Project Agreement
for Tarrone Terminal Station
Australian Energy Market Operator 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
Contents
1Definitions and Interpretation
2Conditions Precedent
3Completion of the Project
4AEMO’s Functions
5Site
6Delivery
7Design
8Construction
9Variations
10Time
11Factory Acceptance Tests
12Commissioning Testing
13First Energisation
14Practical Completion
15Minor Outstanding Items
16Liability Cap
17Loss or Damage and Insurance
18Intellectual Property
19Confidentiality
20Force Majeure
21Breach and Termination
22Dispute Resolution Procedure
23Representations and Warranties
24Assignment etc
25Governing Law and Jurisdiction
26Notices
27General
Project AgreementPage 1
DETAILS
Date:Parties: / 1Australian Energy Market Operator Limited
ABN 94 072 010 327
of Level 12, 15 William Street, Melbourne VIC 3000 (“AEMO”)
and
2#1#
ABN #2#
of #3# (“TNSP”).
Project: /
TarroneTerminal Station more particularly described in Attachments 1 and 2.
Proponent: / 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)Date for Practical Completion / 1 May 2012
Project Representatives: / AEMO:
TNSP:
Cap Amount: / $ 10 million
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 TNSP:
#14#
Facsimile: #15#
Attention: #16#
Recitals
- This Agreement and the Related Agreements set out the terms and conditions on which TNSP will finance, plan, design, construct,commission and own the Project.
- A Network Services Agreement to be entered into on or about the date of this Agreement sets out the terms on which TNSP will, operate, maintain and repair and augment the Facilitiesfor an agreed period after the Date of Practical Completion.
Operative Provisions
1Definitions and Interpretation
Defined Terms
1.1In this Agreement, unless the context requires otherwise:
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 Project, the Site or the performance by TNSP of its obligations under this Agreement.
Augmentation Connection Agreement meansthe agreement between TNSP and SPI PowerNetentitled “Augmentation Connection Agreement for Tarrone Terminal Station”.
Australian Standards means the standards issued from time to time by Standards Australia.
Authoritymeans 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.
Certificate of Practical Completion means a certificate issuedby AEMO under clause14.9.
Claim includes any claim or demand for losses, liabilities, costs or expenses of whatever nature(whether arising under breach of contract, in tort including negligence or otherwise at Law) in connection with this Agreement, the Project, Project Works or a Related Agreement.
Commissioning Test means, in relation to an item of plant or equipment, a test under clause12.
Commissioning Test Program means the program of Commissioning Tests to be carried out by TNSPunder clause12.
Connection and Connect have the same meaning as in the Network Services Agreement.
Connection Agreement meansthe agreement between TNSP and Proponententitled “Connection Agreement for Tarrone Terminal Station”.
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.
Corporations Actmeans the Corporations Act 2001 (Cth).
Date of Practical Completion means the date determined in accordance with clause14.8.
DefaultEventmeans:
(a)TNSP displays an intention to abandon the Project or a material part of the Project;
(b)TNSP Disposes, or attempts to Dispose, of the Project or its interest in this Agreement or the Network Services Agreement, other than in accordance with the relevant agreement;
(c)a failure by either party to pay any amount under this Agreement or a Related Agreement; or
(d)any other breach of this Agreement by a party (including a failure to achieve Practical Completion by the Date for Practical Completion).
Defaulting Party means the party subject to a Default Event.
Defect means any part of the Project not in accordance with this Agreement.
Delivery Program means the design, construction and commissioning plan prepared by TNSP, a copy of which appears at Attachment 6.
Design Brief means the information set out in Attachments 1, 2, 3, and4.
Design Documentation means all drawings, plans, reports, computer records, models and specifications (whether in hard copy or electronic form) prepared by or on behalf of TNSP in performing the Project Works.
Dispose meansassign, transfer or otherwise dispose of any estate in Law, whether by sale, lease, declaration or creation of trust or otherwise.
Disputemeans:
(a)a disagreement or difference of opinion between the parties as to any matter in connection with this Agreement, including any breach, termination, validity or its subject matter; or
(b)a failure of the parties to reach agreement on a matter where this Agreement requires agreement or requires the parties to negotiate in good faith with a view to reaching agreement.
Event ofForce Majeure means a circumstance that satisfies all of the following criteria:
(a)the circumstance is beyond the reasonable control of TNSP;
(b)the circumstance is not the result of:
(i)a breach of this Agreement or any relevant Law by TNSP;
(ii)an intentional act or omission (other than an act or omission expressly required by, and carried out in accordance with this Agreement) by TNSP; or
(iii)a negligent act or omission by TNSP;
(c)the circumstance results in TNSP’s being unable to observe or perform on time and as required any obligation (not being an obligation to pay money) under this Agreement; and
(d)the circumstance involves one or more of the following:
(i)acts of God, earthquakes, floods, droughts, storms, tempest, mudslides, washaways, explosions, fires and any other 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 or AEMO; or
(iv)acts or omissions (other than a failure to pay money) of SPI PowerNet in the construction of the Interface Works where those acts or omissions affect the ability of TNSP to perform its obligations under this Agreement.
Facilities means the equipment or facilities provided and maintained by TNSP primarily to provide the Network Services (as defined in the Network Services Agreement).
First Energisation Criteria has the meaning given to it in Attachment 4.
Functional Requirements means the matters set out in Attachment1.
High Voltage Grid means the electrical system for the Transmission of electricity together with associated protection, control, alarm, communication equipment, metering and operation systems, including the Victorian Transmission Network.
Interface Works means the works to be carried out by SPI PowerNet under the agreement between SPI PowerNet and AEMO entitled “Project Agreement for the Tarrone Interface Works” and, for the avoidance of doubt, the Project does not include the Interface Works.
Insolvency Event means, in relation to TNSP, any of the following events:
(a)a receiver, manager, receiver and manager, trustee, administrator, controller (as those terms are defined in the Corporations Act) or similar officer is appointed in respect of TNSP or any asset of TNSP;
(b)a liquidator or provisional liquidator is appointed in respect of TNSP;
(c)any application (not being an application withdrawn or dismissed within 5 Business Days) is made to a court for an order, or an order is made, or a meeting is convened, or a resolution is passed, for the purpose of:
(i)appointing a person referred to in paragraph (a) or (b);
(ii)winding up TNSP; or
(iii)proposing or implementing a scheme of arrangement in respect of TNSP;
(d)a moratorium of any debts of TNSP or an official assignment or a composition or an arrangement (formal or informal) with TNSP's creditors or any similar proceeding or arrangement by which the assets of TNSP are subjected conditionally or unconditionally to the control of TNSP’s creditors is ordered, declared or agreed to, or is applied for and the application is not withdrawn or dismissed within 5 Business Days;
(e)TNSP becomes, admits that it is, is declared to be, or is deemed under any applicable Law to be, insolvent or unable to pay its debts;
(f)any writ of execution, garnishee order, mareva injunction or similar order, attachment, distress or other process is made, levied or issued against or in relation to a substantial proportion of the assets of TNSP; or
(g)anything that has a substantially similar effect to any of the events set out in paragraphs (a) to (f).
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.
Lease means the lease between Proponent and TNSP in relation to the Site.
Milestone Completion means, for a Milestone Event, that stage in thedesign, construction and commissioning of the Project when the Milestone Event has been completed in accordance with this Agreement, except for any Minor Outstanding Items.
Milestone Date means each of the milestone dates set out in Attachment6.
Milestone Event means each of the milestone events set out in Attachment6.
Minor Outstanding Items has the meaning given to it in clause 15.1.
National Electricity Law means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996(SA), having force as a law of Victoria under section 6 of the National Electricity (Victoria) Act 2005 (Vic).
Native Title Application means any claim or application under any Law relating to native title, including any application under:
(a) section 61 of the Native Title Act 1993 (Cth);
(b) the Aboriginal and Torres Strait Islander Heritage Act 1984 (Cth);
(c) the Land Titles Validation Act 1994 (Vic); or
(d) any future Law in respect of the same subject matter,
that, if successful, would substantially derogate from TNSP’s ability to perform its obligations under this Agreement.
Network Services Agreement means the agreement between the parties entitled “Network Services Agreement for Tarrone Terminal Station”.
Non-Defaulting Party meansthe party not subject to a Default Event.
Outstanding Completion Items Listmeans a list issued by AEMO under clause 14.2(b) or an updated list issued by AEMO under clause 14.5(b), as supplemented by any additions to that list notified by AEMO under clause 14.7.
Performance Criteriaare defined in Attachment 2 of the Network Services Agreement.
Planning Permit means any permit issued or required to be issued by the relevant Authority for the use and development of the Project as contemplated by this Agreement.
Practical Completion means that stage in the Project whenthe Practical Completion Criteria are satisfied, except for any Minor Outstanding Items.
Practical Completion Criteria has the meaning given to that term in Attachment 4.
Project Co-ordination Deed means the agreement between TNSP, Proponent, SPI PowerNet and AEMO entitled “Project Co-ordination Deed for the Tarrone Terminal Station”.
Project Worksmeans all things that have to be carried out by TNSP to satisfy every obligation arising out of this Agreementand the Project Co-ordinationDeed, includingthe obtaining of Approvals, financing, planning, project managing, design, construction, installation, inspection, testing, commissioning, and other works required toensure that the Project meets the Performance Criteria and is complete as contemplated by Attachments 1 and 2and fit for the purpose contemplated in the Network Services Agreement.
Quality Assurance Plan has the meaning given in clause 8.4.
Regulatory Instrumentincludes:
(a)the National Electricity Law and Rules; and
(b)in respect of a party, any licence the party holdsregulatingits activities in respect of the electricity industry.
Related Agreements means the Network Services Agreement, Project Co-ordination Deed, Tripartite Deed, the Lease, the Connection Agreement and the Augmentation Connection Agreement.
Related Body Corporate is as defined in section 9 of the Corporations Act.
Relevant Generator means the Generator in respect of agenerating systemConnected to the Victorian Transmission Network by means ofthe Project.
Rules means the National Electricity Rules under the National Electricity Law.
Scope of Works means the scope of works described in Attachment2.
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.
Siteis described inAttachment8.
SPI Network Services Agreement means the agreement between SPI PowerNet and AEMO entitled “Network Services Agreement for Tarrone Interface Works”.
SPI PowerNet means SPI PowerNet Pty Ltd ABN 78 079 798 173.
SPI Project Agreement means the agreement between SPI PowerNet and AEMO entitled “Project Agreement for Tarrone Interface Works”.
TOC means the person who is responsible for authorising the switching of equipment on the Victorian Transmission Network.
Transmission means the transfer of electricity in bulk at 66kV and above.
Transmission Charge has the meaning given to that term in the Network Services Agreement.
Transmission Underwriting Charge has the meaning given to that term in the Transmission Use of System Agreement.
Tripartite Agreement means the agreement between TNSP, Proponent and AEMO entitled “Tripartite Agreement for Tarrone Terminal Station”.
Use of System Agreement means the agreement between Proponent and AEMO entitled “Use of System Agreement for Victorian Transmission Network Services for Tarrone Generation”.
Variationmeans any change to this Agreement.
Variation Ordermeans a direction issued by AEMO to TNSP expressly stating that it is a Variation Order underclause 9.5.
Victorian Transmission Networkmeans the declared transmission system for Victoria.
Wilful Breach means an intentional or reckless breach of this Agreement 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 and italicised terms are defined in the National Electricity Law or the Rules.
Construction
1.2Unless a contrary intention appears in this document, a reference to:
(a)this Agreement includes any schedules and Attachments;
(b)a document (including this Agreement) 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 Agreement;
(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 versaand a gender includes all genders;
(g)the word “person” includes a firm, a body corporate, a partnership, an unincorporated association or anAuthority 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, clause 4.3, clause 6.3, clause 7.1(d) and (e)and clause 7.14), 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)the words “any item of plant or equipment” means any item of plant of equipment forming part of the Facilities;
(l)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;
(m)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;
(n)“dollars” or “$”means Australian dollars;
(o)writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes facsimile transmissions.
1.3If a word or phrase is defined in this Agreement, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
1.4Headings are inserted for convenience and do not affect the interpretation ofthis Agreement.
Time
1.5A 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.
1.6If 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.
1.7Where 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.
1.8If a payment prescribed under this Agreement 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
1.9In the interpretation of this Agreement, no rule of construction applies to the disadvantage of one party on the basis that that party put forward or drafted this Agreement or any provision in it.
Precedence
1.10In the event of any inconsistency between the Operative Provisions, and the Attachments, or between this Agreement and the Network Services Agreement, the documents are to be construed in the following order of precedence:
(a)the Network Services Agreement;
(b)the Operative Provisions;
(c)Attachment 1;
(d)Attachment 2;
(e)Attachment 3;
(f)Attachment 4; and
(g)other Attachments. [TBC]
2Conditions Precedent
2.1This Agreement only takes effect upon theexecution by all parties of, and satisfaction of all conditions precedent, under the Use of System Agreement.
2.2AEMOmust promptly notify TNSPwhen the condition precedent referred to in clause 2.1is satisfied.