Amendments to System Wide Requirements. (a) Aurizon Network may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”): (i) on safety grounds, at any time without the consent of the Operator subject to providing reasonable notice of the proposed amendment and consulting with the Operator prior to its implementation; (ii) if required pursuant to a Material Change; and (iii) in any other circumstance, subject to negotiating the Operator’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 (the Operator’s agreement not to be unreasonably withheld or delayed). (b) The Amendment Notice issued by Aurizon Network pursuant to Clause 6.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator of the terms of the proposed amendments and to enable the Operator to assess the consequences and impact for the Operator of the proposed amendments and details of the proposed implementation date. (c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii), the Operator shall provide advice to Aurizon Network as to whether: (i) the proposed amendments will materially impact on the Operator’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the Operator’s entitlement to reach agreement with Aurizon Network in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii); or (ii) the Operator will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments. (d) Where the Operator has provided advice to Aurizon Network pursuant to Clause 6.10(c)(i) and has satisfied Aurizon Network, acting reasonably, within thirty (30) days of receipt by Aurizon Network of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the Operator’s entitlement to reach agreement with Aurizon Network in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii), Aurizon Network will not implement the proposed amendments. In the event that the Operator is unable to so satisfy Aurizon Network, Aurizon Network may implement the proposed amendments at any time except that: (i) in the event that the circumstances outlined in Clause 6.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii); or (ii) in the event that the Operator disputes Aurizon Network’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 and Aurizon Network will not implement the proposed amendments pending the determination of the expert. (e) Where the Operator has provided advice to Aurizon Network pursuant to Clause 6.10(c)(ii) that the relevant circumstances exist then: (i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon Network further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon Network to reasonably assess such net material financial impact; and (ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 and Aurizon Network will not implement the proposed amendments pending the expert’s determination. (f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon Network under this Agreement. (g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments. (h) Notwithstanding Clause 6.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock. (i) At any time following a determination pursuant to Clause 6.10(e), Aurizon Network may elect not to proceed with the proposed amendments. (j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s systems, equipment or Rollingstock as required by the amendments. (k) Where Aurizon Network implements the proposed amendments in accordance with this Clause 6.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon Network with a further certificate of compliance where the Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon Network will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon Network may require immediate compliance. (l) In the event that Aurizon Network undertakes an Enhancement, Aurizon Network will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End User.
Appears in 6 contracts
Samples: Train Operations Agreement, Train Operations Agreement, Train Operations Agreement
Amendments to System Wide Requirements. (a) Aurizon Network QR may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment NoticeNotice ”):
(i) on safety grounds, at any time without the consent of the Operator Access Holder subject to providing reasonable notice of the proposed amendment and consulting with the Operator Access Holder prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the OperatorAccess Holder’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 5.10 (the OperatorAccess Holder’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon Network QR pursuant to Clause 6.10(a5.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator Access Holder of the terms of the proposed amendments and to enable the Operator Access Holder to assess the consequences and impact for the Operator Access Holder (and the Operator) of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii5.10(a)(iii), the Operator Access Holder shall provide advice to Aurizon Network QR as to whether:
(i) the proposed amendments will materially impact on the OperatorAccess Holder’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the OperatorAccess Holder’s entitlement to reach agreement with Aurizon Network QR in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii); or
(ii) the Operator Access Holder will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator Access Holder has provided advice to Aurizon Network QR pursuant to Clause 6.10(c)(i5.10(c)(i) and has satisfied Aurizon NetworkQR, acting reasonably, within thirty (30) days of receipt by Aurizon Network QR of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the OperatorAccess Holder’s entitlement to reach agreement with Aurizon Network QR in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii), Aurizon Network QR will not implement the proposed amendments. In the event that the Operator Access Holder is unable to so satisfy Aurizon NetworkQR, Aurizon Network QR may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii5.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii5.10(e); or
(ii) in the event that the Operator Access Holder disputes Aurizon NetworkQR’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 17.3 and Aurizon Network QR will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator Access Holder has provided advice to Aurizon Network QR pursuant to Clause 6.10(c)(ii5.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator Access Holder shall provide to Aurizon Network QR further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator Access Holder directly as a result of implementing the proposed amendments and the Operator Access Holder shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon Network QR to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 17.3 and Aurizon Network QR will not implement the proposed amendments pending the expert’s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator Access Holder but excluding any costs associated with other entitlements of Aurizon Network QR under this Agreement.
(g) The Operator Access Holder shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e5.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e5.10(e), Aurizon Network QR may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii5.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Access Holder’s or Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon Network QR implements the proposed amendments in accordance with this Clause 6.105.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must (and the Access Holder must cause the Operator to) undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon Network QR with a further certificate of compliance where the Access Holder’s or Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon Network QR will allow a reasonable period for the Access Holder and/or Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon Network QR may require immediate compliance.
(l) In the event that Aurizon Network QR undertakes an Enhancement, Aurizon Network QR will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End UserAccess Holder.
Appears in 2 contracts
Samples: Access Agreement, Access Agreement
Amendments to System Wide Requirements. (a) Aurizon QR Network may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator subject to providing reasonable notice of the proposed amendment and consulting with the Operator prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the Operator’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 5.10 (the Operator’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon QR Network pursuant to Clause 6.10(a5.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator of the terms of the proposed amendments and to enable the Operator to assess the consequences and impact for the Operator of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii5.10(a)(iii), the Operator shall provide advice to Aurizon QR Network as to whether:
(i) the proposed amendments will materially impact on the Operator’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii); or
(ii) the Operator will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(i5.10(c)(i) and has satisfied Aurizon QR Network, acting reasonably, within thirty (30) days of receipt by Aurizon QR Network of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii), Aurizon QR Network will not implement the proposed amendments. In the event that the Operator is unable to so satisfy Aurizon QR Network, Aurizon QR Network may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii5.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii5.10(e); or
(ii) in the event that the Operator disputes Aurizon QR Network’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 17.3 and Aurizon QR Network will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(ii5.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon QR Network further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon QR Network to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 17.3 and Aurizon QR Network will not implement the proposed amendments pending the expert’s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon QR Network under this Agreement.
(g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e5.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e5.10(e), Aurizon QR Network may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii5.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon QR Network implements the proposed amendments in accordance with this Clause 6.105.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon QR Network with a further certificate of compliance where the Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon QR Network will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon QR Network may require immediate compliance.
(l) In the event that Aurizon QR Network undertakes an Enhancement, Aurizon QR Network will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End UserOperator.
Appears in 2 contracts
Samples: Access Agreement, Operator Access Agreement
Amendments to System Wide Requirements. (a) Aurizon QR Network may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator Access Holder subject to providing reasonable notice of the proposed amendment and consulting with the Operator Access Holder prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the OperatorAccess Holder’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 5.10 (the OperatorAccess Holder’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon QR Network pursuant to Clause 6.10(a5.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator Access Holder of the terms of the proposed amendments and to enable the Operator Access Holder to assess the consequences and impact for the Operator Access Holder (and the Operator) of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii5.10(a)(iii), the Operator Access Holder shall provide advice to Aurizon QR Network as to whether:
(i) the proposed amendments will materially impact on the OperatorAccess Holder’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the OperatorAccess Holder’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii); or
(ii) the Operator Access Holder will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator Access Holder has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(i5.10(c)(i) and has satisfied Aurizon QR Network, acting reasonably, within thirty (30) days of receipt by Aurizon QR Network of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the OperatorAccess Holder’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii), Aurizon QR Network will not implement the proposed amendments. In the event that the Operator Access Holder is unable to so satisfy Aurizon QR Network, Aurizon QR Network may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii5.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii5.10(e); or
(ii) in the event that the Operator Access Holder disputes Aurizon QR Network’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 and Aurizon Network will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator has provided advice to Aurizon Network pursuant to Clause 6.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon Network further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon Network to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 and Aurizon Network will not implement the proposed amendments pending the expert’s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon Network under this Agreement.
(g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e), Aurizon Network may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon Network implements the proposed amendments in accordance with this Clause 6.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon Network with a further certificate of compliance where the Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon Network will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon Network may require immediate compliance.
(l) In the event that Aurizon Network undertakes an Enhancement, Aurizon Network will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End User.Clause
Appears in 2 contracts
Samples: Access Agreement, Access Agreement
Amendments to System Wide Requirements. (a) Aurizon QR Network may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator subject to providing reasonable notice of the proposed amendment and consulting with the Operator prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the Operator’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 5.10 (the Operator’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon QR Network pursuant to Clause 6.10(a5.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator of the terms of the proposed amendments and to enable the Operator to assess the consequences and impact for the Operator of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii5.10(a)(iii), the Operator shall provide advice to Aurizon QR Network as to whether:
(i) the proposed amendments will materially impact on the Operator’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii); or
(ii) the Operator will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(i5.10(c)(i) and has satisfied Aurizon QR Network, acting reasonably, within thirty (30) days of receipt by Aurizon QR Network of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii), Aurizon QR Network will not implement the proposed amendments. In the event that the Operator is unable to so satisfy Aurizon QR Network, Aurizon QR Network may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii5.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii5.10(e); or
(ii) in the event that the Operator disputes Aurizon QR Network’s finding, either Party may refer the dispute to the Dispute Managers for determination by an expert in accordance with Clause 18.3 17.2 and Aurizon QR Network will not implement the proposed amendments pending the determination of the expertdetermination.
(e) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(ii5.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon QR Network further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon Network to reasonably assess such net material financial impact; andOperator
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert the Dispute Managers for determination in accordance with Clause 18.3 17.2 and Aurizon QR Network will not implement the proposed amendments pending the expert’s determination.
(f) In making his their determination the expert Dispute Managers must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon QR Network under this Agreement.
(g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e5.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e5.10(e), Aurizon QR Network may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii5.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon QR Network implements the proposed amendments in accordance with this Clause 6.105.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon QR Network with a further certificate of compliance where the Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon QR Network will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon QR Network may require immediate compliance.
(l) In the event that Aurizon QR Network undertakes an Enhancement, Aurizon QR Network will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End UserOperator.
Appears in 1 contract
Samples: Access Agreement
Amendments to System Wide Requirements. (a) Aurizon QR Network may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator subject to providing reasonable notice of the proposed amendment and consulting with the Operator prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the Operator’s Operator‟s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 (the Operator’s Operator‟s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon QR Network pursuant to Clause 6.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator of the terms of the proposed amendments and to enable the Operator to assess the consequences and impact for the Operator of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii), the Operator shall provide advice to Aurizon QR Network as to whether:
(i) the proposed amendments will materially impact on the Operator’s Operator‟s operations to such an extent as to fundamentally frustrate the Operator’s Operator‟s operation of Train Services under this Agreement over a sustained period of time notwithstanding the Operator’s Operator‟s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii); or
(ii) the Operator will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(i) and has satisfied Aurizon QR Network, acting reasonably, within thirty (30) days of receipt by Aurizon QR Network of that advice, that the Operator’s Operator‟s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the Operator’s Operator‟s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii), Aurizon QR Network will not implement the proposed amendments. In the event that the Operator is unable to so satisfy Aurizon QR Network, Aurizon QR Network may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii); or
(ii) in the event that the Operator disputes Aurizon Network’s QR Network‟s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 and Aurizon QR Network will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon QR Network further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon QR Network to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 and Aurizon QR Network will not implement the proposed amendments pending the expert’s expert‟s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon QR Network under this Agreement.
(g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e), Aurizon QR Network may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s Operator‟s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon QR Network implements the proposed amendments in accordance with this Clause 6.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Operator‟s Emergency Response Plan in response to the relevant amendments including providing Aurizon QR Network with a further certificate of compliance where the Operator’s Operator‟s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon QR Network will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon QR Network may require immediate compliance.
(l) In the event that Aurizon QR Network undertakes an Enhancement, Aurizon QR Network will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End UserOperator.
Appears in 1 contract
Samples: Train Operations Agreement
Amendments to System Wide Requirements. (a) Aurizon QR Network may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator subject to providing reasonable notice of the proposed amendment and consulting with the Operator prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the Operator’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 (the Operator’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon QR Network pursuant to Clause 6.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator of the terms of the proposed amendments and to enable the Operator to assess the consequences and impact for the Operator of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii), the Operator shall provide advice to Aurizon QR Network as to whether:
(i) the proposed amendments will materially impact on the Operator’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii); or
(ii) the Operator will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(i) and has satisfied Aurizon QR Network, acting reasonably, within thirty (30) days of receipt by Aurizon QR Network of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii), Aurizon QR Network will not implement the proposed amendments. In the event that the Operator is unable to so satisfy Aurizon QR Network, Aurizon QR Network may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii6.10(e); or
(ii) in the event that the Operator disputes Aurizon QR Network’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 and Aurizon QR Network will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon QR Network further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon QR Network to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 and Aurizon QR Network will not implement the proposed amendments pending the expert’s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon QR Network under this Agreement.
(g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e), Aurizon QR Network may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon QR Network implements the proposed amendments in accordance with this Clause 6.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon QR Network with a further certificate of compliance where the Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon QR Network will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon QR Network may require immediate compliance.
(l) In the event that Aurizon Network undertakes an Enhancement, Aurizon Network will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End User.
Appears in 1 contract
Samples: Train Operations Agreement
Amendments to System Wide Requirements. (a) Aurizon Network QR may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator Access Holder subject to providing reasonable notice of the proposed amendment and consulting with the Operator Access Holder prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the OperatorAccess Holder’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 5.10 (the OperatorAccess Holder’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon Network QR pursuant to Clause 6.10(a5.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator Access Holder of the terms of the proposed amendments and to enable the Operator Access Holder to assess the consequences and impact for the Operator Access Holder (and the Operator) of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii5.10(a)(iii), the Operator Access Holder shall provide advice to Aurizon Network QR as to whether:
(i) the proposed amendments will materially impact on the OperatorAccess Holder’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the OperatorAccess Holder’s entitlement to reach agreement with Aurizon Network QR in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii); or
(ii) the Operator Access Holder will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator Access Holder has provided advice to Aurizon Network QR pursuant to Clause 6.10(c)(i5.10(c)(i) and has satisfied Aurizon NetworkQR, acting reasonably, within thirty (30) days of receipt by Aurizon Network QR of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the OperatorAccess Holder’s entitlement to reach agreement with Aurizon Network QR in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii), Aurizon Network QR will not implement the proposed amendments. In the event that the Operator Access Holder is unable to so satisfy Aurizon NetworkQR, Aurizon Network QR may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii5.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii5.10(e); or
(ii) in the event that the Operator Access Holder disputes Aurizon NetworkQR’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 17.3 and Aurizon Network QR will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator Access Holder has provided advice to Aurizon Network QR pursuant to Clause 6.10(c)(ii5.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator Access Holder shall provide to Aurizon Network QR further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator Access Holder directly as a result of implementing the proposed amendments and the Operator Access Holder shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon Network QR to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 17.3 and Aurizon Network QR will not implement the proposed amendments pending the expert’s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator Access Holder but excluding any costs associated with other entitlements of Aurizon Network QR under this Agreement.
(g) The Operator Access Holder shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e5.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e5.10(e), Aurizon Network QR may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii5.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Access Holder’s or Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon Network QR implements the proposed amendments in accordance with this Clause 6.105.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must (and the Access Holder must cause the Operator to) undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon Network QR with a further certificate of compliance where the Access Holder’s or Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon Network QR will allow a reasonable period for the Access Holder and/or Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon Network QR may require immediate compliance.
(l) In the event that Aurizon Network QR undertakes an Enhancement, Aurizon Network QR will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End UserAccess Holder.
Appears in 1 contract
Samples: Access Agreement
Amendments to System Wide Requirements. (a) Aurizon QR Network may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator subject to providing reasonable notice of the proposed amendment and consulting with the Operator prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the Operator’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 (the Operator’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon QR Network pursuant to Clause 6.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator of the terms of the proposed amendments and to enable the Operator to assess the consequences and impact for the Operator of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii), the Operator shall provide advice to Aurizon QR Network as to whether:
(i) the proposed amendments will materially impact on the Operator’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii); or
(ii) the Operator will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(i) and has satisfied Aurizon QR Network, acting reasonably, within thirty (30) days of receipt by Aurizon QR Network of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii), Aurizon QR Network will not implement the proposed amendments. In the event that the Operator is unable to so satisfy Aurizon QR Network, Aurizon QR Network may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii); or
(ii) in the event that the Operator disputes Aurizon QR Network’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 and Aurizon QR Network will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon QR Network further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon QR Network to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 and Aurizon QR Network will not implement the proposed amendments pending the expert’s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon Network under this Agreement.
(g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e), Aurizon Network may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon Network implements the proposed amendments in accordance with this Clause 6.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon Network with a further certificate of compliance where the Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon Network will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon Network may require immediate compliance.
(l) In the event that Aurizon Network undertakes an Enhancement, Aurizon Network will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End User.
Appears in 1 contract
Samples: Train Operations Agreement
Amendments to System Wide Requirements. (a) Aurizon QR Network may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator Access Holder subject to providing reasonable notice of the proposed amendment and consulting with the Operator Access Holder prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the OperatorAccess Xxxxxx’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 5.10 (the OperatorAccess Holder’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon QR Network pursuant to Clause 6.10(a5.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator Access Holder of the terms of the proposed amendments and to enable the Operator Access Holder to assess the consequences and impact for the Operator Access Holder (and the Operator) of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii5.10(a)(iii), the Operator Access Holder shall provide advice to Aurizon QR Network as to whether:
(i) the proposed amendments will materially impact on the OperatorAccess Holder’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the OperatorAccess Holder’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii); or
(ii) the Operator Access Holder will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator Access Holder has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(i5.10(c)(i) and has satisfied Aurizon QR Network, acting reasonably, within thirty (30) days of receipt by Aurizon QR Network of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the OperatorAccess Holder’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii), Aurizon QR Network will not implement the proposed amendments. In the event that the Operator Access Holder is unable to so satisfy Aurizon QR Network, Aurizon QR Network may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii5.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii5.10(e); or
(ii) in the event that the Operator Access Holder disputes Aurizon QR Network’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 and Aurizon Network will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator has provided advice to Aurizon Network pursuant to Clause 6.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon Network further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon Network to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 and Aurizon Network will not implement the proposed amendments pending the expert’s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon Network under this Agreement.
(g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e), Aurizon Network may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon Network implements the proposed amendments in accordance with this Clause 6.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon Network with a further certificate of compliance where the Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon Network will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon Network may require immediate compliance.
(l) In the event that Aurizon Network undertakes an Enhancement, Aurizon Network will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End User.Clause
Appears in 1 contract
Samples: Access Agreement
Amendments to System Wide Requirements. (a) Aurizon QR Network may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator subject to providing reasonable notice of the proposed amendment and consulting with the Operator prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the Operator’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 (the Operator’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon QR Network pursuant to Clause 6.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator of the terms of the proposed amendments and to enable the Operator to assess the consequences and impact for the Operator of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii), the Operator shall provide advice to Aurizon QR Network as to whether:
(i) the proposed amendments will materially impact on the Operator’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii); or
(ii) the Operator will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(i) and has satisfied Aurizon QR Network, acting reasonably, within thirty (30) days of receipt by Aurizon QR Network of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii), Aurizon QR Network will not implement the proposed amendments. In the event that the Operator is unable to so satisfy Aurizon QR Network, Aurizon QR Network may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii); or
(ii) in the event that the Operator disputes Aurizon QR Network’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 and Aurizon QR Network will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon QR Network further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon QR Network to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 and Aurizon QR Network will not implement the proposed amendments pending the expert’s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon QR Network under this Agreement.
(g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e), Aurizon QR Network may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon QR Network implements the proposed amendments in accordance with this Clause 6.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon QR Network with a further certificate of compliance where the Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon QR Network will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon QR Network may require immediate compliance.
(l) In the event that Aurizon QR Network undertakes an Enhancement, Aurizon QR Network will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End User.
Appears in 1 contract
Samples: Train Operations Agreement
Amendments to System Wide Requirements. (a) Aurizon Network QR may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment NoticeNotice ”):
(i) on safety grounds, at any time without the consent of the Operator Access Holder subject to providing reasonable notice of the proposed amendment and consulting with the Operator Access Holder prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the OperatorAccess Holder’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 5.10 (the OperatorAccess Holder’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon Network QR pursuant to Clause 6.10(a5.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator Access Holder of the terms of the proposed amendments and to enable the Operator Access Holder to assess the consequences and impact for the Operator Access Holder (and the Operator) of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii5.10(a)(iii), the Operator Access Holder shall provide advice to Aurizon Network QR as to whether:
(i) the proposed amendments will materially impact on the OperatorAccess Holder’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the OperatorAccess Holder’s entitlement to reach agreement with Aurizon Network QR in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii); or
(ii) the Operator Access Holder will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator Access Holder has provided advice to Aurizon Network QR pursuant to Clause 6.10(c)(i5.10(c)(i) and has satisfied Aurizon NetworkQR, acting reasonably, within thirty (30) days of receipt by Aurizon Network QR of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the OperatorAccess Holder’s entitlement to reach agreement with Aurizon Network QR in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii), Aurizon Network QR will not implement the proposed amendments. In the event that the Operator Access Holder is unable to so satisfy Aurizon NetworkQR, Aurizon Network QR may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii5.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii5.10(e); or
(ii) in the event that the Operator Access Holder disputes Aurizon NetworkQR’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 17.3 and Aurizon Network QR will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator Access Holder has provided advice to Aurizon Network QR pursuant to Clause 6.10(c)(ii5.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator Access Holder shall provide to Aurizon Network QR further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator Access Holder directly as a result of implementing the proposed amendments and the Operator Access Holder shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon Network QR to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 17.3 and Aurizon Network QR will not implement the proposed amendments pending the expert’s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator Access Holder but excluding any costs associated with other entitlements of Aurizon Network QR under this th is Agreement.
(g) The Operator Access Holder shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e5.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e5.10(e), Aurizon Network QR may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii5.10(e )(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Access Holder’s or Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon Network QR implements the proposed amendments in accordance with this Clause 6.105.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must (and the Access Holder must cause the Operator to) undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon Network QR with a further certificate of compliance where the Access Holder’s or Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon Network QR will allow a reasonable period for the Access Holder and/or Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon Network QR may require immediate compliance.
(l) In the event that Aurizon Network QR undertakes an Enhancement, Aurizon Network QR will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End UserAccess Holder.
Appears in 1 contract
Samples: Access Agreement
Amendments to System Wide Requirements. (a) Aurizon Subject to Clause 5.10(m), QR Network may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator subject to providing reasonable notice of the proposed amendment and consulting with the Operator prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the Operator’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 5.10 (the Operator’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon QR Network pursuant to Clause 6.10(a5.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator of the terms of the proposed amendments and to enable the Operator to assess the consequences and impact for the Operator of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii5.10(a)(iii), the Operator shall provide advice to Aurizon QR Network as to whether:
(i) the proposed amendments will materially impact on the Operator’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii); or
(ii) the Operator will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(i5.10(c)(i) and has satisfied Aurizon QR Network, acting reasonably, within thirty (30) days of receipt by Aurizon Network QR of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the Operator’s entitlement to reach agreement with Aurizon QR Network in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii), Aurizon QR Network will not implement the proposed amendments. In the event that the Operator is unable to so satisfy Aurizon QR Network, Aurizon QR Network may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii5.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii5.10(e); or
(ii) in the event that the Operator disputes Aurizon QR Network’s finding, either Party may refer the dispute for determination by an expert the Dispute Managers in accordance with Clause 18.3 17.2 and Aurizon QR Network will not implement the proposed amendments pending the determination of the expertDispute Managers.
(e) Where the Operator has provided advice to Aurizon QR Network pursuant to Clause 6.10(c)(ii5.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon QR Network further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon QR Network to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert the Dispute Managers for determination in accordance with Clause 18.3 17.2 and Aurizon QR Network will not implement the proposed amendments pending the expert’s their determination.
(f) In making his their determination the expert Dispute Managers must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon QR Network under this Agreement.
(g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e5.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e5.10(e), Aurizon QR Network may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii5.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon QR Network implements the proposed amendments in accordance with this Clause 6.105.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon QR Network with a further certificate of compliance where the Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon QR Network will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon Network may require immediate compliance.will
(l) In the event that Aurizon QR Network undertakes an Enhancement, Aurizon QR Network will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator Operator.
(m) If QR Network wishes to issue an Amendment Notice pursuant to Clause 5.10(a) in respect of Infrastructure that contains one or more Network Interface Point, then QR Network must:
(i) prior to issuing the End UserAmendment Notice, consult with the Railway Manager for the Adjoining Network in respect of the proposed amendment to the System Wide Requirement; and
(ii) endeavour to ensure that the proposed amendment to the System Wide Requirement will not result in any Through-Running Train being unable to comply with both:
i. the Rollingstock Interface Standards, Safeworking Procedures and Safety Standards; and
ii. the corresponding standards and procedures applicable to operations on the Adjoining Network.
Appears in 1 contract
Samples: Coal Access Agreement
Amendments to System Wide Requirements. (a) Aurizon Network QR may, acting reasonably, amend a System Wide Requirement by the issue of a notice (“Amendment Notice”):
(i) on safety grounds, at any time without the consent of the Operator subject to providing reasonable notice of the proposed amendment and consulting with the Operator prior to its implementation;
(ii) if required pursuant to a Material Change; and
(iii) in any other circumstance, subject to negotiating the Operator’s agreement to such proposed amendment prior to its implementation in accordance with this Clause 6.10 5.10 (the Operator’s agreement not to be unreasonably withheld or delayed).
(b) The Amendment Notice issued by Aurizon Network QR pursuant to Clause 6.10(a5.10(a) must include details of the proposed amendments to the extent reasonably necessary so as to properly inform the Operator of the terms of the proposed amendments and to enable the Operator to assess the consequences and impact for the Operator of the proposed amendments and details of the proposed implementation date.
(c) In respect of any amendment proposed pursuant to Clause 6.10(a)(iii5.10(a)(iii), the Operator shall provide advice to Aurizon Network QR as to whether:
(i) the proposed amendments will materially impact on the Operator’s operations to such an extent as to fundamentally frustrate the Operator’s operation of Train Services under this Agreement over a sustained period of time notwithstanding the Operator’s entitlement to reach agreement with Aurizon Network QR in terms of the funding of any material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii); or
(ii) the Operator will suffer a net material financial impact (that is, a net cost) equivalent to 1% or greater of the annual Access Charges directly as a result of the proposed amendments.
(d) Where the Operator has provided advice to Aurizon Network QR pursuant to Clause 6.10(c)(i5.10(c)(i) and has satisfied Aurizon NetworkQR, acting reasonably, within thirty (30) days of receipt by Aurizon Network QR of that advice, that the Operator’s operation of Train Services under this Agreement will be fundamentally frustrated over a sustained period of time directly as a result of the proposed amendments notwithstanding the Operator’s entitlement to reach agreement with Aurizon Network QR in terms of the funding of any net material financial impact pursuant to Clause 6.10(e)(ii5.10(e)(ii), Aurizon Network QR will not implement the proposed amendments. In the event that the Operator is unable to so satisfy Aurizon NetworkQR, Aurizon Network QR may implement the proposed amendments at any time except that:
(i) in the event that the circumstances outlined in Clause 6.10(c)(ii5.10(c)(ii) exist, such implementation shall be subject to Clause 6.10(e)(ii5.10(e); or
(ii) in the event that the Operator disputes Aurizon NetworkQR’s finding, either Party may refer the dispute for determination by an expert in accordance with Clause 18.3 17.3 and Aurizon Network QR will not implement the proposed amendments pending the determination of the expert.
(e) Where the Operator has provided advice to Aurizon Network QR pursuant to Clause 6.10(c)(ii5.10(c)(ii) that the relevant circumstances exist then:
(i) within thirty (30) days of providing such advice the Operator shall provide to Aurizon Network QR further advice of such net material financial impact including estimates of any additional costs, savings, benefits or detriments to be obtained or suffered or reasonably expected to be obtained or suffered, by the Operator directly as a result of implementing the proposed amendments and the Operator shall warrant that any estimates given by it are accurate on the basis of the information reasonably available to it and sufficiently detailed to enable Aurizon Network QR to reasonably assess such net material financial impact; and
(ii) the Parties will negotiate in good faith to agree appropriate financial arrangements between them with respect to such net material financial impact and, failing agreement within a further thirty (30) day period, either Party may refer the matter of appropriate financial arrangements to an expert for determination in accordance with Clause 18.3 17.3 and Aurizon Network QR will not implement the proposed amendments pending the expert’s determination.
(f) In making his determination the expert must have regard to, except in circumstances where consequences are otherwise provided under this Agreement, the costs and benefits accruing to the Operator but excluding any costs associated with other entitlements of Aurizon Network QR under this Agreement.
(g) The Operator shall use all reasonable endeavours to minimise the net material financial impact suffered by it due to the proposed amendments.
(h) Notwithstanding Clause 6.10(e5.10(e), where any System Wide Requirement is varied on safety grounds, each Party will fund its own costs of implementing the proposed amendments including the equipping of Rollingstock with new or additional equipment such as Signalling and Telecommunications Equipment or making any other modification to Rollingstock.
(i) At any time following a determination pursuant to Clause 6.10(e5.10(e), Aurizon Network QR may elect not to proceed with the proposed amendments.
(j) The Parties must account to each other in respect of the contributions agreed or determined pursuant to Clause 6.10(e)(ii5.10(e)(ii) following completion of the implementation of the proposed amendments and subsequent modifications to the Operator’s systems, equipment or Rollingstock as required by the amendments.
(k) Where Aurizon Network QR implements the proposed amendments in accordance with this Clause 6.105.10, the relevant System Wide Requirement will be altered accordingly following completion of the implementation of the proposed amendments. The Parties must undertake all necessary action and make all necessary amendments to the Interface Risk Management Plan, the Environmental Investigation and Risk Management Report and/or the Operator’s Emergency Response Plan in response to the relevant amendments including providing Aurizon Network QR with a further certificate of compliance where the Operator’s Rollingstock or Rollingstock Configurations require modification as a result of a change to a System Wide Requirement. Aurizon Network QR will allow a reasonable period for the Operator to amend its procedures and plans to comply with any such amended System Wide Requirement, except in the case of emergency circumstances for safety reasons where Aurizon Network QR may require immediate compliance.
(l) In the event that Aurizon Network QR undertakes an Enhancement, Aurizon Network QR will only be required to vary the Rollingstock Interface Standards to reflect the impact of the Enhancement where the Parties have agreed as to the level and method of contribution to the funding of the Enhancement by the Operator or the End UserOperator.
Appears in 1 contract
Samples: Operator Access Agreement
