Summary QCA Position Aurizon Network Response. a Form of Aurizon Network’s obligations for the inclusion of the Trust’s capital costs in the RAB Aurizon Network does not support this position b Aurizon Network’s insurance obligation for ‘Landholder Infrastructure’ Aurizon Network does not support this position c Aurizon Network required to negotiate a process to address early termination of a SUFA transaction, even if that process would result in a ‘non-material’ disadvantage to Aurizon Network Aurizon Network does not support this position Rental Method The acceptance of the rental calculation methodology under current regulation practices as reasonable Aurizon Network supports this position The development of worked examples of rental calculation and their inclusion in the SUFA documentation Aurizon Network supports this position with a qualification Aurizon Network’s proposed post- regulatory rent objective does not provide certainty over rental cash flows following deregulation Aurizon Network does not support this position SUFA should allow for parties to remain, following deregulation, under the ‘regulated contract’ Aurizon Network supports this position SUFA should allow for linked access agreements to include a schedule setting out access charges in the event that an asset is no longer declared Aurizon Network does not support this position Construction of SUFA Infrastructure The construction process should be based on the principles that SUFA is a financing tool and Aurizon Network should control that process Aurizon Network supports this position As a consequence of these principles, Aurizon Network should provide up-front commitments with respect to scope, standard, cost, time to complete and capacity outcomes Aurizon Network supports this position in respect of scope, standard, cost and time to complete, and does not support it in respect of capacity outcomes Project delivery should be addressed not under the PMA but under the CA and the RCA in the forms that are part of the DD Aurizon Network supports this position, subject to three CA qualifications The CA should adopt a lump-sum price for the delivery of commitments in relation to scope, standard and time-to-complete Aurizon Network supports this position The CA should provide for specified variations and adjustment events as detailed by the QCA Aurizon Network supports this position The Independent Certifier under the CA should undertake many, but not all, of the functions of the superintendent under the pro forma construction contract Aurizon Network supports this position A liquidated damages regime should apply Aurizon Network supports this position, QCA proposal Aurizon Network response in respect of delay in reaching practical completion by the date for practical completion subject to the liquidated damages rates and caps being set in accordance with construction industry market norms The independent certifier should notify Aurizon Network of non-compliances with the CA and Aurizon Network must record these defects on a register and rectify them at its cost Aurizon Network supports this position The pro forma construction contract should not define the level of scope specificity Aurizon Network supports this position Issues regarding the development of an expansion process that ensures SUFA is workable, bankable and credible will be developed as part of the 2014 DAU Aurizon Network supports this position Capacity guarantees and shortfalls are proposed to be addressed as set out in section 5.4.5 of the DD Aurizon Network will provide a full response as part of the 2014 DAU process, and has provided some preliminary comments Pre-approval is proposed to be addressed as set out in section 5.4.6 of the DD Aurizon Network will provide a full response as part of the 2014 DAU process, and has provided some preliminary comments Security and Financeability The 2013 SUFA DAAU documents should be amended to include the Specific Security Agreement to allow for security to be taken over the cash flows Aurizon Network supports this position The Specific Security Agreement acceptable to it is the form of that agreement included in the DD Aurizon Network does not support this position The 2013 SUFA DAAU EISL should be amended to address three specified direction to pay matters Aurizon Network supports this position The direction to pay arrangements acceptable to the QCA is included in the SUFA documents that form part of the DD Aurizon Network supports this position The Trustee’s obligation to withhold distributions if so required by the ordinary unit holder should be removed from the 2013 SUFA DAAU documents Aurizon Network supports this position The rent adjustment mechanism is an acceptable set-off arrangement in relation to rental streams Aurizon Network supports this position Set-off for immaterial non-rental amounts should be excluded from the SUFA documents Aurizon Network does not support this position The EISL should be amended so that there is no set-off for non-rent material liabilities, with PUHs responsible for ‘funding the SUFA infrastructure’s share of any material liability, such as a tax liability’ Aurizon Network does not support this position The EISL should be amended to place an obligation on Aurizon Network to seek a change to the regulatory tariff to account for the amount of ‘liability attributable to the SUFA infrastructure’ Aurizon Network conditionally supports this position Termination The redacted Infrastructure Lease should be disclosed during negotiation of the SUFA agreements subject to conditions Aurizon Network supports this position QCA proposal Aurizon Network response The security should apply to compensation cashflows and detriment amounts due to the Trustee Aurizon Network supports this position Aurizon Network should have uncapped liability for actions in respect of the Infrastructure Lease and the Trustee’s liability is to be limited as detailed by the QCA Aurizon Network does not support this position ‘for breach of the EISL or the EIHL (Infrastructure Lease remains), the party that caused the breach must pay the detriment amount to the other party’, subject to two exceptions Aurizon Network supports this position, subject to clarification of the QCA’s intent Discrimination Consideration for discrimination in respect of asset maintenance (is) to be considered as part of the 2014 DAU process Aurizon Network supports this position The 2013 SUFA DAAU should not place restrictions on who can participate in funding a SUFA arrangement Aurizon Network supports this position, subject to full set-off being adopted Cost-shifting and other discriminatory behaviour (are) to be considered as part of the 2014 DAU process Aurizon Network supports this position Preference Unit Transfers Stapling is not required Aurizon Network supports this position Aurizon Network will be permitted to bid for preference units but should not have a first right of refusal Aurizon Network supports this position Third Party Finance The form of the template TD and the SUHD should be able to be amended to permit third-party finance by negotiation Aurizon Network supports this position The form of the template TD and the SUHD should be able to be amended to permit third-party finance by binding dispute resolution Aurizon Network does not support this position The 2013 SUFA DAAU arrangements should allow for third party financing Aurizon Network conditionally supports this position A Financing Side Deed should be included as one of the SUFA documents Aurizon Network supports this position Taxation The effectiveness of the SUFA documents to enable the Trust to claim tax depreciation must be tested Aurizon Network supports this position Statutory severance is required Aurizon Network supports this position Aurizon Network, the QCA and interested parties (are) to work on a joint submission for an ABA Aurizon Network supports this position, subject to it not being required to share commercially sensitive information Efficiently incurred costs by Aurizon Network in seeking an ABA will be included in its operating costs Aurizon Network supports this position Each party to the SUFA agreements (is to) seek its own PBR Aurizon Network supports this position, subject to its efficiently incurred costs in obtaining its PBR being refunded by the Trust Need for tax indemnity of Aurizon Network is queried Aurizon Network considers a tax indemnity is needed to address its residual tax risks 2010 Access Undertaking Amendments Aurizon Network’s obligation to fund is not a 2013 SUFA DAAU matter Aurizon Network supports this position Aurizon Network should submit a DAAU and related reference tariff at a time to be determined Aurizon Network partially supports this position Capacity shortfalls are to be addressed as See Section 5.2(k) QCA proposal Aurizon Network response set out elsewhere in the DD Potential PUHs should decide whether a project is of a size suitable for SUFA Aurizon Network supports this position The QCA should retain its power to develop its own SUFA and Investment Framework Amendments Aurizon Network does not support this position The recovery of SUFA development costs should be considered if and when Aurizon Network seeks to recover them Aurizon Network supports this position If an Access Seeker and Aurizon Network are in dispute regarding the proposed terms of a user funding agreement, either party may pursue the dispute under UT3 Aurizon Network partially supports this position If an Access Seeker and Aurizon Network are in dispute regarding issues arising under an existing user funding agreement, either party may pursue the dispute under UT3 Aurizon Network does not support this position The QCA is open to discussing ways of improving the dispute resolution process Aurizon Network supports this position The QCA considers it prudent to focus on the expansion process under the 2014 DAU process Aurizon Network supports this position The inclusion of a ‘direction to pay’ feature in the standard access agreement should be considered as part of the 2014 DAU process Aurizon Network supports this position Liability QCA’s risk allocation approach Aurizon Network notes this position Treatment of limitation of liability Aurizon Network supports this position Treatment of consequential loss Aurizon Network partially supports the QCA’s position Exclusion of OPRA from rental calculation methodology Aurizon Network does not support this position Other Issues Form of Aurizon Network’s obligations for the inclusion of the Trust’s capital costs in the RAB Aurizon Network does not support this position Aurizon Network’s insurance obligation for ‘Landholder Infrastructure’ Aurizon Network does not support this position Aurizon Network required to negotiate a process to address early termination of a SUFA transaction, even if that process would result in a ‘non-material’ disadvantage to Aurizon Network Aurizon Network does not support this position Any defined term that is used in this table and is not defined in the DD or the glossary has the meaning given to it in the applicable SUFA document. A SUHD clause 17 The tax indemnity provision does not require the tax indemnifying party to pay interest to compensate the indemnified party for any delay in receiving the amount due to the indemnified party. If Aurizon Network does not receive promptly the amount due to it in respect of its tax loss, it will incur additional (finance) holding costs in respect of that delay. However Aurizon Network has no means of being compensated for these holding costs as there is no ‘interest on overdue payments’ provision that applies in the SUHD to the tax indemnity obligation. However the superseded UA, which contained the tax indemnity as part of the July 2013 suite of SUFA documents, included an ‘interest on overdue payments’ provision. The relocation of the tax indemnity obligation from the UA to the SUHD has not transferred that provision into clause 17 of the SUHD. Clause 17 has been modified to include an ‘interest on overdue payments’ provision. B SUHD clause 17.1(f)(xii) This exclusion from the scope of the tax indemnity includes compensation to which Aurizon Network is entitled. Aurizon Network may never receive compensation to which it is entitled under another Transaction Document, so such an entitlement should not form part of this exclusion. The reference to entitlement to compensation has been deleted from this exclusion.
Appears in 1 contract
Sources: Standard User Funding Agreement
Summary QCA Position Aurizon Network Response. a Form of Aurizon Network’s obligations for the inclusion of the Trust’s capital costs in the RAB Aurizon Network does not support this position b Aurizon Network’s insurance obligation for ‘Landholder Infrastructure’ Aurizon Network does not support this position c Aurizon Network required to negotiate a process to address early termination of a SUFA transaction, even if that process would result in a ‘non-material’ disadvantage to Aurizon Network Aurizon Network does not support this position Rental Method The acceptance of the rental calculation methodology under current regulation practices as reasonable Aurizon Network supports this position The development of worked examples of rental calculation and their inclusion in the SUFA documentation Aurizon Network supports this position with a qualification Aurizon Network’s proposed post- regulatory rent objective does not provide certainty over rental cash flows following deregulation Aurizon Network does not support this position SUFA should allow for parties to remain, following deregulation, under the ‘regulated contract’ Aurizon Network supports this position SUFA should allow for linked access agreements to include a schedule setting out access charges in the event that an asset is no longer declared Aurizon Network does not support this position Construction of SUFA Infrastructure The construction process should be based on the principles that SUFA is a financing tool and Aurizon Network should control that process Aurizon Network supports this position As a consequence of these principles, Aurizon Network should provide up-front commitments with respect to scope, standard, cost, time to complete and capacity outcomes Aurizon Network supports this position in respect of scope, standard, cost and time to complete, and does not support it in respect of capacity outcomes Project delivery should be addressed not under the PMA but under the CA and the RCA in the forms that are part of the DD Aurizon Network supports this position, subject to three CA qualifications The CA should adopt a lump-sum price for the delivery of commitments in relation to scope, standard and time-to-complete Aurizon Network supports this position The CA should provide for specified variations and adjustment events as detailed by the QCA Aurizon Network supports this position The Independent Certifier under the CA should undertake many, but not all, of the functions of the superintendent under the pro forma construction contract Aurizon Network supports this position A liquidated damages regime should apply Aurizon Network supports this position, QCA proposal Aurizon Network response in respect of delay in reaching practical completion by the date for practical completion subject to the liquidated damages rates and caps being set in accordance with construction industry market norms The independent certifier should notify Aurizon Network of non-compliances with the CA and Aurizon Network must record these defects on a register and rectify them at its cost Aurizon Network supports this position The pro forma construction contract should not define the level of scope specificity Aurizon Network supports this position Issues regarding the development of an expansion process that ensures SUFA is workable, bankable and credible will be developed as part of the 2014 DAU Aurizon Network supports this position Capacity guarantees and shortfalls are proposed to be addressed as set out in section 5.4.5 of the DD Aurizon Network will provide a full response as part of the 2014 DAU process, and has provided some preliminary comments Pre-approval is proposed to be addressed as set out in section 5.4.6 of the DD Aurizon Network will provide a full response as part of the 2014 DAU process, and has provided some preliminary comments Security and Financeability The 2013 SUFA DAAU documents should be amended to include the Specific Security Agreement to allow for security to be taken over the cash flows Aurizon Network supports this position b The Specific Security Agreement acceptable to it is the form of that agreement included in the DD Aurizon Network does not support this position c The 2013 SUFA DAAU EISL should be amended to address three specified direction to pay matters Aurizon Network supports this position d The direction to pay arrangements acceptable to the QCA is included in the SUFA documents that form part of the DD Aurizon Network supports this position e The Trustee’s obligation to withhold distributions if so required by the ordinary unit holder should be removed from the 2013 SUFA DAAU documents Aurizon Network supports this position f The rent adjustment mechanism is an acceptable set-set- off arrangement in relation to rental streams Aurizon Network supports this position g Set-off for immaterial non-rental amounts should be excluded from the SUFA documents Aurizon Network does not support this position h The EISL should be amended so that there is no set-off for non-rent material liabilities, with PUHs responsible for ‘funding the SUFA infrastructure’s share of any material liability, such as a tax liability’ Aurizon Network does not support this position i The EISL should be amended to place an obligation on Aurizon Network to seek a change to the regulatory tariff to account for the amount of ‘liability attributable to the SUFA infrastructure’ Aurizon Network conditionally supports this position Termination The redacted Infrastructure Lease should be disclosed during negotiation of the SUFA agreements subject to conditions Aurizon Network supports this position QCA proposal Aurizon Network response The security should apply to compensation cashflows and detriment amounts due to the Trustee Aurizon Network supports this position Aurizon Network should have uncapped liability for actions in respect of the Infrastructure Lease and the Trustee’s liability is to be limited as detailed by the QCA Aurizon Network does not support this position ‘for breach of the EISL or the EIHL (Infrastructure Lease remains)43DD, the party that caused the breach must pay the detriment amount to the other party’section 6.4.4, subject to two exceptions Aurizon Network supports this position, subject to clarification of the QCA’s intent Discrimination Consideration for discrimination in respect of asset maintenance (is) to be considered as part of the 2014 DAU process Aurizon Network supports this position The 2013 SUFA DAAU should not place restrictions on who can participate in funding a SUFA arrangement Aurizon Network supports this position, subject to full setSet-off being adopted Cost-shifting and other discriminatory behaviour (are) to be considered as part of the 2014 DAU process Aurizon Network supports this position Preference Unit Transfers Stapling is not required Aurizon Network supports this position Aurizon Network will be permitted to bid for preference units but should not have a first right of refusal Aurizon Network supports this position Third Party Finance The form of the template TD and the SUHD should be able to be amended to permit third-party finance by negotiation Aurizon Network supports this position The form of the template TD and the SUHD should be able to be amended to permit third-party finance by binding dispute resolution Aurizon Network does not support this position The 2013 SUFA DAAU arrangements should allow for third party financing Aurizon Network conditionally supports this position A Financing Side Deed should be included as one of the SUFA documents Aurizon Network supports this position Taxation The effectiveness of the SUFA documents to enable the Trust to claim tax depreciation must be tested Aurizon Network supports this position Statutory severance is required Aurizon Network supports this position Aurizon Network, the QCA and interested parties (are) to work on a joint submission for an ABA Aurizon Network supports this position, subject to it not being required to share commercially sensitive information Efficiently incurred costs by Aurizon Network in seeking an ABA will be included in its operating costs Aurizon Network supports this position Each party to the SUFA agreements (is to) seek its own PBR Aurizon Network supports this position, subject to its efficiently incurred costs in obtaining its PBR being refunded by the Trust Need for tax indemnity of Aurizon Network is queried Aurizon Network considers a tax indemnity is needed to address its residual tax risks 2010 Access Undertaking Amendments Aurizon Network’s obligation to fund is not a 2013 SUFA DAAU matter Aurizon Network supports this position Aurizon Network should submit a DAAU and related reference tariff at a time to be determined Aurizon Network partially supports this position Capacity shortfalls are to be addressed as See Section 5.2(k) QCA proposal Aurizon Network response set out elsewhere in the DD Potential PUHs should decide whether a project is of a size suitable for SUFA Aurizon Network supports this position The QCA should retain its power to develop its own SUFA and Investment Framework Amendments Aurizon Network does not support this position The recovery of SUFA development costs should be considered if and when Aurizon Network seeks to recover them Aurizon Network supports this position If an Access Seeker and Aurizon Network are in dispute regarding the proposed terms of a user funding agreement, either party may pursue the dispute under UT3 Aurizon Network partially supports this position If an Access Seeker and Aurizon Network are in dispute regarding issues arising under an existing user funding agreement, either party may pursue the dispute under UT3 Aurizon Network does not support this position The QCA is open to discussing ways of improving the dispute resolution process Aurizon Network supports this position The QCA considers it prudent to focus on the expansion process under the 2014 DAU process Aurizon Network supports this position The inclusion of a ‘direction to pay’ feature in the standard access agreement should be considered as part of the 2014 DAU process Aurizon Network supports this position Liability QCA’s risk allocation approach Aurizon Network notes this position Treatment of limitation of liability Aurizon Network supports this position Treatment of consequential loss Aurizon Network partially supports the QCA’s position Exclusion of OPRA from rental calculation methodology Aurizon Network does not support this position Other Issues Form of Aurizon Network’s obligations for the inclusion of the Trust’s capital costs in the RAB Aurizon Network does not support this position Aurizon Network’s insurance obligation for ‘Landholder Infrastructure’ Aurizon Network does not support this position Aurizon Network required to negotiate a process to address early termination of a SUFA transaction, even if that process would result in a ‘non-material’ disadvantage to Aurizon Network Aurizon Network does not support this position Any defined term that is used in this table and is not defined in the DD or the glossary has the meaning given to it in the applicable SUFA document. A SUHD clause 17 The tax indemnity provision does not require the tax indemnifying party to pay interest to compensate the indemnified party for any delay in receiving the amount due to the indemnified party. If Aurizon Network does not receive promptly the amount due to it in respect of its tax lossrental material amounts, it will incur additional (finance) holding costs in respect of that delay. However Aurizon Network has no means of being compensated for these holding costs as there is no ‘interest on overdue payments’ provision that applies in the SUHD to the tax indemnity obligation. However the superseded UA, which contained the tax indemnity as part of the July 2013 suite of SUFA documents, included an ‘interest on overdue payments’ provision. The relocation of the tax indemnity obligation from the UA to the SUHD has not transferred that provision into clause 17 of the SUHD. Clause 17 has been modified to include an ‘interest on overdue payments’ provision. B SUHD clause 17.1(f)(xii) This exclusion from the scope of the tax indemnity includes compensation to which Aurizon Network is entitled. Aurizon Network may never receive compensation to which it is entitled under another Transaction Document, so such an entitlement should not form part of this exclusion. The reference to entitlement to compensation has been deleted from this exclusion.5th paragraph
Appears in 1 contract
Sources: Standard User Funding Agreement
Summary QCA Position Aurizon Network Response. a Form of Aurizon Network’s obligations for the inclusion of the Trust’s capital costs in the RAB Aurizon Network does not support this position b Aurizon Network’s insurance obligation for ‘Landholder Infrastructure’ Aurizon Network does not support this position c Aurizon Network required to negotiate a process to address early termination of a SUFA transaction, even if that process would result in a ‘non-material’ disadvantage to Aurizon Network Aurizon Network does not support this position Rental Method The acceptance of the rental calculation methodology under current regulation practices as reasonable Aurizon Network supports this position The development of worked examples of rental calculation and their inclusion in the SUFA documentation Aurizon Network supports this position with a qualification Aurizon Network’s proposed post- regulatory rent objective does not provide certainty over rental cash flows following deregulation Aurizon Network does not support this position SUFA should allow for parties to remain, following deregulation, under the ‘regulated contract’ Aurizon Network supports this position SUFA should allow for linked access agreements to include a schedule setting out access charges in the event that an asset is no longer declared Aurizon Network does not support this position Construction of SUFA Infrastructure The construction process should be based on the principles that SUFA is a financing tool and Aurizon Network should control that process Aurizon Network supports this position b As a consequence of these principles, Aurizon Network should provide up-front commitments with respect to scope, standard, cost, time to complete and capacity outcomes Aurizon Network supports this position in respect of scope, standard, cost and time to complete, and does not support it in respect of capacity outcomes c Project delivery should be addressed not under the PMA but under the CA and the RCA in the forms that are part of the DD Aurizon Network supports this position, subject to three CA qualifications d The CA should adopt a lump-sum price for the delivery of commitments in relation to scope, standard and time-to-complete Aurizon Network supports this position e The CA should provide for specified Aurizon Network supports this position 32DD, section 5.4.6, Treatment of contingency funding for adjustment and variation events, pages 44 - 45 QCA Position Aurizon Network Response variations and adjustment events as detailed by the QCA Aurizon Network supports this position f The Independent Certifier under the CA should undertake many, but not all, of the functions of the superintendent under the pro forma construction contract Aurizon Network supports this position position
g A liquidated damages regime should apply Aurizon Network supports this position, QCA proposal Aurizon Network response in respect of delay in reaching practical completion by the date for practical completion Aurizon Network supports this position, subject to the liquidated damages rates and caps being set in accordance with construction industry market norms h The independent certifier should notify Aurizon Network of non-compliances with the CA and Aurizon Network must record these defects on a register and rectify them at its cost Aurizon Network supports this position i The pro forma construction contract should not define the level of scope specificity Aurizon Network supports this position j Issues regarding the development of an expansion process that ensures SUFA is workable, bankable and credible will be developed as part of the 2014 DAU Aurizon Network supports this position k Capacity guarantees and shortfalls are proposed to be addressed as set out in section 5.4.5 of the DD Aurizon Network will provide a full response as part of the 2014 DAU process, and has provided some preliminary comments l Pre-approval is proposed to be addressed as set out in section 5.4.6 of the DD Aurizon Network will provide a full response as part of the 2014 DAU process, and has provided some preliminary comments Security and Financeability The 2013 SUFA DAAU documents should be amended to include the Specific Security Agreement to allow for security to be taken over the cash flows Aurizon Network supports this position The Specific Security Agreement acceptable to it is the form of that agreement included in the DD Aurizon Network does not support this position The 2013 SUFA DAAU EISL should be amended to address three specified direction to pay matters Aurizon Network supports this position The direction to pay arrangements acceptable to the QCA is included in the SUFA documents that form part of the DD Aurizon Network supports this position The Trustee’s obligation to withhold distributions if so required by the ordinary unit holder should be removed from the 2013 SUFA DAAU documents Aurizon Network supports this position The rent adjustment mechanism is an acceptable set-off arrangement in relation to rental streams Aurizon Network supports this position Set-off for immaterial non-rental amounts should be excluded from the SUFA documents Aurizon Network does not support this position The EISL should be amended so that there is no set-off for non-rent material liabilities, with PUHs responsible for ‘funding the SUFA infrastructure’s share of any material liability, such as a tax liability’ Aurizon Network does not support this position The EISL should be amended to place an obligation on Aurizon Network to seek a change to the regulatory tariff to account for the amount of ‘liability attributable to the SUFA infrastructure’ Aurizon Network conditionally supports this position Termination The redacted Infrastructure Lease should be disclosed during negotiation of the SUFA agreements subject to conditions Aurizon Network supports this position QCA proposal Aurizon Network response The security should apply to compensation cashflows and detriment amounts due to the Trustee Aurizon Network supports this position Aurizon Network should have uncapped liability for actions in respect of the Infrastructure Lease and the Trustee’s liability is to be limited as detailed by the QCA Aurizon Network does not support this position ‘for breach of the EISL or the EIHL (Infrastructure Lease remains), the party that caused the breach must pay the detriment amount to the other party’, subject to two exceptions Aurizon Network supports this position, subject to clarification of the QCA’s intent Discrimination Consideration for discrimination in respect of asset maintenance (is) to be considered as part of the 2014 DAU process Aurizon Network supports this position The 2013 SUFA DAAU should not place restrictions on who can participate in funding a SUFA arrangement Aurizon Network supports this position, subject to full set-off being adopted Cost-shifting and other discriminatory behaviour (are) to be considered as part of the 2014 DAU process Aurizon Network supports this position Preference Unit Transfers Stapling is not required Aurizon Network supports this position Aurizon Network will be permitted to bid for preference units but should not have a first right of refusal Aurizon Network supports this position Third Party Finance The form of the template TD and the SUHD should be able to be amended to permit third-party finance by negotiation Aurizon Network supports this position The form of the template TD and the SUHD should be able to be amended to permit third-party finance by binding dispute resolution Aurizon Network does not support this position The 2013 SUFA DAAU arrangements should allow for third party financing Aurizon Network conditionally supports this position A Financing Side Deed should be included as one of the SUFA documents Aurizon Network supports this position Taxation The effectiveness of the SUFA documents to enable the Trust to claim tax depreciation must be tested Aurizon Network supports this position Statutory severance is required Aurizon Network supports this position Aurizon Network, the QCA and interested parties (are) to work on a joint submission for an ABA Aurizon Network supports this position, subject to it not being required to share commercially sensitive information Efficiently incurred costs by Aurizon Network in seeking an ABA will be included in its operating costs Aurizon Network supports this position Each party to the SUFA agreements (is to) seek its own PBR Aurizon Network supports this position, subject to its efficiently incurred costs in obtaining its PBR being refunded by the Trust Need for tax indemnity of Aurizon Network is queried Aurizon Network considers a tax indemnity is needed to address its residual tax risks 2010 Access Undertaking Amendments Aurizon Network’s obligation to fund is not a 2013 SUFA DAAU matter Aurizon Network supports this position Aurizon Network should submit a DAAU and related reference tariff at a time to be determined Aurizon Network partially supports this position Capacity shortfalls are to be addressed as See Section 5.2(k) QCA proposal Aurizon Network response set out elsewhere in the DD Potential PUHs should decide whether a project is of a size suitable for SUFA Aurizon Network supports this position The QCA should retain its power to develop its own SUFA and Investment Framework Amendments Aurizon Network does not support this position The recovery of SUFA development costs should be considered if and when Aurizon Network seeks to recover them Aurizon Network supports this position If an Access Seeker and Aurizon Network are in dispute regarding the proposed terms of a user funding agreement, either party may pursue the dispute under UT3 Aurizon Network partially supports this position If an Access Seeker and Aurizon Network are in dispute regarding issues arising under an existing user funding agreement, either party may pursue the dispute under UT3 Aurizon Network does not support this position The QCA is open to discussing ways of improving the dispute resolution process Aurizon Network supports this position The QCA considers it prudent to focus on the expansion process under the 2014 DAU process Aurizon Network supports this position The inclusion of a ‘direction to pay’ feature in the standard access agreement should be considered as part of the 2014 DAU process Aurizon Network supports this position Liability QCA’s risk allocation approach Aurizon Network notes this position Treatment of limitation of liability Aurizon Network supports this position Treatment of consequential loss Aurizon Network partially supports the QCA’s position Exclusion of OPRA from rental calculation methodology Aurizon Network does not support this position Other Issues Form of Aurizon Network’s obligations for the inclusion of the Trust’s capital costs in the RAB Aurizon Network does not support this position Aurizon Network’s insurance obligation for ‘Landholder Infrastructure’ Aurizon Network does not support this position Aurizon Network required to negotiate a process to address early termination of a SUFA transaction, even if that process would result in a ‘non-material’ disadvantage to Aurizon Network Aurizon Network does not support this position Any defined term that is used in this table and is not defined in the DD or the glossary has the meaning given to it in the applicable SUFA document. A SUHD clause 17 The tax indemnity provision does not require the tax indemnifying party to pay interest to compensate the indemnified party for any delay in receiving the amount due to the indemnified party. If Aurizon Network does not receive promptly the amount due to it in respect of its tax loss, it will incur additional (finance) holding costs in respect of that delay. However Aurizon Network has no means of being compensated for these holding costs as there is no ‘interest on overdue payments’ provision that applies in the SUHD to the tax indemnity obligation. However the superseded UA, which contained the tax indemnity as part of the July 2013 suite of SUFA documents, included an ‘interest on overdue payments’ provision. The relocation of the tax indemnity obligation from the UA to the SUHD has not transferred that provision into clause 17 of the SUHD. Clause 17 has been modified to include an ‘interest on overdue payments’ provision. B SUHD clause 17.1(f)(xii) This exclusion from the scope of the tax indemnity includes compensation to which Aurizon Network is entitled. Aurizon Network may never receive compensation to which it is entitled under another Transaction Document, so such an entitlement should not form part of this exclusion. The reference to entitlement to compensation has been deleted from this exclusion.comments
Appears in 1 contract
Sources: Standard User Funding Agreement