Use of Poles Carrier Access Agreement
Dated
PARTIES
ESSENTIAL ENERGY
ABN 37 428 185 226
[CARRIER]
ABN [ ]
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
TABLE OF CONTENTS
1
2
3
4
5
6
7
DEFINITIONS AND INTERPRETATION ............................................................................ 4
1.1
Definitions ....................................................................................................... 4
1.2
Interpretation .................................................................................................. 7
ACCESS TO POWER POLES .......................................................................................... 7
2.1
General ........................................................................................................... 7
2.2
Access Application ............................................................................................ 7
2.3
Adjustment of Application Fee ............................................................................ 8
2.4
Make-Ready Work and Opportunity Augmentation ................................................. 8
2.5
Assessment of Application.................................................................................. 9
2.6
Nature of Access Licence ................................................................................... 9
2.7
Relocation ..................................................................................................... 10
2.8
Acknowledgement .......................................................................................... 10
ESSENTIAL ENERGY WORK ........................................................................................ 10
3.1
Right to Maintain and Operate Assets ................................................................ 10
3.2
Essential Energy Obligations............................................................................. 10
3.3
Power Pole Relocation ..................................................................................... 11
3.4
Exclusive Use ................................................................................................. 11
INSTALLATION......................................................................................................... 11
4.1
Timing .......................................................................................................... 11
4.2
Installation .................................................................................................... 12
4.3
De-energising and Re-energising ...................................................................... 12
MAINTENANCE AND OPERATIONS............................................................................... 12
5.1
Maintenance and operational work .................................................................... 12
5.2
Reporting Obligation ....................................................................................... 13
5.3
Carrier Failure ................................................................................................ 13
5.4
Emergency Procedures .................................................................................... 13
5.5
No Interference .............................................................................................. 15
5.6
Environmental requirements ............................................................................ 15
5.7
Remediation .................................................................................................. 15
COMPLIANCE ........................................................................................................... 15
6.1
Compliance with Applicable Laws ...................................................................... 15
6.2
Authorisations ................................................................................................ 16
6.3
Carrier Employees and Contractors ................................................................... 16
PAYMENT ................................................................................................................ 16
7.1
Annual Licence Fee ......................................................................................... 16
7.2
Adjustment of Annual Licence Fee ..................................................................... 17
7.3
Interest......................................................................................................... 17
7.4
Set-Offs, Counterclaims and Other Deductions.................................................... 17
8
GOODS AND SERVICES TAX ...................................................................................... 17
9
INDEMNITY AND LIABILITY........................................................................................ 18
9.1
Indemnity ..................................................................................................... 18
9.2
Limitation of Essential Energy’s Liability ............................................................. 19
9.3
Exclusion of warranties.................................................................................... 19
10
CONFIDENTIALITY.................................................................................................... 19
11
RISK AND INSURANCE .............................................................................................. 21
11.1
Risk .............................................................................................................. 21
Commercial-in-Confidence
Page 2 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
12
13
14
11.2
Insurance ...................................................................................................... 21
11.3
Other Insurance ............................................................................................. 22
TERM AND TERMINATION .......................................................................................... 22
12.1
Term ............................................................................................................ 22
12.2
Default by Carrier ........................................................................................... 22
12.3
Additional Rights of Termination ....................................................................... 23
12.4
Termination for default by either Party............................................................... 23
12.5
Effect of Termination....................................................................................... 23
12.6
Access Licences .............................................................................................. 23
12.7
Carrier’s Obligations upon Expiry or Termination ................................................. 23
DISPUTE RESOLUTION .............................................................................................. 24
13.1
Notice of Dispute ............................................................................................ 24
13.2
Dispute Resolution .......................................................................................... 24
13.3
Performance during Dispute ............................................................................. 24
GENERAL ................................................................................................................ 25
14.1
Ownership of Equipment.................................................................................. 25
14.2
Transfer of ownership in Power Poles to Carrier................................................... 25
14.3
No Partnership ............................................................................................... 25
14.4
Consents and Approval .................................................................................... 25
14.5
Public Announcements..................................................................................... 25
14.6
Assignment.................................................................................................... 25
14.7
Further Assurance .......................................................................................... 25
14.8
Entire Understanding ...................................................................................... 25
14.9
Severability ................................................................................................... 26
14.10 Waiver .......................................................................................................... 26
14.11 Variation ....................................................................................................... 26
14.12 Costs and Outlays........................................................................................... 26
14.13 Notices.......................................................................................................... 26
14.14 Governing Law and Jurisdiction......................................................................... 27
14.15 Execution of Counterparts................................................................................ 28
SCHEDULE 1: ANNUAL LICENCE FEE ..................................................................................... 30
SCHEDULE 2: TRANSFER OF POLES DEED ............................................................................. 31
Commercial-in-Confidence
Page 3 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
AGREEMENT
made
PARTIES
ESSENTIAL ENERGY
ABN 37 428 185 226
of PO Box 718, Queanbeyan NSW 2620
AND
[
] ABN [ ]
of [Address]
(“Carrier”)
INTRODUCTION
A
The purpose of this Agreement is to allow the Carrier access to Essential Energy’s Power
Poles to develop and maintain the Carrier’s telecommunications network.
B
The Carrier is the holder of a carrier licence under the Act and carries on the business of
operating telecommunications networks and supplying telecommunications services.
C
Essential Energy carries on the business of the distribution and supply of electricity over the
Distribution Network and has agreed; to the extent it may lawfully do so, to allow the
Carrier use of Power Poles to attach Equipment to Power Poles in accordance with and
subject to the terms of this Agreement.
1
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
1
Act means the Telecommunications Act 1997;
2
Access Application means an access application as referred to in clause 2.2(4);
3
Access Licence means the non-exclusive right to attach Approved Equipment to a
Essential Energy Power Pole granted by Essential Energy under clause 2;
4
Access Price Schedule means the access price schedule published on the Essential Energy
website www.essentialenergy.com.au as amended from time to time;
5
Access Licence Commencement Date means the date the Access Licence has been
signed by the Customer and the Utility or such other commencement date specified in the
Access Licence;
6
Accredited Service Provider means a person who has been accredited under the Scheme
for the Accreditation of Service Providers to Undertake Contestable Works recognised by the
Minister for Energy, or any updated or replacement scheme as advised by Essential Energy
from time to time;
7
Adjustment Date means 1 July in any year;
8
AER means Australian Energy Regulator;
9
Agreement means this document, including any schedule or annexure to it;
10
Annual Licence Fee means the amount calculated in accordance with Schedule 1 payable
per annum (or part thereof) in consideration for the grant of each Access Licence, as may
be varied in accordance with clause 7.2;
11
Application Fee means the non-refundable fee set out in the Access Price Schedule and
payable under clause 2.2(1) as may be varied in accordance with clause 2.3;
12
Approved Equipment means the Cables and such other telecommunications equipment
approved by Essential Energy in an access application made pursuant to clause 2;
Commercial-in-Confidence
Page 4 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
13
Authorisation includes:
a
permits, approval or licences required from any governmental, regulatory or public
authority, agency or body; and
b
any consent or agreement of any owner, lessor, licensor, sublessor or mortgagee
(including any agreement or determination or consent required under any
Aboriginal, heritage or native title rules);
14
Business Day means a day that is not a Saturday, Sunday or any other day which is a
public holiday or a bank holiday in the place where an act is to be performed or a payment
is to be made;
15
Cable means a single or multicore, non-conductive, insulated or uninsulated and sheathed
telecommunications cable including fibre optic cable;
16
Change of Control Event means, in relation to an entity, an event the occurrence of which
has the effect that:
a
If a person controlled the entity prior to the time the event occurred, the person
ceased to control the entity or another person obtained control of the entity;
b
If no person controlled the entity prior to the time the event occurred, a person
obtained control of the entity; or
c
If the entity is owned or controlled by a group or consortium of persons, or if the
group or consortium could control the entity were they to act collectively, there is
any material change in the composition of the group or consortium.
For the purposes of this definition, "control" and "controlled" have the meaning given in
section 5OAA of the Corporations Act 2001 (Cth);
17
Code means a Code of Access to Telecommunications Transmission Towers, Sites of Towers
and Underground Facilities made by the Australian Competition and Consumer Commission
under clause 37 of Part 5 of Schedule 1 to the Act, and dated October 1999, as may be
amended or replaced from time to time;
18
Contamination means a condition of land, air, soil or water, including groundwater,
resulting from past or present Pollution and which shares any or all of the characteristics of
Pollution;
19
CPI means the consumer price index, all groups (weighted average for eight capital cities)
published by the Australian Bureau of Statistics;
20
Defect Rectification means rectification of pre-existing identified defects in the
Distribution Network that would be rectified by Essential Energy in the normal course of its
business;
21
Design Information Package means a design information package as issued from time to
time by Essential Energy, containing design, access and attachment information and
conditions, in respect of proposed attachments to Power Poles and any associated
equipment or facilities specified by the Carrier in an application under clause 2.2(1).
22
Distribution Network means Essential Energy’s distribution network including all Power
Poles, transmission towers, wires and other equipment forming part of or intended for use
in the distribution of electricity on the network;
23
Emergency Work means:
24
a
work to rectify or prevent imminent or continuing damage to or destruction of
property;
b
work to rectify or prevent imminent danger to human life or physical injury; and
c
work to rectify or prevent an unscheduled outage which has or is likely to have a
significant impact on the Distribution Network or the Carrier’s network;
Engineering Practices means the operational and engineering procedures of Essential
Energy as made available and notified by Essential Energy to the Carrier from time to time;
Commercial-in-Confidence
Page 5 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
25
Environment means the physical factors of the surroundings of humans and other life
forms, including the land, soil, plants, habitat, waters, atmosphere, climate, sounds,
odours, tastes, biodiversity and the social and aesthetic values of landscape;
26
Environmental Approval means any licence, permit, consent, approval, determination,
certificate or permission from any governmental, regulatory or public authority, agency or
body in relation to the Environment or under any Environmental Law which must be
obtained or satisfied to perform any work involving or relating to the installation, operation,
inspection, testing, maintenance, repair, replacement and removal of Equipment at a Power
Pole, associated equipment or facility;
27
Environmental Law means any Law relating to the Environment including a Law relating
to land use, planning, pollution of air, water soil or ground water, chemicals, waste, the use
of transport, the storage and handling of dangerous goods, the health or safety of any
person, or any other matters relating to but not limited to the protection of the
Environment, health or property;
28
Environmental Notice mean any form of notice, direction, penalty, proceedings or action
issued or commenced by any governmental, regulatory or public authority, agency or body
relating to any Environmental Approval or Environmental Law;
29
Equipment means Cables and other telecommunications equipment;
30
Insolvency Event in respect of a Party means:
a
that Party becomes an ‘externally-administered body corporate’ as defined in the
Corporations Act 2001 (Cth);
b
a ‘controller’ as defined in the Corporations Act 2001 (Cth) is appointed to any
assets or the undertaking of that Party;
c
the Party is taken to have failed to comply with a statutory demand within the
meaning of the Corporations Act;
d
that Party is unable to pay its debts as and when they fall due for payment;
e
that Party enters into a composition or arrangement with its creditors generally, or
with a particular class of creditors, with respect to the payment of amounts due to
those creditors;
f
a resolution is passed for the reduction of capital of the Party or notice of intention
to propose such a resolution is given, without the other Party’s prior consent; or
g
that Party ceases to conduct operations for reasons other than a force majeure
event.
31
Law means any law including rules of common law, principles of equity, statutes, legislative
instruments, proclamations, ordinances, rules, regulations, orders in council, policies, plans,
directives, by-laws, regulatory principles and requirements, mandatory codes of conduct,
industry codes, writs, orders, injunctions, judgments, determinations and statutory licence
conditions in force from time to time, whether Commonwealth, state, territorial or local;
32
Make-Ready Work means make ready work to allow Equipment the subject of an Access
Application to be installed on the Power Poles, associated equipment and facilities to which
that Access Application relates, including without limitation Defect Rectification, and
replacement or augmentation of Power Poles due to factors including but not limited to
additional loading of Equipment, ground clearances, circuit to circuit clearances, and
vegetation clearances in respect of such Power Poles pursuant to the Access Application;
33
Opportunity Augmentation means augmentation of Distribution Network assets and
infrastructure which Essential Energy chooses to undertake at or around the time of MakeReady Work being performed, which is additional to, and not required as part of, the MakeReady Work;
34
Parties means Essential Energy and the Carrier and Party means any one or both of the
Parties, as the context requires;
Commercial-in-Confidence
Page 6 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
35
Power Pole means a pole or crossarm on the Distribution Network used or which is capable
of being used by Essential Energy to support or suspend wires or cabling above ground
level, but does not include a pole supporting conductors with an operating voltage greater
than 66,000 volts unless otherwise agreed by Essential Energy in its discretion on a case by
case basis;
1.2
Interpretation
1
Reference to:
a
one gender includes the others;
b
the singular includes the plural and the plural includes the singular;
c
a person includes a body corporate;
d
a party includes the party’s executors, administrators, successors and permitted
assigns;
e
a statute, regulation or provision of statute or regulation (“Statutory Provision”)
includes:
f
i
that Statutory Provision as amended or re-enacted from time to time;
ii
a statute, regulation or provision enacted in replacement of that Statutory
Provision; and
iii
another regulation or other statutory instrument made or issued under that
Statutory Provision;
money is to Australian dollars, unless otherwise stated.
2
“Including” and similar expressions are not words of limitation.
3
Where a word or expression is given a particular meaning, other parts of speech and
grammatical forms of that word or expression have a corresponding meaning.
4
Headings and any table of contents or index are for convenience only and do not form part
of this Agreement or affect its interpretation.
5
A provision of this Agreement must not be construed to the disadvantage of a party merely
because that party was responsible for the preparation of the Agreement or the inclusion of
the provision in the Agreement.
6
If an act must be done on a specified day which is not a Business Day, it must be done
instead on the next Business Day.
2
ACCESS TO POWER POLES
2.1
General
1
Essential Energy agrees to grant the Carrier access to its Power Poles to install and maintain
Equipment on the terms and conditions of this Agreement.
2.2
Access Application
1
If the Carrier wishes to install Equipment on a Power Pole, the Carrier must submit to
Essential Energy:
a
payment of the Application Fee; and
b
an initial application to Essential Energy, which must include the following
information:
i
Commercial-in-Confidence
the identity and number of Power Poles and any associated Essential
Energy equipment or facilities to which the Carrier requests access; and
Page 7 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
ii
a map showing the location of the Power Poles and any associated
Essential Energy equipment or facilities to which the Carrier requests
access.
2
The initial application referred to in clause 2.2(1)(b) must be in such form as may be
advised by Essential Energy from time to time.
3
Essential Energy will specify which of the Power Poles, associated equipment and facilities
the subject of an application submitted pursuant to clause 2.2(1) are suitable and available
for access by the Carrier, and provide the Carrier with a Design Information Package in
respect of those Power Poles, associated equipment and facilities. Without limitation, any
Power Poles which have attached to them equipment or facilities of 3 or more third parties
will not be suitable or available for access unless otherwise determined by Essential Energy.
4
If the Carrier wishes to proceed with access to any of the proposed Power Poles and any
associated equipment or facilities listed as suitable for access, the Carrier must submit the
following information in respect of each Power Pole, associated equipment or facilities, in
accordance with the requirements of the Design Information Package:
a
a description of the Equipment and the proposed point of attachment to the Power
Pole and any associated facilities or equipment, having regard to the Engineering
Practices in effect as at the date of the application;
b
a network asset design in respect of the Equipment and its proposed attachment,
prepared by a Level 3 Accredited Service Provider. Such design shall identify and
include all Make-Ready Work required in respect of the proposed attachment of the
Equipment in compliance with the Engineering Practices; and
c
any other relevant information required by the Design Information package or
requested by Essential Energy.
(an Access Application).
2.3
Adjustment of Application Fee
Essential Energy may adjust the amount of the Application Fee by publishing a notice on its website
at least 20 Business Days before any new Application Fee comes into effect upon the making of an
application pursuant to clause 2.2(1).
2.4
Make-Ready Work and Opportunity Augmentation
1
Prior to an Access Licence being granted by Essential Energy under clause 2.5, if requested
by Essential Energy, the Carrier must attend all meetings and site visits, and provide all
information and assistance, to enable Essential Energy to assess and determine the scope
and nature of any Make-Ready Work required in respect of an Access Application. Essential
Energy may determine in its discretion the scope and nature of Make-Ready Work to be
done in respect of an Access Application and pursuant to an Access Licence.
2
The parties agree that:
a
all Make-Ready Work the subject of an Access Licence will be undertaken by the
Carrier unless Essential Energy advises the Carrier that the work will be undertaken
by Essential Energy or on its behalf;
b
the cost of all Make-Ready Work other than Defect Rectification will be borne by the
Carrier, irrespective of whether the Carrier, Essential Energy or a third party
performs the Make-Ready Work. The Carrier must pay for such work within 20
Business Days of receipt of an invoice from Essential Energy for such costs:
c
Essential Energy may determine in its discretion to undertake Opportunity
Augmentation in addition to any Make-Ready Work;
d
the cost of Defect Rectification and Opportunity Augmentation (if any) will be borne
by Essential Energy; and
Commercial-in-Confidence
Page 8 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
e
3
notwithstanding any other provision of this Agreement or an Access Licence, the
Carrier must not install Approved Equipment pursuant to an Access Licence until
any Make-Ready Work and Opportunity Augmentation which relates to that Access
Licence is completed to Essential Energy’s reasonable satisfaction.
The parties agree that the following conditions apply to the performance of Make-Ready
Work under this Agreement:
a
all Distribution Network assets and infrastructure (including assets and
infrastructure created or maintained as part of Make-Ready Work or Opportunity
Augmentation) are owned by, and remain the property of, Essential Energy and at
no time will any property rights in them vest in or be transferred to the Carrier as a
result of the Make-Ready Work being performed, or being paid for, by the Carrier;
b
in the event that Distribution Network assets or infrastructure disposals require an
accounting treatment by way of adjustment to the assets or liabilities of Essential
Energy, the Carrier will reimburse Essential Energy the amount of any loss resulting
from such disposal,
and, notwithstanding any other provision in this Agreement, the parties will take all such
further action as is necessary to ensure the above conditions are met.
4
In the event that Make-Ready Work is to be carried out by the Carrier or on its behalf, the
Carrier must ensure that all such Make-Ready Work is undertaken:
a
in accordance with any specifications and requirements in the Access Licence
and/or as otherwise agreed with Essential Energy;
b
within the timeframe agreed with Essential Energy; and
c
in accordance with all of the applicable requirements of this Agreement, as if it
were installation and/or maintenance work by the Carrier under clauses 4.2 and
5.1.
2.5
Assessment of Application
1
If the Access Application is approved by Essential Energy in its sole discretion, Essential
Energy will sign and return a copy of the Access Application, and any additional conditions
to which the approval is subject, to the Carrier.
2
The signed Access Application under clause 2.4(1) will evidence the Access Licence on the
terms of the approved Access Application, the Design Information Package, any additional
conditions under clause 2.5(1), and this Agreement. If any terms or conditions are
submitted by the Carrier as part of or with the Access Application or initial application under
clause 2.2(1), such terms and conditions shall not form part of the Access Licence and shall
have no effect. The Access Licence commences from the date that it is signed by Essential
Energy.
3
If Essential Energy rejects any Access Application, it will provide reasons for rejection.
2.6
Nature of Access Licence
The rights conferred by Essential Energy under an Access Licence rest in contract only and nothing
in an Access Licence creates any tenancy between Essential Energy and the Carrier nor does it
confer upon the Carrier any right or interest in the Power Poles by way of occupation rights (other
than the licence) easements, rights of way or otherwise.
Commercial-in-Confidence
Page 9 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
2.7
Relocation
If the Carrier wishes to move Essential Energy Power Poles or assets, equipment or facilities of third
parties currently installed on Power Poles, the Carrier must:
1
give Essential Energy notice of doing so;
2
if applicable, give such third party notice of doing so;
3
proceed only if and when written consent has been given by Essential Energy in its
discretion and subject to the conditions of (if any) such consent;
4
ensure that the work is carried out at the Carrier’s cost by Accredited Service Providers, in
accordance with the Engineering Practices, and Essential Energy’s procedures for outage
notifications and switching requests, as required and as advised by Essential Energy from
time to time;
5
ensure that:
a
there is no damage to the Distribution Network, any such third party assets,
equipment or facilities, or any premises owned or occupied by Essential Energy;
b
it minimises any disruption to or interference with the Distribution Network, and
any such third party assets or facilities during such relocation, and
c
(where applicable) it promptly makes good the Distribution Network, premises
owned or occupied by Essential Energy, and land, to a condition equivalent to its
condition before the relocation commenced; and
6
pay Essential Energy or its customer or other third party any costs incurred by them directly
or indirectly as a result of such relocation.
2.8
Acknowledgement
The Carrier acknowledges that to the extent that any Power Pole is situated on land that is not
owned by Essential Energy, Essential Energy is unable to authorise, licence or grant rights in favour
of the Carrier to enter upon or occupy the land for telecommunications purposes. For each Access
Licence, the Carrier must obtain all Authorisations necessary to enter onto and occupy the relevant
land and for planning purposes. If the Carrier has not obtained such Authorisations before the
Access Licence is approved and signed by Essential Energy under clause 2.4, the Access Licence is
granted on the condition that, and the Carrier warrants that, all such Authorisations are obtained
prior to the Carrier entering onto the relevant land or commencing work.
3
ESSENTIAL ENERGY WORK
3.1
Right to Maintain and Operate Assets
Nothing in this Agreement derogates from Essential Energy’s right to maintain and operate assets
for the distribution of electricity.
3.2
Essential Energy Obligations
Essential Energy agrees that when:
1
planning and constructing new Power Poles on the Distribution Network where Approved
Equipment exists;
2
installing or authorising cabling and other equipment for or by any third party on a Power
Pole to which Approved Equipment is attached (third party attachment work); or
3
undertaking or authorising replacement, treatment, maintenance or relocation of any Power
Pole to which the Approved Equipment is attached.
Commercial-in-Confidence
Page 10 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
it shall to the extent reasonable:
4
ensure that the Approved Equipment is maintained and accommodated;
5
ensure that if any Power Pole is replaced, suitable allowance is made available to the Carrier
to attach the Approved Equipment;
6
except where it is not feasible to do so because of an emergency in relation to Essential
Energy’s supply of electricity services, give notice to the Carrier of the work referred to in
clauses 3.2(1) to 3.2(3) and give the Carrier the opportunity to install the Approved
Equipment at the same time as the third party attachment work (if any); and
7
use its reasonable endeavours to minimise interference with the Approved Equipment.
3.3
Power Pole Relocation
Subject to this clause 3.3, Essential Energy may replace, treat, maintain, relocate, transfer
ownership or remove any Power Pole or associated equipment or facilities on which the Approved
Equipment exists at its sole discretion, without liability to the Carrier or any obligation to provide the
Carrier with a replacement Power Pole, associated equipment or facilities. Where Essential Energy
removes, transfer or relocates a Power Pole, associated equipment or facilities pursuant to this
clause 3.3:
1
Essential Energy shall give the Carrier 20 Business Days notice of its intention to remove,
transfer or relocate that Power Pole, associated equipment or facilities;
2
the Access Licence in respect of the removed or relocated Power Pole, associated equipment
or facilities is deemed revoked, and Essential Energy must refund the Carrier that part of
any prepaid Annual Licence Fee relating to the period after the date of removal, transfer or
relocation.
3.4
Exclusive Use
Notwithstanding any other provision of this Agreement, Essential Energy may in its discretion
require the removal of Approved Equipment for exclusive use of a Power Pole, associated equipment
or facilities. Where Essential Energy requires exclusive use of a Power Pole, associated equipment
or facilities pursuant to this clause 3.4:
1
Essential Energy will give the Carrier 20 Business Days notice in writing of its requirement
for exclusive use of the Power Pole, associated equipment or facilities;
2
the Access Licence in respect of that Power Pole, associated equipment or facilities will be
deemed to be terminated upon expiry of the notice period referred to in clause 3.4(1); and
3
Essential Energy will refund the Carrier that part of any prepaid Annual Licence Fee relating
to the period after the date of removal of the Approved Equipment.
4
INSTALLATION
4.1
Timing
After approval is granted by Essential Energy under clause 2.5, the Carrier shall install the Approved
Equipment within 60 Business Days of the Access Licence Commencement Date or such other time
as is agreed between the Parties (subject to clause 2.4(2)(d)), otherwise the right to install is
withdrawn and the Carrier must re-apply for approval before attaching the Approved Equipment, it
being acknowledged that another party may have applied to use the relevant Power Poles and
therefore the specified position previously granted to the Carrier may no longer be available or has
otherwise become unsuitable.
Commercial-in-Confidence
Page 11 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
4.2
Installation
1
The Carrier must use Accredited Service Providers for any installation work on Power Poles,
associated equipment or facilities which is not carried out by Essential Energy and such
work must comply with the Engineering Practices, and be undertaken in a professional
manner exercising due skill and care.
2
Essential Energy may, at the Carrier’s expense, oversee all work carried out by Accredited
Service Providers on any Power Poles to ensure compliance with the Engineering Practices.
3
At Essential Energy’s request the Carrier must attend, and ensure that its Accredited
Service Providers and project manager/supervisor attend, weekly meetings with Essential
Energy in relation to any such installation work.
4
The Carrier must install all Approved Equipment in such a manner to ensure that:
a
the Distribution Network and any premises owned or occupied by Essential Energy
are not damaged, interfered with or their operation disrupted or inhibited;
b
as far as reasonably possible, third parties may also install Equipment on Power
Poles, associated equipment or facilities; and
c
any existing third party equipment or facilities are not damaged or interfered with
or their operation disrupted or inhibited.
4.3
De-energising and Re-energising
1
The Carrier acknowledges that powerlines will not be de-energised for the installation of the
Approved Equipment unless by agreement between the Parties in which instance the Carrier
shall be liable for any costs incurred in de-energising and re-energising the powerlines.
2
The Carrier must give Essential Energy 15 Business Days written notice of any proposal for,
or action to be taken in relation to, the de-energising or re-energising of a powerline.
5
MAINTENANCE AND OPERATIONS
5.1
Maintenance and operational work
1
The Carrier must at its own expense maintain and keep the Approved Equipment in good,
proper and safe condition and repair. All:
a
maintenance and repair work;
b
relocation or removal work permitted under this Agreement or an Access Licence;
and
c
any other work undertaken on or in connection with the Approved Equipment,
Power Poles, associated equipment or facilities, third party equipment or facilities,
or the Distribution Network,
by or on behalf of the Carrier, shall be carried out by Accredited Service Providers in
accordance with the Engineering Practices, in a professional manner exercising due skill and
care, and shall be to the satisfaction of Essential Energy.
2
The Carrier must ensure that any and all work referred to in clause 5.1(1) does not:
a
damage, interfere with, disrupt or inhibit the operation of the Distribution Network
or any premises owned or occupied by Essential Energy;
b
as far as reasonably possible, prevent or inhibit third parties from also installing
Equipment on Power Poles, associated equipment or facilities; or
c
damage, interfere with, disrupt or inhibit the operation of any existing third party
equipment or facilities.
Commercial-in-Confidence
Page 12 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
3
The Carrier must have and maintain an up to date record of all Accredited Service Providers
who maintain or otherwise attend to Approved Equipment on Power Poles, associated
equipment or facilities and evidence of the accreditations of each of them. Upon request,
the Carrier must provide Essential Energy with a copy of such records and evidence.
4
Upon request, the Carrier must provide Essential Energy with a schedule of proposed
maintenance. Essential Energy may require the Carrier to amend its proposed maintenance
schedule at its discretion. In the event of any conflict between the maintenance schedules
of the Parties, Essential Energy’s maintenance schedule and activities conducted thereunder
shall take precedence to the extent of the conflict.
5.2
Reporting Obligation
1
The Carrier must:
a
within 10 Business Days of the conclusion of
has undertaken maintenance or repair of
Essential Energy with a report specifying
associated equipment or facilities where
undertaken; and
each month during which the Carrier
any Approved Equipment, provide
the location of each Power Pole,
such maintenance or repair was
b
provide such other reports regarding Approved Equipment, installation, repair,
maintenance, relocation and removal work as may be requested by Essential
Energy from time to time.
2
The Carrier must keep records of the location, equipment and maintenance of Approved
Equipment on each Power Pole, associated equipment and facilities, and upon the issuing of
a Notice by Essential Energy requiring the Carrier to do so, produce records to Essential
Energy within 10 Business Days of the date of receipt of the Notice.
5.3
Carrier Failure
1
If Essential Energy considers that the Carrier has failed to
maintenance or repair of any of its Equipment to an extent
become a hazard to life or property, or has or may affect
Network, Essential Energy may by written notice direct the
within 10 Business Days.
2
Where the Carrier fails to comply with a direction to remedy in accordance with clause
5.3(1), Essential Energy may at the Carrier’s cost, take appropriate action including
adjustment, removal or disconnection of the relevant Equipment.
5.4
Emergency Procedures
1
Subject to this clause 5.4, where Essential Energy considers it is necessary to undertake
Emergency Work in relation to the Distribution Network, it may do so at any time without
liability to the Carrier . If the Approved Equipment has to be turned off or powered down or
Essential Energy requires assistance in relation to the Approved Equipment, Essential
Energy will notify the Carrier and the Carrier must dispatch personnel on an emergency
basis to the Power Pole, associated equipment or facilities in accordance with the same
procedures and time frames as the Carrier would adopt in an emergency relating to its own
Equipment at that Power Pole, associated equipment or facilities. The Carrier must provide
Essential Energy upon request with details of its emergency procedures as may be amended
from time to time.
2
If the Carrier becomes aware of a fault, defect or problem with the Approved Equipment
the Distribution Network or a Power Pole, associated equipment or facilities which causes,
there is a reasonable risk that it might cause either damage to the Distribution Network
physical harm to any person or material technical interference with any equipment
services at the Power Pole, associated equipment or facilities:
a
provide for proper operation or
that the Equipment has or may
the security of the Distribution
Carrier to remedy the situation
or
or
or
or
the Carrier must notify Essential Energy as soon as practicable; and
Commercial-in-Confidence
Page 13 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
b
3
4
Essential Energy may (at the Carrier’s expense) take interim measures reasonably
necessary in relation to the Approved Equipment to prevent such injury or damage
or interference (including where necessary adjusting or switching off the
Equipment), pending the attendance of the Carrier’s personnel to perform the
required corrective work and any amount expended by Essential Energy shall be
invoices to the Carrier and must be paid within 20 Business Days of the day of
invoice.
If Essential Energy becomes aware of a fault, defect or problem with the Approved
Equipment or the Distribution Network or a Power Pole, associated equipment or facilities
which causes, or there is a reasonable risk that it might cause, either damage to the
Approved Equipment or physical harm to any person maintaining the Equipment or material
technical interference with the Equipment at the Power Pole, associated equipment or
facilities:
a
then Essential Energy will notify the Carrier as soon as practicable; and
b
Essential Energy may (at the Carrier's expense) take interim measures reasonably
necessary in relation to the Equipment to prevent such injury or damage or
interference (including where necessary adjusting or switching off the Equipment),
pending the attendance of the Carrier's personnel or contractors to perform the
required corrective work and any amount expended by Essential Energy will be
invoiced to the Carrier and must be paid within 20 Business Days of the date of
invoice.
The 24 hour operational contact details of each party (Operational Contacts), for the
purpose of receiving notification of any Emergency, faults, defects or other network,
installation or maintenance problems of which either party becomes aware are:
Carrier
Attention:
Phone:
Mobile:
Facsimile:
Email:
Essential Energy
Network Control Room:
Supply Interruptions Group (SIG)
Phone:
13 20 80
(02) 6588 4918
Facsimile:
(02) 6589 8146
Email:
[email protected]
Utility Contact (only where SIG
not available):
Sav Aristides
Mobile:
0448 408 834
5
Verbal or phone notification of the operational contacts referred to at sub-clause 5.4(4) is
for convenience only and does not constitute, or substitute for, the methods of giving notice
specified in clause 14.14. A notice, consent, approval or other communication under this
Agreement regarding any Emergency, faults, defects or other network, installation or
maintenance problems of which a party becomes aware are may be given to the Operational
Contacts, using the methods specified in clause 14.14, and will have effect according to
clause 14.14.
6
The contact information in clause 5.4(4) may be varied by a party from time to time by
notice to the other party.
Commercial-in-Confidence
Page 14 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
5.5
No Interference
The Carrier must ensure that its Equipment does not:
1
inhibit or disrupt the operation of, or interfere with the Distribution Network or reduce its
capacity, reliability or safety; or
2
inhibit or disrupt the operation of, or interfere with any existing third party equipment or
facilities.
5.6
Environmental requirements
In carrying out its obligations and exercising its rights under this Agreement or an Access Licence,
the Carrier will (and will ensure that its employees, contractors and agents):
1
comply with all applicable Environmental Laws;
2
obtain, and comply with all conditions attaching to, any Environmental Approval;
3
not cause any Contamination or Pollution at the site of a Power Pole, associated equipment
or facilities (excluding where authorised by any Environmental Approval);
4
promptly notify Essential Energy if:
5.7
a
it becomes aware a complaint is made of a breach or alleged breach of an
Environmental Law in respect of the Approved Equipment or any work performed in
relation to or in connection with the Approved Equipment under this Agreement;
b
an incident occurs at the site of a Power Pole, associated equipment or facilities as
a result of the Approved Equipment or any work performed in relation to or in
connection with the Approved Equipment under this Agreement which harms the
Environment;
c
an Environmental Notice is served on the Carrier in respect of the site of a Power
Pole, associated equipment or facilities; or
d
it is in breach of any of its obligations under this clause 0.
Remediation
The Carrier will remediate any Contamination or Pollution on or from the site of a Power Pole,
associated equipment or facilities that is caused by the Carrier so that the site is in a state as close
as practicable to the state the site was in at the date the Access Licence commenced.
6
COMPLIANCE
6.1
Compliance with Applicable Laws
The Carrier must (and must ensure that its employees, agents and contractors), in performing its
obligations and exercising its rights under this Agreement or an Access Licence, exercise due skill
and care and comply with all applicable Laws including without limitation:
1
the Act including any codes or standards in force under the Act;
2
the Trade Practices Act 1974 (Cth) and state and territory fair trading legislation;
3
the Electricity Safety Act 1945 (NSW) and any applicable regulations in force under this act;
4
the Electricity Supply Act 1995 (NSW) and any applicable regulations in force under this act;
and
5
State Environmental Planning Policy (Infrastructure) 2007.
Commercial-in-Confidence
Page 15 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
6.2
Authorisations
1
The Carrier must at its own expense obtain and maintain all applicable Authorisations to
install, maintain or operate the Approved Equipment.
2
Upon demand, the Carrier will provide to Essential Energy evidence to the reasonable
satisfaction of Essential Energy, that the Carrier has complied with the requirements of this
clause 6.2 however, nothing in this clause 6.2 shall be construed to infer that Essential
Energy is or may be liable for any non-compliance by the Carrier with the terms of this
Agreement, an Authorisation or any applicable Law.
3
Essential Energy shall not be required to verify that the Carrier has complied with any of the
requirements of this clause 6.2.
6.3
Carrier Employees and Contractors
1
The Carrier acknowledges and agrees that, to the extent permitted by law, the Carrier is
responsible and liable, and Essential Energy is not responsible or liable, for the occupational
health and safety of the Carrier’s employees, contractors and agents.
2
The Carrier is responsible for ensuring all employees and contractors of the Carrier are
suitably trained, accredited (and are Accredited Service Providers if applicable) and
equipped to undertake the work.
3
Essential Energy may audit any person accessing the Approved Equipment on Power Poles
or the Distribution Network for evidence of accreditation as an Accredited Service Provider
at any time.
4
The Carrier must:
a
ensure so far as is reasonably practicable:
i
the health, safety and welfare of all the Carrier’s employees, contractors
and agents in conducting work in connection with Approved Equipment,
any Power Pole, associated equipment or facility, or the Distribution
Network; and
ii
that persons other than its employees contractors and agents are not
exposed to risks to their health and safety arising from such work;
b
comply with its obligations under any applicable occupational health and safety
Laws; codes of practice made under such Laws, relevant work cover guidelines and
any provisions relating to occupational health and safety included in the
Engineering Practices; and
c
provide adequate instruction, information, training and supervision to the Carrier’s
employees, contractors and agents to ensure that they are not exposed to risks to
their health and safety arising from the work.
5
The Carrier warrants at all times that its employees, contractors and agents have received
adequate information, instruction and training in respect of the Carrier’s obligations under
the applicable occupational health and safety Laws and any provisions of the Engineering
Practices dealing with occupational health and safety.
7
PAYMENT
7.1
Annual Licence Fee
The Carrier must pay the Annual Licence Fee (pro rata as applicable) in respect of each Access
Licence:
1
in advance on the relevant Access Licence Commencement Date for the period from that
date to the earlier of the next occurring 1 July or 1 January; and
Commercial-in-Confidence
Page 16 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
2
thereafter, 6 monthly in advance on 1 January and 1 July in each year during the term of
the Access Licence until the expiry or termination of that Access Licence,
in each case in accordance with an invoice issued by Essential Energy.
7.2
Adjustment of Annual Licence Fee
1
Essential Energy may, by publishing a notice on its website www.essentialenergy.com.au at
least 20 Business Days before any Adjustment Date, adjust the rates set out in the Access
Price Schedule, and the Annual Licence Fee payable by the Carrier under clause 7.1 is
adjusted accordingly on and from that Adjustment Date.
2
Essential Energy may adjust the rates set out in the Access Price Schedule in accordance
with the greater of the AER approved network price change or the CPI as calculated under
clause 7.2(3).
3
A CPI increase in the Annual Licence Fee is calculated in accordance with the following
formulae:
Adjusted Annual Licence Fee = PLF x CPI 1
CPI 2
Where:
"PLF"
Date;
means the Annual Licence Fee applying immediately before the relevant Adjustment
"CPI 1" means the CPI for the 12 month period immediately prior to the relevant
Adjustment Date;
"CPI 2" means the CPI for the 12 month period one year before the period to which CPI 1
relates.
7.3
Interest
1
If the Carrier fails to pay an amount on the due date for payment, the Carrier must pay to
Essential Energy interest at the Default Rate on that amount, calculated and payable daily,
computed from the due date until the amount is paid in full.
2
The Default Rate is (x + 2)% per annum where x is the interest rate quoted by Essential
Energy’s principal bankers (“Bank”) as its corporate reference rate (“Published Rate”) or,
should there cease to be a Published Rate, the rate which the Bank designates as being an
appropriate substitute for the Published Rate (“Substitute Rate”). A certificate signed by
a manager or other officer of the Bank stating the Published Rate or the Substitute Rate at a
particular date is conclusive evidence of the rate at the particular date.
7.4
Set-Offs, Counterclaims and Other Deductions
1
A party must make all payments under this Agreement without set-off or counterclaim.
2
Except as required by law, a party may not make a deduction in respect of a present or
future tax, levy, impost, duty, charge or fee of any nature which is or may be imposed,
levied or assessed by a taxing or other authority.
8
GOODS AND SERVICES TAX
1
In this clause 8, “GST Act” means A New Tax System (Goods and Services Tax) Act 1999,
as amended.
2
Except for defined terms in this Agreement, capitalised expressions in this clause 8 have the
same meaning as in the GST Act.
Commercial-in-Confidence
Page 17 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
3
A reference to GST payable by a
representative member of any GST
to an input tax credit entitlement
entitlement of the representative
member.
party includes any corresponding GST
group of which that party is a member,
of a party includes any corresponding
member of any GST group of which
payable by the
and a reference
input tax credit
that party is a
4
Unless GST is expressly included, any amount payable under this Agreement for any supply
made under or in connection with this Agreement does not include GST.
5
To the extent that any supply made under or in connection with this Agreement is a taxable
supply, the GST exclusive consideration otherwise payable or provided for that taxable
supply is increased by an amount equal to that consideration multiplied by the rate at which
GST is imposed in respect of the taxable supply, and subject to receipt of an effective tax
invoice, is payable at the same time.
6
If for any reason (including, without limitation, the occurrence of an adjustment event) the
amount of GST paid on a taxable supply (taking into account any decreasing or increasing
adjustments in relation to the taxable supply) varies from the GST paid by the recipient:
a
the supplier must provide a refund or credit to the recipient, or the recipient must
pay a further amount to the supplier, as appropriate, at the same time as the GST
exclusive component of the adjustment is refunded or paid;
b
the refund, credit or further amount (as the case may be) will be calculated by the
supplier in accordance with the GST Law; and
c
the supplier must notify the recipient of the refund, credit or further amount within
14 days after becoming aware of the variation to the amount of GST payable. If
there is an adjustment event in relation to the supply, the supplier’s requirement to
notify the recipient will be satisfied by issuing to the recipient an adjustment note
within 14 days after becoming aware of the occurrence of the adjustment event.
7
Each Party agrees to do all things, including providing tax invoices and other
documentation, that may be necessary or desirable to enable or assist the other Party to
claim any input tax credit, adjustment or refund in relation to any amount of GST paid or
payable in respect of any supply made under or in connection with this Agreement.
8
If a payment to a Party under this Agreement is a payment by way of reimbursement or
indemnity and is calculated by reference to the GST inclusive amount of a loss, cost or
expense incurred by that Party, then the payment is to be reduced by the amount of any
input tax credit to which that Party is entitled in respect of that loss, cost or expense before
any adjustment is made for GST pursuant to clause 8(5).
9
INDEMNITY AND LIABILITY
9.1
Indemnity
1
The Carrier indemnifies and keeps indemnified Essential Energy against:
a
all losses incurred by Essential Energy;
b
all liabilities incurred by Essential Energy; and
c
all reasonable costs actually payable by Essential Energy to its own legal
representatives and other reasonable expenses incurred by Essential Energy in
connection with a demand, action, arbitration or other proceeding (including
mediation, compromise, out of court settlement or appeal);
arising directly or indirectly as a result of or in connection with:
d
any wilful or negligent act or omission;
e
loss of or damage to property;
f
personal injury or death;
Commercial-in-Confidence
Page 18 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
g
any breach of any Law; or
h
breach of any term, warranty or condition of this Agreement or an Access Licence,
by the Carrier or any of the Carrier’s officers, employees, agents, representatives or
contractors. This indemnity survives expiry or termination of this Agreement.
9.2
Limitation of Essential Energy’s Liability
1
Notwithstanding any other provision of this Agreement, to the fullest extent permitted by
law, Essential Energy and its employees, agents and contractors exclude all liability,
whether arising in tort (including negligence), in contract, in equity, under statute or
otherwise, for:
a
any consequential, indirect or special losses, costs or damages of any kind
(including, without limitation, loss of profit, expectation, revenue, goodwill,
reputation or data, loss or denial of opportunity, or business interruption) arising
directly or indirectly under or in connection with this Agreement (including any
Access Licence) or the provision or non-provision of access to the Distribution
Network;
b
any requirement to remove or power down the Approved Equipment;
c
any delay in approving the connection of Equipment to a Power Pole, associated
equipment or facilities;
d
any interruption to the Carrier’s services in accordance with this Agreement..
2
Notwithstanding any other provision of this Agreement, Essential Energy’s aggregate
liability (whether arising under statute, in contract, in tort (including negligence), or
otherwise) for any losses costs, damages or expenses suffered or incurred under or in
connection with this Agreement (including any Access Licence) or the provision or nonprovision of access to the Distribution Network, is limited to the Annual Licence Fees paid in
the 12 months prior to the occurrence giving rise to the liability.
9.3
Exclusion of warranties
To the fullest extent permitted by law, Essential Energy excludes all express, statutory and implied
warranties, conditions and representations arising under or relating in any way to:
1
this Agreement or any Access Licence;
2
the Distribution Network or any part thereof (including any Power Pole), or
3
the Engineering Practices,
including any warranties as to fitness for purpose. Essential Energy does not warrant or represent
the accuracy or reliability of any information or directions provided or disclosed by, or learned from,
Essential Energy, its employees, contractors or agents concerning the Distribution Network or any
part thereof (including any Power Pole), including information concerning its safety, condition, state
of repair, suitability, reliability or fitness for purpose. The Carrier is solely responsible for conducting
all necessary enquiries, exercising all due diligence and satisfying itself, relying solely upon its own
judgment, as to the safety, suitability, condition, repair, and fitness for its purposes of the
Distribution Network and any part thereof (including any Power Pole).
10
CONFIDENTIALITY
1
In this clause 10 unless the context otherwise requires:
a
Approved Purposes means the purposes of this Agreement;
Commercial-in-Confidence
Page 19 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
b
Confidential Information includes:
i
ii
information of every kind concerning or in any way connected with:
A
either Party or any Related Body Corporate;
B
the business, processes, know how, methodologies, facilities,
customers, property or affairs of either Party or any Related Body
Corporate, or of any officers or employees of either Party or any
Related Body Corporate; and
information of every kind which is the property of either Party or any
Related Body Corporate;
which is confidential or commercially sensitive, or marked as such, or which the
receiving party knew or ought reasonably to have known was confidential or
commercially sensitive, and which is disclosed communicated or delivered in
writing, orally or by any other means by one party (Disclosing Party) or by any
person on the Disclosing Party’s behalf to, or otherwise learnt by, or comes to the
knowledge of or into the possession of the other party (Receiving Party) or an
employee, officer or agent of the Receiving Party.
2
Information generated about Essential Energy’s or the Carrier’s network or facilities as a
result of or in connection with the provision of access to the Carrier under this Agreement is
Confidential Information of Essential Energy and the Carrier respectively.
3
A Receiving Party must:
4
5
a
maintain and take all steps necessary to maintain all Confidential Information in
confidence;
b
ensure that proper and secure storage is provided for the Confidential Information
while in the possession or under the control of the Receiving Party;
c
take all reasonable precautions necessary to prevent accidental disclosure of any of
the Confidential Information;
d
not disclose any of the Confidential Information to any person other than those of
its employees, officers, subcontractors, assignees and agents who are reasonably
required to receive and consider the Confidential Information in the course of (and
solely for) the Approved Purposes, or to its professional advisors solely for the
purposes of seeking professional advice;
e
use Confidential Information solely for the Approved Purposes.
This clause 10 does not impose obligations on a Receiving Party concerning Confidential
Information which the Receiving Party reasonably proves:
a
is publicly available at the date of this Agreement;
b
becomes publicly available subsequent to the date of this Agreement without
breach of this Agreement;
c
the Receiving Party obtained from a third party without breach by that third party
of any obligation of confidence concerning that Confidential Information; or
d
was already lawfully in the possession of the Receiving Party prior to disclosure by
the Disclosing Party.
It is not a breach of clause 10(3) for:
a
either party to disclose Confidential Information which it is obliged by law to
disclose to the person to whom it is disclosed;
b
Essential Energy to disclose Confidential Information solely to the extent necessary
to comply with a lawful request, order or direction of any relevant New South Wales
Government Minister or agency with appropriate supervisory or oversight
responsibilities.
Commercial-in-Confidence
Page 20 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
6
A Receiving Party must (at the Disclosing party’s option) return or destroy all documents
and other media which contain Confidential Information to the Disclosing party:
a
immediately when requested by the Disclosing Party to do so; and
b
if not earlier requested, on termination of this Agreement,
provided the Receiving Party may retain a copy solely to the extent necessary to comply
with its own record-keeping requirements.
7
At the same time as it complies with clause 10(6), a Receiving Party must also ensure that
its officers, employees, subcontractors, assignees and agents return any of the documents
and other media which contain Confidential Information held by them.
8
Both parties acknowledge that:
a
the Confidential Information is at all times the property of the Disclosing Party;
b
a breach of this clause 10 would be harmful to the business interests of the
Disclosing Party;
c
monetary damages alone would not be a sufficient remedy for a breach of this
clause 10; and
d
in addition to any other remedy which may be available in law or equity, a
Disclosing Party is entitled to interim, interlocutory and permanent injunctions or
any of them to prevent breach of this clause 10 and to compel specific performance
of it.
9
This clause is subject to the requirements of clause 2.1 of the Code as applicable.
11
RISK AND INSURANCE
11.1
Risk
The Approved Equipment remains at the Carrier’s risk at all times.
11.2
Insurance
1
The Carrier warrants that it has in place, and will keep current during the term of this
Agreement, and will not vitiate or render void or voidable:
a
professional indemnity insurance for an amount of not less than $20 million per
claim and in the annual aggregate; and
b
public liability insurance (covering personal injury and property damage) for an
amount of not less than $20 million per claim,
(which sums must be reviewed each year and increased where necessary in accordance
with prudent commercial practices) which will insure the Carrier in respect of anything
which might be done or caused under or in relation to this Agreement by the Carrier its
employees, agents or contractors, or Equipment including, without limiting the generality of
the foregoing:
a
any liability of the Carrier to Essential Energy;
b
any liability of the Carrier to third parties;
c
any liability of Essential Energy to third parties caused by the Carrier, its
employees, Accredited Service Providers, or Equipment; and,
d
any liability of Essential Energy to third parties contributed to by the Carrier, its
employees, Accredited Service Providers or Equipment, to the extent of that
contribution.
Commercial-in-Confidence
Page 21 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
2
The insurance policies referred to in clause 11.2(1) must be with registered Australian
insurance companies or such other companies specifically accepted in writing by Essential
Energy.
3
The Carrier will ensure that the contracts and public risk insurance policies referred to in
clause 11.2(1) note Essential Energy on the policies as an insured party.
4
The Carrier will ensure that each of the insurance policies referred to in clause 11.2(1)
includes a waiver of subrogation clause that is effective to waive all rights against Essential
Energy, its employees, agents and contractors.
5
Where Essential Energy is required to pay any premium or increased premium (as the case
may be) as a result of or in any way connected with the Carrier's Network including
Equipment installed or to be installed on Essential Energy's Power Poles (the "Increased
Premium"), then the Carrier shall pay to Essential Energy upon receiving written notice
from Essential Energy (and in any event no more than 14 Business Days after receiving
written notice from Essential Energy) the amount of any Increased Premium.
11.3
Other Insurance
The Carrier must also have in force and maintain property insurance for the Approved Equipment
used by the Carrier under this Agreement and workers compensation insurance in accordance with
any applicable Laws in the place where the work is performed.
12
TERM AND TERMINATION
12.1
Term
1
Subject to this Agreement, this Agreement commences on the date that it is signed and is
for a minimum term of 5 years. It continues after that until terminated by either Party
giving not less than 60 days prior written notice to the other Party expiring at any time.
2
Subject to this Agreement, each Access Licence commences on the Access Licence
Commencement Date and continues for a term of 10 years.
12.2
Default by Carrier
If the Carrier materially breaches an obligation under this Agreement or an Access Licence and
Essential Energy gives a notice ("Breach Notice") to the Carrier:
1
citing this clause;
2
specifying the breach; and
3
requiring the Carrier to remedy the breach;
and the Carrier fails to remedy the breach within 20 Business Days after receiving the Breach Notice
("Remedy Period"), or it is not capable of remedy, without limiting its rights under clause 12.4,
Essential Energy may, by giving 5 Business Days notice:
4
refuse to continue to provide the Carrier with, or suspend, access to the Power Pole
associated equipment and facilities in respect of which the breach has occurred until the
breach is remedied in full; and/or
5
disconnect and/or remove the Approved Equipment from the Power Pole, associated
equipment and facilities in respect of which the breach has occurred; and/or
6
terminate the relevant Access Licence(s) to which the breach relates.
Commercial-in-Confidence
Page 22 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
12.3
Additional Rights of Termination
Essential Energy may terminate this Agreement and all Access Licences immediately by notice to the
Carrier if:
1
the Carrier ceases to be a licensed carrier under the Act; or
2
a Change of Control Event occurs in respect of the Carrier.
12.4
Termination for default by either Party
A Party may terminate this Agreement immediately by notice in writing to the other Party if
1
the other Party has committed a material breach of this Agreement and the breach remains
unremedied for 30 days after receipt of the first Party’s notice of the breach; or
2
the other Party suffers an Insolvency Event.
12.5
Effect of Termination
Termination of this Agreement does not affect the rights or liabilities of the Parties in relation to any
cause of action accruing prior to termination.
12.6
Access Licences
1
Subject to clause 12.6(2), on expiry or termination of this Agreement, each Access Licence
will continue until its term expires, and all terms of this Agreement relevant to a continuing
Access Licence will survive and will continue until such expiry (including for the avoidance of
doubt Essential Energy’s rights of termination of this Agreement or an Access Licence for
default by the Carrier).
2
The Carrier may also terminate any Access Licence upon giving 90 Business Days notice to
Essential Energy.
3
All Access Licences terminate on termination of this Agreement for default by the Carrier
(including termination by Essential Energy under clauses 12.3, or 12.4).
12.7
Carrier’s Obligations upon Expiry or Termination
1
Upon expiry or termination of an Access Licence for any reason, whether individually or as a
result of termination of this Agreement, the Carrier must cease to use the Approved
Equipment on the relevant Power Pole or all Power Poles respectively and any associated
equipment or facilities. Furthermore, the Carrier must at its cost:
a
remove the Equipment from the relevant Power Pole(s) and any associated
equipment or facilities;
b
restore the condition of the relevant Power Pole(s) and any associated equipment
or facilities to the reasonable satisfaction of Essential Energy, fair wear and tear
excepted;
c
(where applicable) promptly make good the Distribution Network, premises owned
or occupied by Essential Energy, and land, to a condition equivalent to its condition
before the Access Licence commenced, fair wear and tear excepted;
within 60 Business Days of expiry of termination. All terms of this Agreement relevant to
such Equipment will survive and will continue until such removal. This clause survives
termination or expiry of this Agreement.
2
In undertaking any removal, restoration and/or make good in accordance with clause
12.7(1), the Carrier must ensure that:
a
there is no damage to the Distribution Network, any third party assets or facilities,
or any premises owned or occupied by Essential Energy; and
Commercial-in-Confidence
Page 23 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
b
it minimises any disruption to or interference with the Distribution Network, and
any such third party assets or facilities during such work.
13
DISPUTE RESOLUTION
13.1
Notice of Dispute
If a dispute arises in connection with this Agreement, a party to the dispute must give to the other
party or parties to the dispute notice specifying the dispute and requiring its resolution under this
clause 13 (“Notice of Dispute”).
13.2
Dispute Resolution
1
The chief executive officers or equivalent officer (or their appointed representatives) of each
party must confer within 7 days after the Notice of Dispute is given to try to resolve the
dispute.
2
If the dispute is not resolved within 7 days after the Notice of Dispute is given to the other
Party, (“First Period”), the dispute is by this clause submitted to mediation. The mediation
must be conducted in Sydney. The Institute of Arbitrators and Mediators Australia Rules for
the Mediation of Commercial Disputes (Edition 2 – September 1995) as amended by this
clause 13 to the mediation, except where they conflict with this clause 13.
3
If the parties have not agreed upon the mediator and the mediator’s remuneration within 7
days after the First Period:
a
the mediator is the person appointed by; and
b
the remuneration of the mediator is the amount or rate determined by the
President of the Law Society of NSW (“President”) or the President’s nominee,
acting on the request of any party to the dispute.
4
The parties must pay the mediator’s remuneration in equal shares. Each party must pay its
own costs of the mediation.
5
If the dispute is not resolved within 28 days after the appointment of the mediator
(“Second Period”), the dispute is by this clause referred to arbitration. The arbitration
must be conducted in Sydney by a single arbitrator.
6
If the parties have not agreed upon the arbitrator within 7 days after the Third Period, the
arbitrator is the person appointed by the President or the President’s nominee, acting on the
request of any party to the dispute.
7
After accepting the appointment and during the arbitration the arbitrator may:
a
require the parties to lodge security or further security towards the arbitrator’s fees
and expenses; and
b
apply any security towards those fees and expenses;
but the arbitrator may not direct a party to the dispute to provide security for the costs of
the arbitration to be incurred by any other party.
8
This clause 13 does not prevent any party from obtaining any injunctive, declaratory or
other interlocutory relief from a court which may be urgently required.
9
This clause 13 applies where the Agreement is otherwise void or voidable.
13.3
Performance during Dispute
Subject to clause 13, a Party must continue to fulfil its obligations under this Agreement during the
pendency of an issue or dispute and any dispute resolution process invoked under this clause 13.
Commercial-in-Confidence
Page 24 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
14
GENERAL
14.1
Ownership of Equipment
Unless the Parties agree otherwise, all Approved Equipment remains the property of the Carrier and
the Carrier is entitled to remove any or all of its Approved Equipment upon providing 20 Business
Days notice to Essential Energy. This clause survives termination or expiry of an Access Licence or
this Agreement.
14.2
Transfer of ownership in Power Poles to Carrier
1
If the Carrier requests, Essential Energy may at its sole discretion agree to transfer to the
Carrier ownership in one or more Power Poles the subject of an Access Licence, on terms
substantially in accordance with the “Transfer of Poles Deed” set out in Schedule 2.
2
From the date of transfer of ownership of each Power Pole to the Carrier under clause
14.2(1):
14.3
a
the Access Licence in respect of that Power Pole shall be deemed to be revoked;
and
b
the transferred Power Pole and the attached Approved Equipment are no longer
governed by this Agreement.
No Partnership
This Agreement does not create or evidence a partnership or joint venture.
14.4
Consents and Approval
Essential Energy may give conditionally or unconditionally or withhold its approval or consent in its
absolute discretion unless this Agreement expressly provides otherwise.
14.5
Public Announcements
Unless required by law, an announcement, circular or other public disclosure of the contents of this
Agreement must not be made or permitted by a party without the prior written approval of the other
parties.
14.6
Assignment
The Carrier must not assign, transfer or otherwise deal with any or all of its rights or interest in this
Agreement to any other person without the prior consent of Essential Energy.
14.7
Further Assurance
Each Party must promptly at its own cost do all things (including executing and if necessary
delivering all documents) necessary or desirable to give full effect to this Agreement.
14.8
Entire Understanding
This Agreement:
1
is the entire agreement and understanding between the Parties on everything connected
with the subject matter of this Agreement; and
2
supersedes any prior agreement or understanding on anything connected with that subject
matter.
Commercial-in-Confidence
Page 25 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
14.9
Severability
If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this
Agreement remains in force.
14.10 Waiver
1
A party’s failure or delay to exercise a power or right does not operate as a waiver of that
power or right.
2
The exercise of a power or right does not preclude either its exercise in the future or the
exercise of any power or right.
3
A waiver is not effective unless it is in writing.
4
Waiver of a power or right is effective only in respect of the specific instance to which it
relates and for the specific purpose for which it is given.
5
The Carrier will comply with this Agreement in connection with any access by the Carrier to
Essential Energy’s Distribution Network and agrees that this Agreement constitutes an
agreement between a carrier and a public utility for the purposes of clause 11 of Schedule 3
of the Act.
14.11 Variation
1
An amendment or variation to this Agreement is not effective unless it is in writing and
signed by the parties.
2
Essential Energy may vary this Agreement at any time as necessary to comply with any
Change of Law. Prior to exercising its right to vary this Agreement under this clause
14.11(2), Essential Energy will notify the Carrier in writing of the planned variation, and if
required by the Carrier, will meet with the Carrier as soon as practicable to discuss the
relevant Change in Law and the amendments to this Agreement Essential Energy believes
may be necessary to enable Essential Energy to comply with the Change in Law.
14.12 Costs and Outlays
Each Party must bear its own costs arising out of the negotiation, preparation and execution of this
Agreement and each Access Licence. The Carrier must pay all stamp duty (including fines, penalties
and interest) payable on or in connection with this Agreement and any document executed under it.
14.13 Notices
1
A notice, consent, approval or other communication connected with this Agreement
(“Notice”) has no legal effect unless it is in writing.
2
In addition to any other method of service provided by law, the Notice may be:
3
a
sent by prepaid ordinary post to the address for service of the addressee, if the
address is in Australia and the Notice is sent from within Australia;
b
sent by prepaid airmail to the address for service of the addressee, if the address is
outside Australia or if the Notice is sent from outside Australia;
c
sent by facsimile to the facsimile number of the addressee; or
d
delivered at the address for service of the addressee.
If the Notice is sent or delivered in a manner provided by clause 14.14(2), it must be
treated as given to and received by the party to which it is addressed:
a
if sent by post from within Australia to an address in Australia, on the 2nd Business
Day (at the address to which it is posted) after posting;
Commercial-in-Confidence
Page 26 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
4
b
if sent by post to an address outside Australia or sent by post from outside
Australia, on the 5th Business Day (at the address to which it is posted) after
posting; or
c
if sent by facsimile before 5pm on a Business Day at the place of receipt, on the
day it is sent and otherwise on the next Business Day at the place of receipt; or
d
if otherwise delivered before 5pm on a Business Day at the place of delivery, upon
delivery, and otherwise on the next Business Day at the place of delivery.
Despite clause 14.14(3)(c):
a
a facsimile is not treated as given or received unless at the end of the transmission
the sender’s facsimile machine issues a report confirming the transmission of the
number of pages in the Notice; and
b
a facsimile is not treated as given or received if it is not received in full and in
legible form and the addressee notifies the sender of that fact within 3 hours after
the transmission ends or by 12 noon on the Business Day on which it would
otherwise be treated as given and received, whichever is later.
5
If a notice is served by a method which is provided by law but is not provided by clause
14.14(2), and the service takes place after 5pm on a Business Day, or on a day which is not
a Business Day, it must be treated as taking place on the next Business Day.
6
A Notice sent or delivered in a manner provided by clause 14.14(2) must be treated as
validly given to and received by the party to which it is addressed even if:
7
8
a
the addressee has been liquidated or deregistered or is absent from the place at
which the Notice is delivered or to which it is sent; or
b
the Notice is returned unclaimed.
Essential Energy’s address for service, and facsimile number are:
Name:
Essential Energy
Attention:
Sav Aristides
Address:
PO Box 718
Queanbeyan NSW 2620
Facsimile No:
02 6589 8498
The Carrier’s address for service, and facsimile number are:
Name:
Attention:
Address:
Facsimile No:
9
A party may change its address for service, facsimile number or electronic mail address by
giving Notice of that change to each other party.
10
Any Notice by a party may be given and may be signed by its solicitor.
11
Any Notice to a party may be given to its solicitor by any of the means listed in clause
14.14(2) to the solicitor’s business address, facsimile number or electronic mail address.
14.14 Governing Law and Jurisdiction
1
The law of New South Wales governs this Agreement.
2
The parties submit to the exclusive jurisdiction of the courts of New South Wales and of the
Commonwealth of Australia and agree that any lawsuit must be heard in those courts.
Commercial-in-Confidence
Page 27 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
14.15 Execution of Counterparts
This Agreement may be executed in any number of counterparts. Each counterpart is an original
but the counterparts together are one and the same Agreement.
Commercial-in-Confidence
Page 28 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
EXECUTED as an agreement by:
Signed for and on behalf of ESSENTIAL
ENERGY ABN 37 428 185 226 by its
authorised representative in the presence of:
)
)
)
Signature of Witness
Signature of Authorised Representative
Name of Witness
(BLOCK LETTERS)
Name of Authorised Representative
(BLOCK LETTERS)
Address of Witness
SIGNED for and on behalf of [ ] by its
authorised representative in the presence of:
)
)
)
Signature of Witness
Signature of Authorised Representative
Name of Witness
(BLOCK LETTERS)
Name of Authorised Representative
(BLOCK LETTERS)
Address of Witness
Commercial-in-Confidence
Page 29 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
SCHEDULE 1: ANNUAL LICENCE FEE
Annual Licence Fee = Number of Power Poles
Commercial-in-Confidence
X
Applicable annual charge for each pole in
Accordance with the Access Price
Schedule
Page 30 of 31
Use of Poles Carrier Access Agreement
Commercial-in-Confidence
SCHEDULE 2: TRANSFER OF POLES DEED
Commercial-in-Confidence
Page 31 of 31