which that party should have exercised Control;
(j)
the words “includes”, “including” or “such as” are not words of limitation, and when
introducing an example, do not limit the meaning of the words to which the example relates
to examples of a similar kind;
(k)
an agreement, representation or warranty:
(i)
in favour of two or more persons is for the benefit of them jointly and each of them
severally;
(ii)
by two or more persons binds them jointly and each of them severally;
(l)
a thing (including an amount) is a reference to the whole and each part of it and a reference
to a group of persons is a reference to all of them collectively, to any two or more of them
collectively, and to each of them individually;
(m)
‘dollars’ or ‘$’ means Australian dollars;
(n)
writing includes any mode of representing or reproducing words in tangible and
permanently visible form, and includes facsimile transmissions.
1.3
If a word or phrase is defined in this Deed, other parts of speech and grammatical forms of that word
or phrase have corresponding meanings.
1.4
Headings are inserted for convenience and do not affect the interpretation of this Deed.
Time
1.5
A reference to:
(a)
a day is a reference to a period of time commencing at midnight and ending the following
midnight;
(b)
time is a reference to Melbourne time.
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1.6
If a period of time is specified and the period dates from a given day or the day of an act or event, it
is to be calculated exclusive of that day and, if a period of time is specified as commencing on a
given day or the day of an act or event, it is to be calculated inclusive of that day.
1.7
Where the day on or by which any sum is payable is a day other than a Business Day that sum must
be paid on the immediately subsequent Business Day.
1.8
If a payment prescribed under this Deed to be made by a party on or by a given Business Day is
made after 2:00 pm on that day, it is taken to be made on the next Business Day.
Contra Proferentum
1.9
In the interpretation of this Deed, no rule of construction applies to the disadvantage of one party on
the basis that that party put forward or drafted this Deed or any provision in it.
Precedence
1.10
The parties’ obligations under this Deed supplement their obligations under the Related Agreements
to which they are party, and are not intended to derogate from those obligations.
2
Conditions Precedent
2.1
This Deed only takes effect upon the execution by all parties of, and satisfaction of all conditions
precedent, under the Use of System Agreement.
2.2
AEMO must promptly notify all other parties when the condition precedent referred to in clause 2.1
is satisfied.
2.3
Notwithstanding any other provision of this Deed, if the condition precedent referred to in clause 2.1
has not been satisfied or waived by [insert date], this Deed ceases to have effect.
2.4
Only AEMO may waive the condition precedent referred to in clause 2.1.
3
Relationship of Parties
AEMO as an Authority
3.1
This Deed will not in any way unlawfully restrict or otherwise unlawfully affect the unfettered
discretion of AEMO to exercise any of its functions or powers pursuant to any Law.
3.2
Anything AEMO is required to do under any Law (other than the AEMO Functions expressly
exercised by AEMO under this Deed) will not be deemed to be an act or omission by AEMO under
this Deed and will not entitle any other party to make any claim against AEMO under this Deed or
otherwise for any costs, losses or damages, but could entitle TNSP or SPI PowerNet to make a
claim for an extension of time under the relevant Project Agreement.
No Agency, Partnership, Joint Venture or other Fiduciary Relationship
3.3
Nothing in this Deed will be construed or interpreted as constituting a relationship between the
parties as that of partners, joint venturers or any other fiduciary relationship.
3.4
Except as expressly permitted or contemplated by this Deed, a Constructing Party must not make
any representation, or do anything by commission or omission indicating that it is acting on behalf of
AEMO.
Project Representatives
3.5
Each party nominates a Project Representative to be the point of contact with that party for the
administration of this Deed. That party’s Project Representative’s actions are taken to be that
party’s.
3.6
A party may substitute its Project Representative with another person by notice to each other party.
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Subsequent Augmentation
3.7
4
If AEMO authorises or appoints a person other than TNSP to carry out a Subsequent Augmentation
(“new TNSP”):
(a)
AEMO must procure that the new TNSP enters into an accession deed with the other
parties (in terms reasonably satisfactory to the other parties) under which the new TNSP
becomes a party to this Deed with the same rights and obligations as the TNSP but only in
respect of the Subsequent Augmentation;
(b)
the parties will act in good faith and take all steps reasonably required to make new TNSP
a party to this Deed, including agreeing appropriate amendments to this Deed to reflect the
accession of the new TNSP; and
(c)
following the accession of the new TNSP to this Deed, a reference in this Deed to “TNSP”
includes the new TNSP, but only in respect of the Subsequent Augmentation.
Project Group
Establishment of Project Group
4.1
Prior to the commencement of a Project, the parties must establish a Project Group for that Project
consisting of:
(a)
a representative of each party to this Deed; and
(b)
such other members as AEMO may invite from time to time.
4.2
A Project Group will be disbanded once practical completion has been achieved in relation to that
Project and all minor outstanding items in have been completed.
4.3
A member of a Project Group may appoint a delegate to attend Project Group meetings in their
absence and to discharge their responsibilities under clause 4.
Objectives of Project Group
4.4
The objectives of a Project Group are to monitor and review the progress of the relevant Project,
including to:
(a)
facilitate full and frank discussion on all issues relating to the Project and the subsequent
operation and maintenance of the Project;
(b)
monitor the progress of the performance of works in relation to the relevant Project; and
(c)
in the case of the Initial Augmentation, review all progress reports under each Project
Agreement and monitor and review the progress, interaction and co-ordination of the
Relevant Tarrone Generation Works with the Initial Augmentation.
Meetings and Minutes
4.5
A Project Group will meet at such times as requested by a party and must meet not less frequently
than monthly.
4.6
The AEMO representative on a Project Group will convene and chair meetings of the Project Group.
4.7
AEMO will take minutes of meetings and distribute them to members of the Project Group.
Observers
4.8
AEMO may invite any advisers to attend any meeting of a Project Group as observers.
4.9
Each of TNSP, SPI PowerNet and Proponent may invite a representative of any of its subcontractors, suppliers or consultants to attend any meeting of the Project Group as an observer.
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5
Approvals
Initial Augmentation
5.1
Without limiting the Project Agreements, in relation to the Initial Augmentation:
(a)
Proponent must obtain the Approvals identified in part 1 of Attachment 2;
(b)
TNSP must obtain the Approvals identified in part 2 of Attachment 2; and
(c)
SPI PowerNet must obtain the Approvals identified in part 3 of Attachment 2.
5.2
Each of Proponent, TNSP and SPI PowerNet is solely responsible for all costs, losses, expenses
and damages associated with any application for, or modification of, the Approvals they are required
to obtain under clause 5.1.
5.3
Upon reasonable notice being given, a party that is required to obtain a particular Approval under
clause 5.1 must permit AEMO to review the Approval.
Assistance
5.4
6
Without limiting clause 5.1, a party will take all reasonable steps requested by another party to
assist the other party obtain any Approvals required for a Project.
Co-ordination during construction
Co-ordination
6.1
6.2
Each Constructing Party for a Project:
(a)
acknowledges that the works they are undertaking on the construction of the Project and
(where applicable) the Relevant Tarrone Generation Works are taking place at similar
times;
(b)
must exercise reasonable care, skill and diligence and do all things required under the
agreements related to the Project and (where applicable) the Relevant Tarrone Generation
Works (including, in the case of the Initial Augmentation, under the Related Agreements) in
a proper and professional manner;
(c)
must use reasonable endeavours to take into account each other’s works (and the points of
interface between their respective works) in completing their works; and
(d)
must work co-operatively and harmoniously with each other Constructing Party and any
other person associated with the Project and (where applicable) the Relevant Tarrone
Generation Works.
Each Constructing Party must use reasonable endeavours to cooperate and work together in good
faith to resolve any conflict on a Coordination Matter.
Coordination Committee
6.3
The Constructing Parties for a Project must establish a Coordination Committee consisting of a
representative of each Constructing Party prior to the commencement of any construction works.
6.4
A member of a Coordination Committee may appoint a delegate to attend Coordination Committee
meetings in their absence and to discharge their responsibilities under clause 6.
6.5
A Coordination Committee for a Project will be disbanded once practical completion has been
achieved in relation to that Project and all minor outstanding items have been completed (and in the
case of the Relevant Tarrone Generation Works, even if the Relevant Tarrone Generation Works
has not achieved practical completion at that time).
Objectives of Coordination Committee
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6.6
The objectives of the Coordination Committee for a Project are to provide a forum for the
Constructing Parties to consider and discuss Coordination Matters, including to:
(a)
keep each other informed as to the status of their respective works and services and to
alert each other to any actual or potential coordination, health, safety, environmental or
native title issues or risks;
(b)
plan, review and coordinate activities which need to be, or are being, undertaken for the
management of the interface between the Constructing Parties’ works;
(c)
take all reasonable steps to minimise the impact of any interference with each other's works
and the provision of services to the relevant portions of the Site; and
(d)
identify any changes to their designs or works which may impact another Constructing
Party.
Meetings and Minutes
6.7
After construction works commence at the Site in respect of a Project, the Coordination Committee
must meet not less frequently than weekly.
6.8
TNSP representative on a Coordination Committee will convene and chair meetings of the
Coordination Committee.
6.9
TNSP must take minutes of all meetings of a Coordination Committee to be taken and distributed to
each other party.
Observers
6.10
The Constructing Parties must notify AEMO of meetings of a Coordination Committee and AEMO
may, in its absolute discretion, attend those meetings as an observer.
6.11
A Constructing Party may invite a representative of any of its sub-contractors, suppliers or
consultants working on the relevant Project and (where applicable) the Relevant Tarrone Generation
Works to attend any meeting of the Coordination Committee as an observer.
Resolution of Coordination Matters
6.12
Without in any way limiting a party’s obligations under the Related Agreements, the Constructing
Parties must use reasonable endeavours to procure that any disagreement concerning a
Coordination Matter is decided by consensus among the members of the Coordination Committee.
6.13
If the Coordination Committee fails to reach a consensus on any Coordination Matter after
reasonable efforts at negotiation, AEMO will decide the matter. The parties acknowledge that if the
Coordination Committee fails to reach a consensus and AEMO decides the matter, TNSP or SPI
PowerNet may be entitled to claim an extension of time or a Variation in accordance with the
relevant Project Agreement in relation to any resulting delay in the performance of the works or
additional costs.
Day-to-day liaison
6.14
Each Constructing Party for a Project must use reasonable endeavours to liaise with each other
(and other contractors or suppliers performing works and providing services to that Project) on the
performance of their work in relation to that Project and (where applicable) the Relevant Tarrone
Generation Works.
6.15
Each Constructing Party must use reasonable endeavours to:
(a)
liaise on completion dates and any actual or projected changes to those dates and the
interface between their delivery programs relating to the Project and (where applicable) the
Relevant Tarrone Generation Works;
(b)
liaise on access to the Site, use of access routes, transport of goods to the Site and within
the Site and security of the Site;
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(c)
plan, program and carry out the construction of their component of the Project and (where
applicable) the Relevant Tarrone Generation Works in a manner so as to minimise any
interference with the carrying out of the other parties’ components of that Project and
(where applicable) the Relevant Tarrone Generation Works; and
(d)
monitor, manage and coordinate the integration of their works in relation to that Project and
(where applicable) the Relevant Tarrone Generation Works.
7
Progress reporting
7.1
Each month, each Constructing Party for a Project must provide the other Constructing Parties for
that Project with a report setting out progress with regard to the works it is undertaking in relation to
the Project and (where applicable) the Relevant Tarrone Generation Works, including:
(a)
any anticipated delays;
(b)
any changes to their designs or works that may impact another Constructing Party; and
(c)
any proposed and actual mitigating measures.
7.2
A report under clause 7.1 may be provided during a meeting of the Coordination Committee for the
Project.
7.3
Each Constructing Party must give AEMO a copy of any report under clause 7.1 promptly after
providing it.
8
Information
Intellectual Property Rights
8.1
The provision of information by a party to any other party under this Deed does not give rise to any
intellectual property rights in the recipient party.
8.2
Each party grants to each other party a perpetual, irrevocable non-exclusive licence to copy and use
any intellectual property rights in any information for the purposes of meeting their obligations under
the Related Agreements and, in the case of AEMO, carrying out the AEMO Functions.
Disclaimer as to Plan
8.3
Proponent makes no representation and gives no warranty in respect of the plan contained in
Attachment 1 or the accuracy or adequacy of that plan. The Constructing Parties acknowledge that
they have reviewed and carefully checked the plan to ensure that it is adequate for the purpose of
carrying out their respective Projects.
9
Outages
9.1
On the first Business Day of each month, each of the TNSP, SPI PowerNet and the Proponent must
provide to AEMO an outage plan (“Outage Plan”). The Outage Plan must identify in respect of the
relevant parties’ Facilities:
9.2
(a)
the work likely to require outages over the next 12 months;
(b)
the expected periods when outages will be required over the next 12 months;
(c)
for each planned outage:
(i)
the expected duration of the outage; and
(ii)
the expected maximum recall time.
TNSP, SPI PowerNet and Proponent must use reasonable endeavours to:
(a)
minimise the number and duration of outages in respect of their Facilities;
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9.3
10
(b)
co-ordinate outages in respect of their Facilities with the other parties and other affected
persons;
(c)
minimise recall times; and
(d)
advise AEMO in advance if it anticipates that a forecast outage is expected to vary from the
Outage Plan.
Except with AEMO’s consent, TNSP and SPI PowerNet must ensure that in respect of their
Facilities:
(a)
planned outages are taken between the months of March and November;
(b)
planned outages are taken between the hours of 7am and 5pm;
(c)
there are no more than 3 outages per week; and
(d)
planned outages are not taken on weekends or public holidays.
Shared Access and Laydown Areas
Licence to Shared Access Road
10.1
The Landowner grants to each of TNSP, SPI PowerNet and Proponent a non-exclusive licence to
use the Shared Access Road for the purposes of undertaking a Project and (where applicable) the
Relevant Tarrone Generation Works and accessing their Facilities.
10.2
The licence granted under clause 10.1 extends to the right to bring plant, equipment, machinery,
vehicles and goods on and over the Shared Access Road.
Obligations as to Shared Access Road
10.3
Subject to clause 10.4, Landowner will be responsible for:
(a)
the design and construction of the Shared Access Road; and
(b)
the maintenance and repair of the Shared Access Road,
in accordance with the Access Rules.
10.4
TNSP, SPI PowerNet or Proponent (as applicable) must reimburse to Landowner the reasonable
cost of repairing any damage to the Shared Access Road caused by that party's use of the Shared
Access Road otherwise than in accordance with the Access Rules.
10.5
If TNSP or SPI PowerNet propose to construct a Subsequent Augmentation, TNSP or SPI
PowerNet (as the case may be) must, prior commencing the Subsequent Augmentation, undertake
an existing conditions survey of the Shared Access Road (and provide a copy of that survey to the
other parties).
10.6
Prior to Proponent’s commencing the Tarrone Generation works after the achievement of practical
completion of the Initial Augmentation, Proponent must undertake an existing conditions survey of
the Shared Access Road and provide a copy of that survey to the other parties.
10.7
TNSP, SPI PowerNet or Proponent (as applicable) must:
10.8
(a)
undertake and complete (at its sole cost) any necessary work on the Shared Access Road
in order to construct that Subsequent Augmentation or the relevant part of the Tarrone
Generation works (whichever is applicable); and
(b)
return the Shared Access Road to a condition at least as good as in the survey condition
report.
Upon signing of this Deed, the Constructing Parties for the Initial Augmentation must meet and
endeavour to agree a traffic management plan for the purpose of the performance of the works by
the Constructing Parties.
Laydown Areas
Page 14
10.9
Landowner grants to the TNSP and SPI PowerNet a non-exclusive right to use separate portions of
the Site near their respective works (each referred to as a "Laydown Area") as is nominated by
Landowner and is reasonably required for the purposes of carrying out the relevant Project.
10.10
In exercising the rights granted under clause 10.9, TNSP and SPI PowerNet must:
(a)
comply with this Deed;
(b)
not unreasonably prevent or interfere with Proponent’s activities on the Site;
(c)
ensure the Laydown Area is only used for the purposes of carrying out the relevant Project;
and
(d)
make good the Laydown Area at the completion of the relevant Project.
Obligations when accessing the Site
10.11
To the extent that a party has control over the workplace where any works are to be performed, that
party will ensure that the workplace for those works and the means of access to and egress from the
workplace for those works are safe and without risk to health as required by the Occupational Health
and Safety Act (Vic) 2004.
10.12
For the avoidance of doubt:
10.13
10.14
(a)
TNSP will have control over the Premises and any Laydown Area nominated by Landowner
under clause 10.9;
(b)
SPI PowerNet will have control over the SPI Easement, any Laydown Area nominated by
Landowner under clause 10.9 and the SPI PowerNet Access Route referred to in clause
10.18; and
(c)
Proponent will have control over the balance of the Site (including the Shared Access
Road).
Subject to clause 10.12, the parties will agree on the division of responsibilities under the
Occupational Health and Safety Act (Vic) 2004 in relation to:
(a)
the interface between each workplace; and
(b)
any proposed change in the party who will have control of that interface during the
undertaking of the works.
Landowner hereby:
(a)
appoints TNSP and SPI PowerNet, respectively, as the principal contractor for the
purposes of the Occupational Health and Safety Regulations 2007 (Vic) (“OHS
Regulations”) for any ‘construction work’ (as that term is defined in the OHS Regulations)
carried out on any part of the Site over which TNSP or SPI PowerNet (as the case may be)
has control; and
(b)
authorises TNSP and SPI PowerNet, respectively, to manage and control the workplace for
the construction work referred to in paragraph (a) to the extent necessary to discharge the
duties imposed on a principal contractor under the OHS Regulations in relation to that
workplace.
10.15
A party must ensure that, before an officer, employee, contractor or agent (“Representative”) of the
party enters a portion of the Site under the control of another party for the first time, the
Representative undertakes an induction program specified by the other party (if any).
10.16
Any induction program specified for the purposes of clause 10.15 must be reasonable and of
general application to all persons entering the relevant portion of the Site.
10.17
At any time while a party’s Representatives are on a portion of the Site under the control of another
party, the first party must use reasonable endeavours to ensure that the Representative:
(a)
causes as little interference to that potion of the Site as possible;
Page 15
(b)
observe the requirements of each other party on safety, health, environmental and
industrial relations matters that are of general application to all persons coming on to that
portion of the Site; and
(c)
does not ask any questions or give any direction or instruction or advice to any other party
in the execution of their obligations under a Related Agreement.
Licence across SPI Easement
10.18 Landowner will grant to SPI PowerNet in the SPI Easement a non-exclusive licence to access the
SPI Easement from the Shared Access Road over that portion of the Site as is nominated by
Landowner (“SPI PowerNet Access Route”) and is reasonably required for the purposes of
accessing the SPI Easement for carrying out the relevant Project.
10.19
The indicative area for the SPI PowerNet Access Route is the area shaded in [??] in the plan
contained in Attachment 1.
10.20
In exercising the rights granted under clause 10.18, SPI PowerNet must:
(a)
comply with this Deed;
(b)
not unreasonably prevent or interfere with the TNSP's and the Proponent’s activities on the
Site;
(c)
ensure the SPI PowerNet Access Route is only used for the purposes of carrying out the
relevant Project; and
(d)
make good the SPI PowerNet Access Route at the completion of the relevant Project.
10.21
As soon as reasonably possible after practical completion of the Initial Augmentation is achieved,
Landowner will arrange at its cost for a survey plan of the Site to be prepared showing the final
locations and dimensions of the Premises, the SPI Easement, the Shared Access Road, the SPI
PowerNet Access Route, the Tarrone Generation assets located at that time on the Site and any
other nominated access routes over the balance of the Site.
10.22
Landowner will provide a copy of the completed survey plan to the other parties for their comment
and approval. Once the parties have approved the final form of the survey plan, that survey plan will
replace the plan of the Site set out in Attachment 1 and the descriptions in this Deed for each of the
areas referred to in clause 10.21 will be amended to reflect the agreed descriptions in the approved
survey plan.
11
Lease
AEMO’s rights
11.1
TNSP and Landowner both agree in favour of AEMO that, where a provision of the Lease expressly
purports to confer a right or benefit on AEMO, they will:
(a)
comply with the relevant provision; and
(b)
take all other action required to ensure that AEMO has the opportunity to exercise that right
or enjoy that benefit.
Termination of Lease
11.2
If:
(a)
the Lease terminates or expires; and
(b)
any part of the Initial Augmentation or a Subsequent Augmentation is still used to provide
shared transmission services or any other services related to the Victorian Transmission
Network,
AEMO may request Landowner to enter into a replacement lease with AEMO (or a nominee of
AEMO) or a similar arrangement.
Page 16
11.3
If AEMO gives a notice under clause 11.2, AEMO and Landowner agree to negotiate in good faith a
replacement lease or alternative arrangements to continue to permit the relevant part of the Initial
Augmentation or Subsequent Augmentation to be used to provide the relevant services.
11.4
To the extent possible, the parties will endeavour to ensure that the replacement lease or alternative
arrangements are on similar terms to the Lease, and provide to AEMO (or its nominee) equivalent
security of tenure as the Lease provides to TNSP.
12
Liability Cap
Liability Cap
12.1
Subject to clause 12.2, the total amount recoverable from a party, whether in contract, tort
(including negligence) or otherwise, for direct or indirect claims for failure to comply with this Deed
or as a result of the application of the indemnities in this Deed, or in connection with the
performance of its obligations, or the exercise of its rights under, this Deed is limited to the Cap
Amount.
12.2
Clause 12.1 does not apply to any claims that arise from a Wilful Breach by the party, and any such
amount will not be taken into account in determining whether the Cap Amount has been reached in
aggregate.
Consistency
12.3
In the event of any inconsistency between clause 12 and any other provision in this Deed, clause
12 prevails.
National Electricity Law
12.4
This Deed does not vary or exclude the operation of section 119, 120 or 120A, or any similar
section, of the National Electricity Law.
13
Confidentiality
General Obligation
13.1
Subject to clauses 13.2 and 13.3, this Deed and all information exchanged between the parties
under this Deed or during the negotiations preceding the signing of this Deed is confidential and
must not be disclosed to any person except:
(a)
by a party to its legal and other professional advisers, auditors and other consultants and
employees of:
(i)
that party; or
(ii)
that party's Related Bodies Corporate,
requiring the information for the purposes of this Deed (or any transactions contemplated
by it) or for the purposes of performing functions under the Regulatory Instruments or for
the purpose of advising that party;
(b)
by a party to another party to enable the other party to perform its obligations under a
Related Agreement;
(c)
by a party to their sub-contractors to the extent necessary for the purpose of performing the
relevant sub-contract;
(d)
by AEMO to a person AEMO authorises or appoints to carry out a Subsequent
Augmentation;
(e)
with the consent of the party who provided the information;
(f)
as required by Law or by a Lawful requirement of an Authority;
Page 17
(g)
to the extent required by a Lawful requirement of any stock exchange having jurisdiction
over a party or its Related Bodies Corporate;
(h)
if required in connection with legal proceedings or any other form of dispute resolution
process relating to this Deed;
(i)
by AEMO to the person who is responsible for authorising the switching of equipment on
the Victorian Transmission Network;
(j)
by the Proponent to the joint venture parties Macarthur Wind Farm Pty Limited A.C.N. 106
134 507 and Meridian Wind Macarthur Pty Limited A.C.N. 124 383 688 and the Related
Bodies Corporate of each of them for the purpose of keeping those parties informed
concerning a Project and the compliance of the Proponent with its obligations under this
Deed and the exercise by the Proponent of its rights under this Deed; or
(k)
if the information is at the time generally and publicly available other than as a result of
breach of confidence by the party wishing to disclose the information or a person to whom it
has disclosed the information.
Representatives to Keep Information Confidential
13.2
A party wishing to disclose information under clause 13.1(a), (b), (c), (d), (g) or (j) must:
(a)
inform the proposed recipient of the confidentiality of the information to be disclosed; and
(b)
require the proposed recipient to take effective precautions to ensure the proposed
recipient keeps the information to be disclosed confidential and only discloses it in the
circumstances specified in clause 13.1.
Notice to other Parties
13.3
If a party receives a request from an Authority or stock exchange, and compliance with the request
would result in the disclosure of confidential information under clause 13.1(f) or (g), the party must
promptly inform the other parties of the request.
14
Force Majeure
Effect on Performance of Obligation
14.1
Subject to clause 14.2(b) and to a party's compliance with clause 14.3, if a party is unable to
perform on time and as required any obligation (not being an obligation to pay money) under this
Deed by reason of the occurrence of an Event of Force Majeure, that obligation (“Affected
Obligation”) is suspended to the extent that the party's ability to perform it is affected by that Event
of Force Majeure.
Obligation to Mitigate
14.2
(a)
If an Event of Force Majeure occurs, the party affected must, as soon as practicable after
the occurrence of that Event of Force Majeure, use reasonable endeavours (including
incurring any reasonable expenditure of funds and rescheduling manpower and resources)
to mitigate the consequences of that Event of Force Majeure and minimise any resulting
delay in the performance of the Affected Obligation. The consequence of a failure by the
party to comply with its obligation under this paragraph (a) to minimise delay is limited to a
reduction in the period of suspension in accordance with paragraph (b).
(b)
The period of suspension under clause 14.1 excludes any delay in the performance of the
Affected Obligation attributable to a failure by the party affected to comply with paragraph
(a). The degree to which an obligation is suspended under clause 12.1 is reduced to the
extent of the party's inability to perform the obligation attributable to a failure by that party to
comply with paragraph (a).
Page 18
(c)
Notwithstanding anything in clause 14.2 to the contrary, the party affected by the Event of
Force Majeure is not obliged to incur any expenditure insofar as an Event of Force Majeure
is caused by the breach of this Deed by any other party.
(d)
The party affected by the Event of Force Majeure bears the onus of proving that it has
complied with paragraph (a).
Obligation to Notify
14.3
If a party reasonably considers that a circumstance has arisen that constitutes or is likely to
constitute or result in an Event of Force Majeure that party must:
(a)
as soon as reasonably practicable thereafter (but not later than 3 Business Days following
the date on which the party first became aware of the occurrence of the circumstance), give
the other party notice of that circumstance and of the Affected Obligations;
(b)
keep the other party informed both at reasonable intervals and upon request by the other
party, as soon as practicable following the receipt of that request, of:
(c)
15
(i)
the party's estimate of the likely duration of the Event of Force Majeure;
(ii)
the action taken and the action proposed to be taken by the party in complying
with clause 14.2(a);
(iii)
the cessation of the Event of Force Majeure or the successful mitigation or
minimisation of the effects of the Event of Force Majeure; and
any other matter the other party may reasonably request in connection with the occurrence
of the Event of Force Majeure.
Termination
This Deed continues until the Tarrone Terminal Station is decommissioned by AEMO.
16
Assignment Etc
16.1
Subject to clauses 16.2 to 16.6, a party must not, without the consent of the other parties:
16.2
(a)
create or allow to exist or alter the terms of a Security Interest over its rights in this Deed;
and
(b)
Dispose of or deal with its rights in this Deed.
Landowner must not Dispose of or deal with the Site, unless the proposed disposee has executed a
deed in favour of the other parties (and in a form and substance satisfactory to the other parties)
under which the disposee becomes a party to this Deed, and bound to perform the Landowner’s
obligations under this Deed.
Disposal of Project
16.3
A party must give its consent to another party Disposing of its rights in this Deed if the first party is
satisfied (acting reasonably) that:
(a)
the proposed disposee has executed a deed in favour of the first party (and in a form and
substance satisfactory to the first party) under which the disposee becomes a party to this
Deed and the relevant Related Agreements, and bound to perform the disposing party’s
obligations under those documents; and
(b)
the proposed disposee has also acquired a corresponding portion of the disposing Party’s
interest in the Related Agreements to which it is a party or will do so by the time of the
disposal.
Page 19
Conditions
16.4
AEMO may impose conditions on any consent given under clause 16, including a condition that any
person having the benefit of a proposed Security Interest execute and deliver to AEMO a deed (in
form and substance satisfactory to AEMO) setting out the terms on which the holder of the Security
Interest may exercise its rights in relation to the Security Interest).
Costs
16.5
The disposing party must reimburse all of the continuing parties’ costs associated with giving
consent, or considering a request that it give consent, under clause 16.
Replacement for AEMO
16.6
AEMO may assign its rights and obligations under this Deed to a person who performs similar
functions to AEMO’s declared network functions in relation to the Victorian Transmission Network.
16.7
If AEMO proposes an assignment under clause 16.6, AEMO must procure that the proposed
assignee enters into a deed of assignment and assumption with the other parties in terms
reasonably satisfactory to the other parties. For the avoidance of doubt, AEMO will not be taken to
have decided to propose an assignment if legislation is enacted that effects, or requires AEMO to
seek, or enter into, such an assignment.
Reconstruction while solvent
16.8
Notwithstanding anything to the contrary in this Deed, each of the parties expressly consents to the
transfer of any party's property, rights, liabilities and obligations under or in this Deed to a Related
Body Corporate of that party pursuant to a compromise or arrangement that has been proposed for
the purposes of, or in connection with, a scheme for the reconstruction or amalgamation of that
party and approved by the Court pursuant to Part 5.1 of the Corporations Act.
17
Terms implied by Statute
17.1
Except as expressly provided to the contrary in this Deed, all terms, conditions, warranties,
undertakings, inducements or representations, whether express, implied, statutory or otherwise,
relating in any way to the subject matter of this Deed are excluded unless contained as an express
term of this Deed.
17.2
Where any Act of Parliament implies in this Deed any term, condition or warranty that avoids or
prohibits provisions in a contract excluding or modifying the application of or exercise of or liability
under such a term, condition or warranty, it is deemed to be included in this Deed, however, the
liability of a party for breach is limited to the circumstances set out in clause 12.
18
Governing Law and Jurisdiction
Governing Law
18.1
This Deed and the transactions contemplated by this Deed are governed by the Law of Victoria.
Submission to Jurisdiction
18.2
Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of
Victoria.
19
Notices
Types of Notices
19.1
A notice, approval, consent, agreement, or other communication (“communication”) required by
this Deed must be:
(a)
in writing;
Page 20
(b)
given by, or to the Project Representatives nominated for this purpose in the Details; and
(c)
left at, sent by ordinary pre-paid post or by facsimile to, the address or number specified in
the Details.
Notice Takes Effect
19.2
Unless a later time is specified in it, a communication takes effect from the time it is received.
Deemed Receipt
19.3
(a)
A communication delivered by hand to the address of a party is deemed to be received if it
is handed (with or without acknowledgment of delivery) to any person at that address who,
in the reasonable judgement of the person making the delivery (upon making appropriate
enquiries), represents themselves and appears to be an officer of the party.
(b)
A communication sent by facsimile is deemed to be received on receipt of a transmission
report confirming successful transmission.
(c)
A communication sent by email is deemed to be received upon receipt of a delivery notice
or other explicit acknowledgment of receipt.
19.4
If a communication is received on a day that is not a Business Day or after 5:00pm on a Business
Day, it is taken to be received on the next Business Day.
20
General
Waiver
20.1
A right may only be waived in writing, signed by the party giving the waiver and:
(a)
no other conduct of a party (including a failure to exercise, or delay in exercising, the right)
operates as a waiver of the right, or otherwise prevents the exercise of the right;
(b)
a waiver of a right on one or more occasions does not operate as a waiver of that right if it
arises again; and
(c)
the exercise of a right does not prevent any further exercise of that right or of any other
right.
Further assurance
20.2
Each party must at its cost and expense immediately on demand by another party perform all such
acts and execute all such agreements, assurances and other documents and instruments as the
second party reasonably requires to perfect the rights and powers afforded, created or intended by
the parties to be afforded to, or created in favour of, that other by this Deed.
Severability of provisions
20.3
If a provision of this Deed is void, unenforceable, or illegal in a jurisdiction, it is severed for that
jurisdiction. The remainder of this Deed remains effective and the validity or enforceability of that
provision in any other jurisdiction is not affected. This clause 20.3 has no effect if the severance
alters the basic nature of this Deed or is contrary to public policy.
Counterparts
20.4
This Deed may consist of a number of copies, each signed by one or more parties to this Deed. If
so, the signed copies make up one document and the date of this Deed will be the date on which the
last counterpart was signed.
Measurements
20.5
All measurements of physical quantities will be in Australian legal units of measurements in
accordance with the National Measurement Act 1960 (Cth).
Page 21
Consent or Approval of AEMO
20.6
Unless otherwise provided in this Deed, in any case where the doing of anything by a party is
dependent on AEMO’s approval or consent, AEMO may grant or withhold its approval or consent in
its absolute unfettered discretion.
Indemnities
20.7
Any indemnity in this Deed is a continuing obligation, separate and independent from the other
obligations of the parties. It is not necessary for a party to incur expense or make payment before
enforcing a right of indemnity under this Deed.
20.8
Costs, fees and expenses covered by indemnification include legal costs and disbursements
incurred by the indemnified party on a solicitor-own client basis and are not subject to taxation on a
party-and-party or any other basis.
Non-merger
20.9
The warranties, undertakings and indemnities in this Deed do not merge on the expiry or termination
of this Deed.
Moratorium
20.10
Unless application is mandatory, no present or future Law applies to this Deed so as to abrogate,
extinguish, impair, diminish, fetter, delay or otherwise prejudicially affect the rights, powers,
remedies or discretions given or accruing to AEMO or TNSP under this Deed.
Survival
20.11
Termination of this Deed for any reason does not affect:
(a)
(b)
any rights of either party against the other that:
(i)
arose prior to the time at which termination occurred; and
(ii)
otherwise relate to or may arise in the future from any breach or non-observance
of this Deed occurring prior to the termination; or
the rights and obligations of the parties under the provisions relating to rights to property,
liability and indemnity.
For the avoidance of doubt, clauses 8.2, 11, 12 and 13 survive the end of this Deed.
Page 22
Attachment 1 – Site
Attachment 2 – Approvals
Part 1 – Proponent Approvals
Copies of the following approvals are attached:

Planning Approval PL-SP/05/0283;

Vegetation Clearing Permits PL09/251 and PL09/252; and

Cultural Heritage Management Plans 10875 and 10554.
Part 2 – TNSP Approvals
Part 3 – SPI PowerNet Approvals
Part 4 – Landowner Approvals
Any approvals required for the construction and operation of the Shared Access Road in the manner contemplated
by this Deed.
Page 2
Attachment 3 – Access Rules
1.
Landowner's initial obligations
1.1
Landowner will be responsible for the design and construction of the Shared Access Road so that the
Shared Access Road (once constructed) is fit for the following purposes:
(a)
the construction of the Initial Augmentation and those portions of the Tarrone Generation to be
located on the Site; and
(b)
the operations of the Initial Augmentation and those portions of the Tarrone Generation to be
located on the Site,
in accordance with this Deed, the Connection Agreement and the Lease.
2.
Use of Shared Access Road - Initial Augmentation
2.1
The Project Representatives must meet within 20 Business Days of the signing of this Deed and endeavour
to agree any procedures, protocols, rules or requirements to be observed when using the Shared Access
Road (including Landowner's requirements in relation to safety, health and environmental matters that are
of general application to all persons using the Shared Access Road).
2.1
The Landowner Project Representative will be responsible for coordinating access to and use of the Shared
Access Road in accordance with the traffic management plan and any other procedures, protocols, rules or
requirements agreed between the Project Representatives from time to time.
2.2
Each Project Representative must:
(a)
liaise with the Landowner Project Representative concerning its party's proposed access to the
Site and use of the Shared Access Road; and
(b)
ensure that its party's access to the Site and use of the Shared Access Road complies with the
traffic management plan and any other procedures, protocols, rules or requirements agreed
between Project Representatives from time to time.
2.3
Nothing in these Access Rules will prevent a party using the Shared Access Road in an emergency.
3.
Maintenance
3.1
Landowner will be responsible for maintaining the Shared Access Road so that it continues to satisfy the
requirements set out in paragraph 1 and in any routine maintenance program agreed under paragraph 3.2.
3.2
Following practical completion of the Initial Augmentation, the Project Representatives must meet and
endeavour to agree on a routine maintenance program for the Shared Access Road.
4.
General
4.1
Each party must:
(a)
use the Shared Access Road in accordance with the traffic management plan and any other
procedures, protocols, rules or requirements agreed between Access Representatives from time to
time;
(b)
not use the Shared Access Road in a manner that may interfere with any operations on, or with
any use of, or cause damage to, the Site or people on the Site;
(c)
not allow anyone to use the Shared Access Road or do anything on the Shared Access Road that
is or may become an annoyance, nuisance, grievance or disturbance to anyone on the Site;
(d)
use the Shared Access Road in a safe manner, so that no death, injury or disease is caused to any
person or unnecessary damage is caused to any property; and
(e)
use the Shared Access Road in a manner that minimises, to the extent reasonably possible taking
into account the relevant use, any damage to the Shared Access Road
Page 3