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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
TWEED RIVER ENTRANCE
SAND BYPASSING PROJECT
AGREEMENT BILL 1997
Queensland
TWEED RIVER ENTRANCE SAND
BYPASSING PROJECT AGREEMENT
BILL 1997
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3 Act applies to all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4 Purpose of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
PART 2--RATIFYING AND IMPLEMENTING THE
AGREEMENTS
5 Ratification of agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6 Implementation of agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7 No injunctive relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PART 3--MISCELLANEOUS
8 Minister's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9 Financial contribution by Gold Coast City Council . . . . . . . . . . . . . . . . . . . 6
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 7
DEED OF AGREEMENT
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 66
HEADS OF AGREEMENT
1997
A BILL
FOR
An Act to provide for the carrying out of agreements between
Queensland and New South Wales for a project to bypass sand
around the entrance of the Tweed River for the benefit of
southern Gold Coast beaches and to improve the navigability of
the entrance
s1 4 s4
Tweed River Entrance Sand Bypassing Project
Agreement
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
title 3
Short
1. This Act may be cited as the Tweed River Entrance Sand Bypassing 4
Project Agreement Act 1997. 5
6
Definitions
2. In this Act-- 7
"agreements" means the agreements contained in the heads of agreement 8
and the deed of agreement. 9
"deed of agreement" means the deed of agreement made on 2 March 10
1995, as amended by a deed of further agreement made on 11
16 September 1997, a copy of which is in schedule 1. 12
"heads of agreement" means the heads of agreement made on 31 March 13
1994, a copy of which is in schedule 2. 14
"project" means the Tweed River Entrance Sand Bypassing Project to be 15
carried out under the agreements. 16
applies to all persons 17
Act
3. This Act applies to all persons including the State and, so far as the 18
legislative power of the State permits, the Commonwealth and the other 19
States. 20
of Act 21
Purpose
4.(1) The purpose of this Act is to provide for the carrying out of the 22
agreements. 23
(2) The agreements provide for a sand bypassing project to improve and 24
s5 5 s8
Tweed River Entrance Sand Bypassing Project
Agreement
continuously maintain-- 1
(a) the amenity of the southern Gold Coast beaches; and 2
(b) the navigability of the Tweed River entrance. 3
ART 2--RATIFYING AND IMPLEMENTING THE 4
P
AGREEMENTS 5
of agreements 6
Ratification
5. The agreements are ratified.1 7
of agreements 8
Implementation
6. The agreements may be carried into effect despite the provisions of 9
any other Act or law. 10
injunctive relief 11
No
7. A person may not bring a proceeding for an injunction arising from an 12
act done, or omission made, in connection with carrying out the project. 13
ART 3--MISCELLANEOUS 14
P
powers 15
Minister's
8. To remove any doubt, it is declared that the Minister's powers to enter 16
1 See the deed of agreement, clause 6.1.
s9 6 s9
Tweed River Entrance Sand Bypassing Project
Agreement
into a contract or carry out a commercial activity include powers to do so on 1
behalf of New South Wales or as a joint party.2 2
contribution by Gold Coast City Council 3
Financial
9.(1) The Gold Coast City Council is liable to pay one-half of the State's 4
share of the shared project costs. 5
(2) The council must pay an amount for which it is liable under 6
subsection (1) in the way, and at the time, required by the chief executive by 7
written notice. 8
9
2 For provisions about the State's powers generally, see the Acts Interpretation Act
1954, part 12 (The Executive Government of the State).
7
Tweed River Entrance Sand Bypassing Project
Agreement
CHEDULE 1 1
¡S
EED OF AGREEMENT 2
D
section 2, definition "deed of agreement" 3
TWEED RIVER ENTRANCE SAND BYPASSING 4
PROJECT AGREEMENT 5
THIS DEED OF AGREEMENT is made on SECOND day of MARCH 6
1995. 7
B E T W E E N: THE STATE OF NEW SOUTH WALES ("NSW") 8
A N D: THE STATE OF QUEENSLAND ("Queensland") 9
RECITALS 10
W H E R E A S: 11
A NSW and Queensland have agreed to the implementation of a project 12
to be known as the Tweed River Entrance Sand Bypassing Project. 13
B The purpose of this Agreement is to enhance and maintain the 14
attributes of the Gold Coast--Tweed Heads region and more 15
specifically the Tweed River estuary and the southern Gold Coast 16
beaches and to achieve the respective objectives of the Parties. NSW's 17
objective is "to establish and maintain a navigable depth of water of at 18
least 3.5 metres below Indian Spring Low Water (ISLW) in the 19
approach to and within the entrance channel to the Tweed River over a 20
width equal to that between the rubble mound breakwaters" and 21
Queensland's objective is "to achieve a continuing supply of sand to 22
the Southern Gold Coast beaches at a rate consistent with the natural 23
littoral drift rates updrift and downdrift, together with the supply of 24
such additional sand to the beaches as is required to restore the 25
recreational amenity of the beaches and to maintain it". The intention 26
is to achieve the objectives in perpetuity. 27
8
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
C The Parties have agreed to implement the Project jointly and in a spirit 1
of goodwill and cooperation. For that purpose they propose to enter 2
into all necessary contracts contemplated by this Agreement as Joint 3
Principals. 4
D The Parties have further agreed that NSW will for practical reasons 5
and given the need to commence the Project expeditiously let the 6
contracts for the Initial Dredging Component and either State may be 7
authorised to let other contracts in its own name on behalf of both 8
Parties as exceptions to the intention that all contracts be entered into 9
by them as Joint Principals. 10
E The Parties acknowledge that the Artificial Sand Bypassing System 11
will need to be replaced from time to time and have agreed to do all 12
necessary cooperative acts to ensure that any replacement system will 13
be established and operated in such a way as to fulfil the purpose of 14
this Agreement. 15
NOW IT IS AGREED AS FOLLOWS-- 16
PART I--INTERPRETATION 17
1. PURPOSE 18
The purpose of this Agreement is as set out in the Recitals. 19
2. DEFINITIONS 20
In this Agreement-- 21
"Additional Works" means the works which the Ministerial Council 22
agrees to include as part of the Project pursuant to clause 11. 23
"Adjustment Formula" means the relevant monetary amount being 24
adjusted by being divided by the Consumer Price Index (All groups) 25
last published by the Australian Bureau of Statistics at the date of 26
signing of this Deed and multiplied by the Consumer Price Index last 27
9
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
published at the date of notification of the relevant default, dispute or 1
other matter to which a monetary amount applies. If the Consumer 2
Price Index ceases to be published a replacement index shall be agreed 3
on in writing by the Parties and in default of agreement for a period of 4
fourteen (14) days the index may be determined at the request of either 5
Party by the President or Acting President of the New South Wales 6
Division of the Australian Institute of Valuers or his nominee. 7
"Anniversary Date" means the 30th day of September each year or such 8
other date as may be agreed by the Parties, commencing on the first 9
30th day of September following the commissioning of the First 10
System or an Interim System. 11
"Annual Period" means a period of one year, or part thereof for the first 12
Annual Period, following the commissioning of the First System or an 13
Interim System, concluding on an Anniversary Date. 14
"Artificial Sand Bypassing System" or "System" means the works as 15
described in the Heads of Agreement to be established pursuant to this 16
Agreement for the hydraulic or mechanical movement of sand in 17
perpetuity from within the Tweed River Bar and Entrance Area on the 18
updrift side to the Beaches on the downdrift side of the Tweed River 19
entrance other than by natural processes and includes all necessary 20
preliminary and ancillary activities, any interim works that the Parties 21
agree to establish for that purpose and any replacement of the works 22
which may be necessary from time to time to meet the purpose of this 23
Agreement but does not include any works associated with the Initial 24
Dredging Component. 25
"Beaches" means, for the purpose of the Initial Dredging Component, the 26
area identified on the map shown in Schedule 1 and means, for the 27
purpose of the System, Duranbah Beach, Snapper Rocks and Kirra 28
Point or in their vicinity. 29
"Cash Flow Period" means the period of one month, or such other period 30
as may be agreed by the Parties for the purpose of clause 14. 31
"Clear Navigation Channel" means a navigation channel which has a 32
depth below Indian Spring Low Water (ISLW) of at least 3.5 metres 33
over a width of 70 metres and extending from an upriver limit defined 34
10
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
by the upriver boundary of the Tweed River Bar and Entrance Area 1
shown in Schedule 2 to the open sea or such other parameters as may 2
be agreed in writing between the Parties. 3
"Consultation Actions" mean the actions listed in column 1 of the table in 4
clause 10.5. 5
"Contract Management" means the functions and activities referred to in 6
clause 8.3.1(b). 7
"Contract Quantity" means the cumulative quantity of sand which is to 8
be delivered by any Anniversary Date in accordance with clause 12 or 9
as otherwise agreed in writing by the Parties. 10
"Contracting State" means a Party who carries out or pays for work 11
which is a Shared Project Cost. 12
"Coordinating State" means the Party specified in clause 8.6.2 and as 13
varied from time to time pursuant to clause 10.11.2, as the Party 14
representing both Parties for the purposes set out in clause 8.6. 15
"First System" means the first Artificial Sand Bypassing System 16
established under this Agreement which is assessed by the Parties 17
before accepting tenders as being capable of operating for a period of 18
approximately 25 years and does not mean any Interim System unless 19
the Parties expressly agree in writing that an Interim System is to be 20
considered as the First System. The assessment of the Parties shall be 21
based upon best available practices and best available data. 22
"Government Agency" means: 23
(a) a department or administrative office of the government of either 24
Party, or of the Commonwealth of Australia; 25
(b) a statutory body representing the Crown in right of either Party or 26
the Commonwealth of Australia; 27
(c) a local government body in NSW or Queensland; or 28
(d) any other public authority which is agreed in writing by the 29
Parties to be a Government Agency for the purposes of this 30
Agreement. 31
11
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
"Heads of Agreement" means the Heads of Agreement between the State 1
of NSW and the State of Queensland relating to the Tweed River 2
Entrance Sand Bypassing Project executed by the Premier of NSW 3
and the Premier of Queensland on 31st March 1994. 4
"Initial Dredging Component" or "Initial Dredging and Sand Supply 5
Component" means the dredging of two (2) million cubic metres of 6
sand from the Tweed River Bar and Entrance Area and the deposit 7
thereof on the Beaches and includes all necessary preliminary and 8
ancillary activities. 9
"Intellectual Property" includes copyright, patent rights, design rights, 10
eligible layout rights, rights of confidentiality and trade or business 11
secrets and the rights to registration or proprietorship of such rights. 12
"Interim System" means an Artificial Sand Bypassing System which the 13
Parties agree under clause 10.4 to establish prior to the establishment 14
of the First System and which is intended by the Parties to operate for 15
a period of less than 25 years. 16
"Joint Consultants' Report" means the report entitled "Tweed River 17
Entrance--NSW/Qld Sand Transfer Negotiation" by WBM Pty 18
Limited, The University of Queensland and Australian Water and 19
Coastal Studies Pty Limited dated May 1991. 20
"Joint Principals" means both Parties or one nominee of each Party for 21
the purpose of the execution of contracts contemplated by this 22
Agreement to be let jointly by both Parties. 23
"Joint Principals' Representative" means the person described in 24
clause 8.8. 25
"Latest Commencement Date" means the date specified in clause 9.3, as 26
adjusted pursuant to this Agreement, after which Queensland may give 27
notice that it intends to let contracts for the Initial Dredging 28
Component. 29
"Long Term Average" means the long term average annual net littoral 30
transport of sand that would, in the absence of any artificial actions to 31
influence it, cross a line perpendicular to the coastline, situated one 32
kilometre south of the southern training wall at the Tweed River 33
12
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
entrance and extending to the 20 metre depth contour, less the annual 1
net quantity of sand which, after the commissioning of the System, 2
crosses that line and reaches Queensland, or the coastal waters of the 3
State of Queensland as defined in the Coastal Waters (State Powers) 4
Act, 1980 (Cth), by natural means. 5
"Ministerial Council" means the NSW Minister for Public Works and the 6
Queensland Minister for Environment and Heritage or their nominees. 7
"Original Project Material" means all sketches, plans, drawings, 8
specifications, estimates, designs, calculations, data, information, 9
computer programs, reports, models or other documents or tangible 10
materials produced in the course of the Project or in relation to any 11
activity connected with the Project. 12
"Partnering Document" means the "Partnering Guidelines" (ISBN 13
0 7310 0989 4) of the New South Wales Capital Works Procurement 14
Manual dated October 1993 (ISBN 0 7310 0964 9) or any amendment 15
or substitution to those guidelines approved by both Parties for the 16
purpose of this Agreement. 17
"Process" means the expert determination process as set out in clause 17.4. 18
"Project" means the Tweed River Entrance Sand Bypassing Project which 19
comprises two inter-related components namely: 20
(a) the Initial Dredging Component; and 21
(b) the System. 22
Without limitation of the above, the Project includes: 23
(i) the items described in the Heads of Agreement as being part of 24
the Project; and 25
(ii) the Additional Works. 26
"Project Directors" means the persons described in clause 8.4. 27
"Project Management" means the functions and activities referred to in 28
clause 8.3.1(a). 29
"Project Manager" means the person described in clause 8.9. 30
13
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
"Reviewing State" means the Party which is not the Coordinating State. 1
"Sand" means clean natural sand of an equivalent quality to that which 2
exists in the natural littoral system arriving at the northern portion of 3
Letitia Spit and includes that supplied to the bar by the natural fluvial 4
system. 5
"Shared Project Cost" means an item of work, the costs of which are to 6
be shared by the Parties on a percentage basis as specified in this 7
Agreement. Without limitation of the above, all works falling within 8
the definition of the Project in this clause 2 shall be Shared Project 9
Costs. 10
"System" means the same as "Artificial Sand Bypassing System". 11
"Target Action" means an action listed in Column 1 of the table in 12
clause 10.3. 13
"Target Date" means a date listed in Column 2 of the table in clause 10.3 14
as amended by clause 10.4 or clause 10.6. 15
"Tweed River Bar and Entrance Area" means the area identified on the 16
map shown in Schedule 2. 17
"Working Group" means the Working Group established under the 18
Heads of Agreement. 19
3. INTERPRETATION 20
3.1 In this Agreement, 21
(a) a reference to any Act includes any Act amending, or in 22
substitution for, that Act; 23
(b) a reference to this Agreement includes a reference to: 24
(i) the Schedules to this Agreement; and 25
(ii) any amendment of or addition to this Agreement or the 26
Schedules hereto; 27
(c) words importing the singular include the plural and vice 28
versa; 29
14
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
(d) words importing any gender include any other gender; 1
(e) "person" includes a corporation; and 2
(f) all monetary amounts are expressed in Australian currency 3
and shall be adjusted from time to time by the application of 4
the Adjustment Formula. 5
3.2 In interpreting a provision of this Agreement, a construction that 6
would promote the purpose or object underlying the Agreement 7
(whether or not that purpose or object is expressly stated in the 8
Agreement) shall be preferred to a construction that would not 9
promote that purpose or object. 10
PART II--LEGAL RELATIONS AND RATIFICATION 11
4. LEGAL RELATIONS 12
The Parties acknowledge and agree that this Agreement is intended to 13
be legally binding and enforceable by the Parties. 14
5. COMMENCEMENT AND TERM 15
This Agreement shall commence on the date first set out above and 16
shall continue in force until lawfully determined. 17
6. RATIFICATION AND SUBMISSION TO PARLIAMENT 18
6.1 Each Party shall promptly take every practicable step to have this 19
Agreement ratified by its Parliament. 20
6.2 Each Party, so far as its jurisdiction extends and so far as it may 21
be necessary, shall provide for or secure the execution and 22
enforcement of the provisions of this Agreement and any Acts 23
ratifying it. 24
15
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
6.3 If either Party is unable to secure ratification of this Agreement 1
because any provision is unacceptable to its Parliament, the 2
Parties shall negotiate in good faith to achieve a solution, 3
including by amendment of this Agreement, which promotes the 4
purpose of this Agreement. 5
PART III--THE PROJECT 6
7. PARTNERING 7
The Parties recognise the benefits of partnering as described in the 8
Partnering Document and will endeavour to follow the principles 9
outlined in that document in relation to the conduct of this Agreement 10
and any contract let by the Joint Principals or by either Party under this 11
Agreement provided that: 12
(i) each Party shall be a "stakeholder" for the purposes of the 13
partnering process in any contract let by either Party for the 14
purposes of this Agreement; and 15
(ii) to the extent of any inconsistency between the provisions of the 16
Partnering Document and this Agreement, the provisions of this 17
Agreement shall prevail. 18
8. PROJECT IMPLEMENTATION 19
8.1 Joint Principals 20
8.1.1 Subject to this Agreement, all necessary contracts for the 21
implementation of the Project shall be let jointly by the 22
Parties as Joint Principals and executed in a manner 23
deemed appropriate by each. It is intended by the Parties 24
that such contracts will be let in the names of the NSW 25
Minister for Public Works and the State of Queensland. 26
8.1.2 Notwithstanding clause 8.1.1, either Party may enter any 27
16
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
contract for the Project in its own name, or in the name of 1
its nominee, as the representative of both Parties, subject to 2
a determination by the Working Group that it is appropriate 3
for the contract to be entered in that way. 4
8.1.3 Subject to compliance by both Parties with their obligations 5
to consult with the other Party, any monetary liability 6
incurred by either Party in the course of the performance of 7
the Project for breach of contract, in tort (excluding a 8
liability incurred by reason solely of the negligence of that 9
Party), or other common law or statutory cause of action, 10
whether arising out of or in relation to a contract entered as 11
Joint Principals, a contract entered into by either Party as 12
representative of both Parties or otherwise, shall for the 13
purpose of sharing costs for the Project be included as part 14
of the final actual costs of the applicable item of work. 15
For the purpose of this clause 8.1.3, a liability is not 16
incurred solely by reason of the negligence of one Party if it 17
arises out of the implementation of a course of action 18
approved by both Parties in accordance with this 19
Agreement or deemed under clause 8.7.7 to be so 20
approved, in a manner which is within the scope of such 21
approval. 22
8.2 Project Risk Assessment 23
8.2.1 Each Party will be responsible for making its own 24
assessment of Project risks for discussion with the other 25
Party through the Project Directors or within the Working 26
Group. 27
8.2.2 Without limiting any other obligation under this 28
Agreement, where specific problems arise in relation to the 29
implementation of any aspect of the Project both Parties 30
undertake to cooperate fully in order to achieve a solution 31
which promotes the purpose of this Agreement. 32
17
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
8.3 Management 1
8.3.1 The Parties acknowledge that for the purpose of defining 2
responsibility in the implementation of the Project two 3
separate but related lines of activity must be undertaken. 4
These are Project Management and Contract Management. 5
(a) Project Management is the joint responsibility of the 6
Parties working through the Project Directors and the 7
Working Group. It is an over-arching function which 8
involves the coordination, forward planning and review 9
of all elements of the Project including funding, 10
development of a master plan and timetable, securing 11
statutory approvals, public relations, identification of 12
the needs of the Parties and resolution of any 13
differences or inconsistencies between the needs of 14
each Party. When the Project reaches the construction 15
and the subsequent operational stage the dominant 16
Project Management function is the ongoing review of 17
progress. 18
(b) Contract Management is the responsibility of the 19
Coordinating State. It involves the management of the 20
interface between the Parties and the contractor(s) for 21
the performance of any work in implementing the 22
Project and includes the day to day administration of 23
contracts in accordance with any risk management 24
strategy which the Parties agree to apply. 25
8.3.2 In order to implement the Project: 26
(a) NSW may use the officers and resources of NSW 27
Public Works or other Government Agency and may 28
authorise any person including any Project Manager 29
appointed under this Agreement to act on its behalf; and 30
(b) Queensland may use the officers and resources of the 31
Queensland Department of Environment and Heritage 32
or other Government Agency and may authorise any 33
person including any Project Manager appointed under 34
18
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
this Agreement to act on its behalf. 1
8.4 Project Directors 2
8.4.1 Each Party will appoint a Project Director whose primary 3
function is the representation and promotion of the 4
respective Party's interests. 5
8.4.2 The Project Directors shall be members of the Working 6
Group. 7
8.4.3 Details of the Project Directors' responsibilities are set out 8
in Schedule 3. 9
8.5 Working Group 10
8.5.1 The Working Group shall provide a forum for liaison 11
between the Parties and shall be responsible for 12
implementation of the Project on behalf of the Parties 13
including: 14
(a) strategic action planning (including risk management); 15
(b) financial control; 16
(c) policy setting; and 17
(d) review at State Government level including review of 18
project parameters. 19
8.5.2 The Working Group shall: 20
(a) report to the Ministerial Council through the Project 21
Directors; 22
(b) promote close liaison and cooperation between the 23
Parties; and 24
(c) provide guidance to the Coordinating State on strategic 25
planning aspects of the Project which impact on 26
contract development or management (an example of 27
such a strategic planning aspect would be whether to 28
place sand at a particular location at a particular time). 29
8.5.3 Decisions of the Working Group for the purpose of this 30
19
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
Agreement, including decisions or determinations pursuant 1
to clause 17.2, shall be by majority provided that such 2
majority includes both Project Directors. 3
8.6 Coordinating State 4
8.6.1 One of the Parties shall be the Coordinating State which 5
shall be the representative of both Parties for the purpose of 6
implementing any aspect of the Project which is to be 7
performed by way of contracts entered into by the Parties 8
as Joint Principals. 9
8.6.2 Subject to this Agreement NSW shall be the Coordinating 10
State. 11
8.6.3 The Coordinating State shall have the powers and functions 12
expressly conferred by this Agreement and such other 13
ancillary and incidental powers and functions as are 14
necessary for the effective implementation of the Project 15
but excluding the power to execute any contract on behalf 16
of the Reviewing State unless expressly authorised in 17
writing by the Reviewing State to do so. 18
8.6.4 The Coordinating State shall have the following functions 19
for the purpose of managing the investigation, design, 20
construction, commissioning, operation, maintenance and 21
replacement from time to time of the System: 22
(a) environmental impact assessment; 23
(b) developing contracts; 24
(c) the tender process; 25
(d) the development of designs, including benchmark 26
designs for the System; 27
(e) technical issues; 28
(f) monitoring and auditing in accordance with 29
clause 8.10.1; 30
(g) the engagement of consultants; 31
20
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
(h) Contract Management; 1
(i) financial reporting, scheduling reporting, services for 2
the Working Group, public information and 3
administration; 4
(j) entering into contracts in its own name as the 5
representative of both Parties, in accordance with 6
clause 8.1.2; and 7
(k) any other functions delegated by the Parties from time 8
to time. 9
8.7 Consultation 10
8.7.1 In the performance of its functions, the Coordinating State 11
shall consult fully and openly with the Reviewing State on 12
all matters including risk management. This consultation 13
shall take place through the Project Directors or, if referred 14
by either Project Director, through the Working Group and 15
shall continue during the implementation and operation of 16
the Project. 17
8.7.2 Without limiting any obligation of the Coordinating State 18
under this Agreement to consult with the Reviewing State 19
the Parties acknowledge and agree that the Reviewing State 20
will have input through its Project Director to all risk 21
management decisions by the Coordinating State, including 22
the following: 23
(a) choice of procurement and contractual options; 24
(b) decisions relating to the engagement of a Project 25
Manager and the functions to be exercised by any 26
Project Manager; 27
(c) the engagement of consultants; and 28
(d) evaluation of tenders. 29
8.7.3 Where the Reviewing State does not agree with: 30
(a) any assessment of risk made by the Coordinating State; 31
21
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
or 1
(b) any action proposed by the Coordinating State for the 2
management of any risk including the activities listed in 3
clause 8.7.4 4
the Reviewing State may refer the matter to the Working 5
Group or, at its sole discretion, to the Ministerial Council 6
for determination. A matter may be referred to the 7
Ministerial Council whether or not it has previously been 8
referred to the Working Group and whether or not the 9
Working Group has made a determination and in such case 10
the determination of the Ministerial Council shall prevail. 11
The Coordinating State will not proceed with any proposed 12
action while a determination referred to in this clause is 13
pending with respect to that action. 14
8.7.4 In managing any contract which has been awarded 15
pursuant to this Agreement, the Coordinating State shall 16
apply the risk management strategy determined in 17
accordance with this clause 8, but shall ensure consultation 18
with the Reviewing State prior to any action to implement 19
that strategy, including consultation and notification of any 20
action proposed in relation to: 21
(a) valuations and progress payments; 22
(b) contractual variations; 23
(c) extensions of time for practical completion of contracts; 24
(d) audit procedures; and 25
(e) resolution of contractual disputes. 26
8.7.5 Where a matter referred to in clause 8.7.4 involves: 27
(a) a monetary amount for each event of less than $10,000; 28
or 29
(b) a claim for an extension of time of less than four 30
weeks, 31
22
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
the Reviewing State shall notify its approval or otherwise to 1
the action proposed by the Coordinating State within 7 days 2
of receiving notice of such proposal. The Parties may 3
agree in writing to vary the monetary amount and the 4
number of weeks in sub-clauses (a) and (b) of this 5
clause 8.7.5. 6
8.7.6 If the Reviewing State does not notify the Coordinating 7
State of its approval or otherwise to any action referred to 8
in clause 8.7.5 within the time referred to in that clause, the 9
Coordinating State may assume approval and proceed to 10
implement the proposed action. 11
8.7.7 The Reviewing State may notify the Coordinating State in 12
writing that the concurrence of the Reviewing State may be 13
assumed with respect to any matter or any class of matters 14
on such conditions, if any, as may be specified in the notice 15
and any action taken by the Coordinating State in 16
accordance with such notice will be valid and effective 17
under this Agreement as if prior consultation had taken 18
place with the Reviewing State. 19
8.7.8 If the Coordinating State takes any action under this 20
Agreement without consulting the Reviewing State as 21
required by this clause 8.7 or by any other provision of this 22
Agreement: 23
(a) the Coordinating State shall indemnify and keep 24
indemnified the Reviewing State against any liability, 25
loss or damage whatsoever which results from such 26
action except to the extent that clause 19.4 applies to the 27
default to exclude clause 19.2; and 28
(b) notwithstanding any other provision of this Agreement, 29
the Reviewing State may proceed under clause 19. 30
8.8 Joint Principals' Representative 31
8.8.1 The Coordinating State may: 32
(a) from time to time appoint a Joint Principals' 33
23
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
Representative subject to the written consent of the 1
Reviewing State, which consent shall not unreasonably 2
be withheld; and 3
(b) delegate to the Joint Principals' Representative any 4
power or function with respect to Contract 5
Management which the Coordinating State may 6
exercise pursuant to this Agreement. 7
8.8.2 In exercising any power or function delegated by the 8
Coordinating State under this Agreement, the Joint 9
Principals' Representative shall be subject to the same 10
obligations as the Coordinating State including the 11
obligations of consultation with the Reviewing State. 12
8.8.3 The person appointed as the Joint Principals' 13
Representative shall hold office until that person's 14
appointment is revoked or until the Party which appointed 15
the Joint Principals' Representative ceases to be the 16
Coordinating State. 17
8.8.4 Any decision by the Joint Principals' Representative within 18
the delegated authority under clause 8.8.1 shall be binding 19
on both Parties. 20
8.9 Project Manager 21
The Coordinating State may appoint a Project Manager to assist 22
in delivery of the Project and may delegate to the person 23
appointed day to day responsibilities in relation to Contract 24
Management. 25
Any appointment or delegation under this clause is subject to: 26
(a) in the case of an appointment, prior consultation with the 27
Working Group and prior consent of the Reviewing State, 28
which consent shall not unreasonably be withheld; and 29
(b) in the case of a delegation, prior consent of the Reviewing 30
State to the scope of the functions to be delegated, which 31
consent shall not unreasonably be withheld. 32
24
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
8.10 Monitoring 1
8.10.1 The Coordinating State shall: 2
(a) monitor the performance of contractors in relation to 3
any contracts entered into in respect of the Project; 4
(b) monitor the performance of the obligations created 5
under this Agreement; 6
(c) carry out such other environmental monitoring as is 7
reasonably required; and 8
(d) carry out any other monitoring required by statute in 9
NSW or Queensland. 10
8.10.2 The work associated with monitoring, including 11
reasonable administrative costs, shall be a Shared Project 12
Cost. 13
8.10.3 The Coordinating State shall report to the Working Group 14
and the Reviewing State on such monitoring annually or 15
more frequently as the Parties may agree from time to 16
time having regard to the nature and duration of the 17
contract, obligation or type of monitoring. 18
8.10.4 The Reviewing State may obtain an independent audit of 19
monitoring provided that an independent audit shall be at 20
the expense of the Reviewing State unless the audit 21
reveals a substantial failure in the monitoring in which 22
case it shall be a Shared Project Cost. 23
8.11 Cost Optimisation 24
The Parties will give consideration to optimising Project costs 25
when implementing the Project. 26
9. THE INITIAL DREDGING COMPONENT 27
9.1 As an exception to clause 8.1.1, but subject to clause 9.6, NSW 28
shall let the contract(s) for the Initial Dredging Component in its 29
own name or in the name of the NSW Minister for Public Works 30
25
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
as the representative of both Parties and shall have such powers 1
and functions as are necessary to ensure the effective 2
implementation of the Initial Dredging Component, including the 3
functions of the types listed in clause 8.6.4(a), (b), (c), (e), (g), 4
(h), (j) and (k) as these types apply to the Initial Dredging 5
Component. 6
9.2 Clause 8.7 shall apply to the Initial Dredging Component and for 7
that purpose any reference to the Coordinating State shall be read 8
as a reference to the Party undertaking the Initial Dredging 9
Component and any reference to the Reviewing State is a 10
reference to the other Party. 11
9.3 NSW will use its best endeavours to let the contract for the Initial 12
Dredging Component by 21 March, 1995 but failure to let the 13
contract by that date shall not be a default under this Agreement. 14
Subject to clause 9.5, the Latest Commencement Date is 30 June, 15
1995 and the Parties will use their best endeavours to complete 16
the Initial Dredging Component by 30 September, 1997, 17
including the completion of the first phase by 31 December, 18
1995. 19
9.4 To allow NSW to perform its obligations under this clause 9, 20
Queensland undertakes to use its best endeavours to achieve the 21
actions set out in column 1 of the following table and to achieve 22
those actions by the times set out in column 2. 23
TABLE 24
Column 1 Column 2 25
ACTION TIME
(i) Comments on each draft Within one week of receiving 26
environmental impact statement the draft EIS 27
("EIS")
(ii) Written agreement to the Within one week of receiving 28
advertising of EIS the final draft EIS
26
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
(iii) A review of the submissions on Within one week of receiving 1
the EIS the submissions
(iv) All approvals necessary for the Within forty (40) days of the 2
initial dredging end of the exhibition period of
the EIS
9.5 If there is a delay in complying with any requirement of the items 3
(i) to (iv) in the table in clause 9.4, the Latest Commencement 4
Date shall be adjusted by a period equivalent to twice the period 5
by which Queensland is delayed in complying with any such 6
requirement, except in the case of a delay in (iv) which is due to 7
the need for additional work on the environmental impact 8
statement in which case the Latest Commencement Date will be 9
adjusted by the period of such delay. 10
9.6 If NSW does not let contracts for the Initial Dredging Component 11
by the Latest Commencement Date, Queensland may notify 12
NSW in writing that Queensland intends to undertake the Initial 13
Dredging Component and if NSW has not let the first contract for 14
the Initial Dredging Component within one month of the date of 15
such notice Queensland may undertake the Initial Dredging 16
Component and may let a contract or contracts for that purpose as 17
the representative of both Parties. 18
9.7 If Queensland becomes entitled to undertake the Initial Dredging 19
Component pursuant to clause 9.6 but does not let the first 20
contract or contracts for the Initial Dredging Component within 21
four months of becoming so entitled, any notice given by 22
Queensland under clause 9.6 shall be of no effect and NSW shall 23
be responsible for undertaking the Initial Dredging Component 24
within a reasonable time. 25
10. ARTIFICIAL SAND BYPASSING SYSTEM 26
10.1 The Coordinating State will take all necessary preparatory actions 27
for the letting of contracts by the Joint Principals for the design, 28
construction, commissioning, operation, maintenance and 29
27
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
replacement from time to time of the System. 1
10.2 Provided there has been full and open consultation between the 2
Parties in relation to the preparation of any contract referred to in 3
clause 10.1, the Reviewing State shall not unreasonably refuse to 4
execute that contract. 5
10.3 Subject to clause 10.6 the Coordinating State will use its best 6
endeavours to enable the Parties to achieve the Target Actions 7
listed in column 1 of the following table by the Target Dates listed 8
in column 2 of the following table 9
TABLE 10
Column 1 Column 2 11
TARGET ACTION TARGET DATE
(i) Call tenders for the 31 October, 1997 Date 1 12
First System
(ii) Let the above contract 30 June, 1998 Date 2
(iii) Commission the First 30 November, 1999 Date 3 13
System and commence 14
its operation
(iv) Establish a Clear 31 December, 1999 Date 4 15
Navigation Channel
10.4 The Parties may agree to establish an Interim System but failure 16
or inability of the Parties to agree to establish an Interim System 17
shall not create any rights under this Agreement and in particular 18
shall not be referred to expert determination pursuant to clause 17. 19
An Interim System will be established only if the Parties agree on 20
the following: 21
(a) new dates for Target Dates 1, 2 and 3, in accordance with the 22
intended period of operation of the Interim System; and 23
(b) how the costs of the Interim System will be apportioned 24
between the Parties. 25
10.5 Without limiting the generality of the obligation of the 26
28
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
Coordinating State under clause 8 to consult fully and openly with 1
the Reviewing State, the Coordinating State will undertake the 2
Consultation Actions listed in column 1 in the following table: 3
TABLE 4
Column 1 Column 2 Column 3 5
CONSULTATION ACTION TIME NEXT ACTION
(i) provide working drafts of the three weeks not applicable 6
EIS to the Reviewing State for 7
review
(ii) provide the final draft EIS to the two weeks finalise the EIS 8
Reviewing State for review
(iii) advise that the EIS has been one week commence public 9
finalised and seek approval to exhibition 10
advertise
(iv) provide all responses to the EIS three weeks accept tender 11
to the Reviewing State (subject to (v),
(vi), and (vii))
(v) provide draft tender documents three weeks finalise tender 12
to the Reviewing State documentation
(vi) provide final tender documents three weeks call tenders 13
for acceptance
(vii) provide copies of all tenders, four weeks accept tender 14
their evaluation and a 15
recommendation to the 16
Reviewing State for review and 17
acceptance
10.6 The Reviewing State will use its best endeavours to give the 18
Coordinating State a response to each Consultation Action, 19
including where applicable written approval to proceed with the 20
action in column 3 opposite that Consultation Action, within the 21
time shown in Column 2 opposite that Consultation Action. 22
29
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
If the Reviewing State does not give written approval within that 1
time each Target Date for which the Target Action has not yet 2
been completed shall be adjusted by the period of the delay in 3
giving written approval to proceed. 4
10.7 The Coordinating State will not carry out the action in column 3 5
of the table in clause 10.5 opposite any Consultation Action until 6
the Reviewing State gives written approval in accordance with 7
clause 10.6. 8
10.8 The Coordinating State will use its best endeavours to ensure that 9
a Clear Navigation Channel to the Tweed River is maintained and 10
to ensure that the Contract Quantity of sand is delivered to the 11
Beaches by each Anniversary Date. 12
10.9 The Coordinating State shall ensure that any contracts for the 13
operation of the System include provisions that: 14
(a) require the contractor to manage the distribution of dredging 15
between the navigation channel and other parts of the Tweed 16
River Bar and Entrance Area to achieve the outcomes 17
required by clause 10.8; 18
(b) whenever the quantity of sand delivered at any Anniversary 19
Date falls short of the Contract Quantity, require the 20
contractor to correct any such deficiency in the quantity of 21
sand delivered prior to the next Anniversary Date; and 22
(c) whenever the quantity of sand delivered at any Anniversary 23
Date exceeds the Contract Quantity, require the contractor to 24
correct any such over supply in the quantity of sand 25
delivered prior to the next Anniversary Date. 26
10.10 The Coordinating State will use its best endeavours to ensure 27
that the System continues to operate to meet the requirements of 28
this Agreement for so long as this Agreement remains in force. 29
10.11 Exchange of Roles 30
10.11.1 Subject to this Agreement, if for any reason whether or 31
not by reason of default by the Coordinating State, but 32
30
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
other than by reason of default by the Reviewing State: 1
(i) any Target Action is not achieved within four 2
months of the applicable Target Date; or 3
(ii) after Target Date 4 in clause 10.3, there is not a 4
Clear Navigation Channel for a period of three 5
months; or 6
(iii) at any Anniversary Date there has been delivered 7
to the Beaches a quantity of sand which falls short 8
of or exceeds the Contract Quantity by an amount 9
exceeding five hundred thousand cubic metres; or 10
(iv) for any three consecutive Anniversary Dates there 11
has been delivered to the Beaches a quantity of 12
sand which falls short of the Contract Quantity by 13
an amount exceeding one hundred thousand cubic 14
metres; or 15
(v) for any three consecutive Anniversary Dates there 16
has been delivered to the Beaches a quantity of 17
sand which exceeds the Contract Quantity by an 18
amount exceeding one hundred thousand cubic 19
metres; 20
the Reviewing State may notify the Coordinating State in 21
writing that it intends to become the Coordinating State. 22
The notice will specify one or more of the circumstances 23
listed in this clause. 24
10.11.2 The roles of the Parties as Coordinating State and 25
Reviewing State shall be exchanged one month after the 26
Reviewing State gives notice under clause 10.11.1 unless 27
in the case of a notice given under clause 10.11.1(i) or 28
10.11.1(ii) the Coordinating State corrects the 29
circumstance referred to in the notice within that time. 30
10.11.3 After an exchange of roles under clause 10.11.2: 31
(i) where the exchange of roles is based on 32
31
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
clause 10.11.1(i) the Target Date for any 1
unreached Target Action shall be adjusted by one 2
year from the exchange of roles; 3
(ii) where the exchange of roles is based on 4
clause 10.11.1(ii) the Coordinating State shall use 5
its best endeavours to achieve a Clear Navigation 6
Channel within one year; or 7
(iii) where the exchange of roles is based on 8
clause 10.11.1(iii) or 10.11.1(iv) or 10.11.1(v) the 9
Coordinating State shall use its best endeavours to 10
achieve the Contract Quantity within two years. 11
10.11.4 An exchange of roles under clause 10.11.2 may take 12
place any number of times, provided that for the purpose 13
of clause 10.11.1(iv) or 10.11.1(v), only Anniversary 14
Dates on which the same Party is Coordinating State 15
shall be taken into account. 16
10.11.5 If the cause of any of the circumstances in clause 10.11.1 17
arises out of or in consequence of a default by the 18
Coordinating State under this Agreement then the 19
provisions of this clause 10.11 and clause 13.7 shall, 20
subject to this Agreement, be exclusive of any other 21
remedy in respect of those circumstances unless: 22
(i) any Target Action is not achieved within 150% of 23
the period referred to in clause 10.11.1(i) after the 24
applicable Target Date; or 25
(ii) a failure to maintain a Clear Navigation Channel 26
persists for a period of 150% of the period 27
referred to in clause 10.11.1(ii) as adjusted 28
pursuant to clause 10.11.6; or 29
(iii) the shortfall or excess in the quantity of sand 30
delivered to give rise to a circumstance referred to 31
in clause 10.11.1(iii), (iv) or (v) is in any case 32
150% of the quantity referred to in the applicable 33
32
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
clause as adjusted pursuant to clause 10.11.6. 1
10.11.6 The performance parameters in clause 10.11.1(ii) to (v) 2
and clause 13.7 have been based on the expectation that 3
performance within those parameters can reasonably be 4
achieved continuously during the Project by a competent 5
contractor, competently managed by the Coordinating 6
State. 7
These parameters shall be reviewed against the above 8
criterion immediately prior to the commissioning of the 9
First System and thereafter at the time of reassessment 10
of the Long Term Average pursuant to clause 12.2.3 11
and, upon the request of either Party following such 12
review, the Parties shall negotiate in good faith for the 13
purpose of determining whether any adjustment should 14
be made to these parameters. 15
Any dispute concerning the review or the proper 16
adjustment to any parameter pursuant to this clause may 17
be referred to an Expert appointed in accordance with 18
clause 17. 19
10.12 Suspension of Operation of the System 20
10.12.1 Notwithstanding any other provision of this Agreement, 21
if for any reason whatsoever the operation of the System 22
becomes or causes a danger or hazard to human health, 23
the environment or the System then the Coordinating 24
State may, and shall at the direction of the Reviewing 25
State, suspend operation of the System for so long as the 26
risk to human health, the environment or the System 27
should remain. 28
10.12.2 If the operation of the System is suspended under this 29
clause for more than four weeks, the time allowed for 30
the provision of a Clear Navigation Channel shall be 31
extended by a period equivalent to the duration of the 32
suspension plus a reasonable period to re-establish a 33
Clear Navigation Channel and the annual increment to 34
33
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
the Contract Quantity for the relevant Annual Period will 1
be adjusted to take account of the duration of the 2
suspension. 3
10.12.3 If the annual increment for any Annual Period is 4
adjusted pursuant to clause 10.12.2, a corresponding 5
adjustment shall be made to the annual increments for 6
the subsequent Annual Period or Periods, as may be 7
reasonable in the circumstances having regard to the 8
magnitude of the adjustment, in order that the sum of the 9
annual increments to the Contract Quantity shall be in 10
accordance with clause 12. 11
10.13 Replacement Systems 12
Without in any way limiting any other obligation under this 13
Agreement, when any Artificial Sand Bypassing System 14
constructed under this Agreement is to be replaced, the Parties 15
agree to consult fully with each other and to each use its best 16
endeavours to ensure that the replacement System is completed 17
in a timely manner so as to continue to meet the purpose of this 18
Agreement. 19
11. ADDITIONAL WORKS 20
11.1 The Parties acknowledge that activities incidental to the Project 21
such as the environmental approval process, may identify works 22
which must be undertaken in order to ensure that the objectives of 23
one or both Parties are achieved in accordance with all legal 24
requirements. Such works shall be undertaken by or on behalf of 25
the Party in whose territory those works are required and, subject 26
to clause 11.2, at the cost of that Party. 27
11.2 The Ministerial Council may agree to include as part of the 28
Project works which would not otherwise be part of the Project, 29
including works referred to in clause 11.1 and such works shall 30
be Additional Works and shall form part of the Project. 31
11.3 Failure or inability of the Ministerial Council to agree as to the 32
34
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
inclusion of any works as Additional Works shall not create any 1
rights under this Agreement and in particular shall not be referred 2
to expert determination pursuant to clause 17. 3
12. CONTRACT QUANTITY 4
12.1 Definition of Contract Quantity 5
The Contract Quantity of sand to be delivered to the Beaches on 6
or before any Anniversary Date, shall be the cumulative total of: 7
(a) 2 million cubic metres to be delivered as the Initial Dredging 8
Component; plus 9
(b) annual increments in respect of each Annual Period, 10
determined in accordance with clause 12.2. 11
12.2 Calculation of the Annual Increment 12
12.2.1 Subject to clause 12.2.2, the annual increment to the 13
Contract Quantity shall, in the absence of contrary 14
agreement, be: 15
(a) the Long Term Average; plus 16
(b) where applicable, the increases provided for in 17
clause 12.2.6. 18
12.2.2 Notwithstanding clause 12.2.1, if the first Annual Period 19
is a period less than a full year the first annual increment 20
shall be the Long Term Average multiplied by the 21
proportion which the first Annual Period bears to a full 22
year, plus the quantity determined pursuant to 23
clause 12.2.6 for the first Annual Period. 24
12.2.3 The Parties acknowledge and agree that the Long Term 25
Average is 500,000 cubic metres per annum as at the date 26
of this Agreement. The Long Term Average shall be 27
reassessed at 1 January, 2005, and thereafter at 10 year 28
intervals. Any of those reassessments shall be carried out 29
earlier if agreed by the Parties on the basis that the actual 30
35
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
environmental impacts indicate that the assessment of the 1
Long Term Average requires adjustment. 2
12.2.4 Three months prior to each Anniversary Date, the Parties 3
shall negotiate in good faith with a view to reaching 4
agreement on the annual increment to the Contract 5
Quantity for an agreed number of succeeding Annual 6
Periods and failing agreement the annual increments shall 7
be as previously agreed pursuant to this clause 12.2.4 or, 8
if there is no such agreement, as provided in 9
clause 12.2.1. 10
12.2.5 The Parties acknowledge and agree that for the purposes 11
of clause 12.2.4 the annual increments to the Contract 12
Quantity may vary from year to year to take account of: 13
(a) any annual variations in the quantity of sand delivered 14
to Letitia Spit; 15
(b) the specific objectives of both Parties as set out in the 16
recital; and 17
(c) any suspension of the operation of the System under 18
clause 10.12, 19
but that any agreement pursuant to that clause shall ensure 20
that the average of the annual increments to the last 21
Annual Period in respect of which there is agreement, 22
disregarding the additional quantity provided for in 23
clause 12.2.6, shall be equivalent to the Long Term 24
Average. 25
12.2.6 During the first six Annual Periods an additional quantity 26
of sand, to be known as the "Supplementary Increment" 27
equivalent to the sum of: 28
(a) 550,000 cubic metres; and 29
(b) the volume of sand which would have been transported 30
between the completion of the first phase of the Initial 31
Dredging Component and the commencement of the 32
36
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
operation of the System calculated at the rate of 1
500,000 cubic metres per annum 2
shall be added to the Contract Quantity as provided in this 3
clause 12.2.6. 4
Delivery of any part of the Supplementary Increment 5
during the first five Annual Periods shall not trigger the 6
operation of clause 10.11 or clause 13.7 but the annual 7
increments shall be retrospectively adjusted by the amount 8
of the additional quantity delivered, whether or not there is 9
agreement pursuant to clause 12.2.4 to increase the annual 10
increment with respect to any part of that quantity. 11
Any part of the Supplementary Increment which has not 12
been delivered earlier will be added to the annual 13
increment for the sixth Annual Period. 14
12.2.7 The Parties acknowledge and agree that: 15
(a) a quantity of sand sufficient to provide a useable beach, 16
including nearshore shoals, to be known as the 17
"Duranbah Supply", shall be delivered to Duranbah 18
beach from time to time and this shall be a minor 19
fraction (up to 10%) of the sand delivered by the 20
System; 21
(b) 50% of such quantity, or such other percentage as may 22
be agreed between the Parties or determined in 23
accordance with clause 12.2.8, as the percentage which 24
is likely to be transported to Queensland, to be known 25
as the "Duranbah Contract Quantity", shall be 26
considered as having been delivered as part of the 27
Contract Quantity; 28
(c) the work associated with supplying sand to Duranbah 29
beach shall be a Shared Project Cost; 30
(d) the quantity of sand to be delivered to Kirra Point, to be 31
known as the "Kirra Contract Quantity", shall not 32
exceed a total of 200,000 cubic metres in any two 33
37
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
consecutive Annual Periods and shall not exceed 1
75,000 cubic metres per annum on a long term average; 2
and 3
(e) subject to the environmental approval process, any sand 4
which moves from the Tweed River Bar and Entrance 5
Area including into the river following commencement 6
of the Initial Dredging Component shall be available for 7
the Project. 8
12.2.8 Any dispute between the Parties as to: 9
(a) the Long Term Average; 10
(b) the quantity referred to in clause 12.2.7(a); or 11
(c) the percentage referred to in clause 12.2.7(b), 12
may be referred by either Party to an Expert appointed in 13
accordance with clause 17. 14
12.3 Supply of Sand 15
If, owing to insufficient sand being available or as a result of any 16
legislative requirements, including an environmental impact 17
assessment, or any limits imposed under the general law, the 18
Contract Quantity cannot be delivered from the Tweed River Bar 19
and Entrance Area to the Beaches, the Parties shall, having regard 20
to the objectives of both Parties, use their best endeavours to 21
ensure that the shortfall in the Contract Quantity of sand is 22
delivered from the coastal system outside of the Tweed River Bar 23
and Entrance Area. Obtaining the shortfall shall be a Shared 24
Project Cost. 25
If the above circumstances result in a substantial failure to meet 26
either Party's objective so as to amount to frustration of this 27
Agreement, this clause 12.3 shall not apply to prevent frustration 28
of this Agreement. 29
38
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
13. SHARING COSTS FOR THE PROJECT 1
13.1 Subject to the due performance of the relevant work the final 2
actual costs of the Shared Project Costs under this Agreement 3
will be contributed to by the Parties in accordance with this 4
clause 13. 5
13.2 Final actual costs of any work performed pursuant to this 6
Agreement include the costs of preliminary investigation, reports, 7
administrative procedures and other activities, all as approved by 8
the Ministerial Council and costs referred to in clause 8.1.3. 9
13.3 The final actual costs of the work associated with the Initial 10
Dredging Component and of the work associated with the 11
establishment and commissioning of the First System will be 12
shared by the Parties in the following proportions: 13
NSW 75% 14
QUEENSLAND 25% 15
13.4 The final actual costs of all other works which are expressed to be 16
Shared Project Costs in this Agreement, for which a percentage 17
cost sharing basis is not stated elsewhere in this Agreement, or 18
otherwise agreed between the Parties pursuant to this Agreement, 19
shall be shared equally by the Parties. 20
Such works include without limitation the operation of the 21
System, monitoring and auditing, and the establishment and 22
commissioning of any replacement System. 23
13.5 In the event that, under the terms of a contract let in accordance 24
with clause 10, the establishment costs for the First System are 25
not paid entirely by up-front capital contribution, but are wholly 26
or partly incorporated in a recurrent payment per unit of sand 27
supplied, the Parties will apportion the recurrent unit charge 28
between establishment costs and other costs for the purpose of 29
the application of the agreed shared contributions, as set out in the 30
preceding provisions of this clause 13. 31
13.6 For the purpose of arriving at an apportionment under 32
39
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
clause 13.5; 1
(a) if the tender submitted by the contractor has a price for the 2
capital cost and a price for the operating cost, those prices 3
will be used unless either Party objects to the use of those 4
prices; and 5
(b) if the Parties do not agree to use the prices in the contractor's 6
tender or if the tender does not have prices which can be 7
used to apportion the recurrent charge between establishment 8
costs and other costs, then the Parties shall negotiate in good 9
faith for the purpose of agreeing to an apportionment, and, 10
failing agreement, either Party may refer the matter to an 11
Expert appointed in accordance with clause 17. 12
13.7 If any default by the Coordinating State under this Agreement 13
results in any circumstance in column 1 of the following table and 14
the Reviewing State gives notice to the Coordinating State 15
invoking this clause 13.7, then, notwithstanding clause 13.4 but 16
subject to clause 13.9, the cost sharing consequence in column 2 17
of the following table opposite the relevant circumstance shall 18
apply: 19
COLUMN 1 COLUMN 2 20
Circumstance Consequence
(i) there is not a Clear Navigation the Coordinating State shall pay 21
Channel for a period of three 60% of the operating costs of the 22
months System until there is a Clear
Navigation Channel
(ii) there has been delivered a the Coordinating State shall pay 23
quantity of sand which falls 60% of the operating costs from the 24
short of the Contract Quantity relevant Anniversary Date until the 25
by an amount exceeding two Contract Quantity is achieved. 26
hundred thousand cubic metres
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Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
(iii) there has been delivered a the Coordinating State shall pay 1
quantity of sand which exceeds 60% of the operating costs 2
the Contract Quantity by an associated with the delivery of the 3
amount exceeding two hundred quantity of the oversupply plus 60% 4
thousand cubic metres of the operating costs from the
relevant Anniversary Date until the
Contract Quantity has been
achieved.
13.8 For the purposes of the application of the consequences opposite 5
items (ii) and (iii) in the table in clause 13.7 only, the annual 6
increment for any Annual Period during which the consequence 7
of the table in clause 13.7 applies shall be apportioned over the 8
year as equal monthly increments and the Contract Quantity will 9
be taken to have been achieved if on the last day of any month 10
there has been delivered a quantity of sand equivalent to the 11
Contract Quantity at the preceding Anniversary Date plus the 12
monthly increments, calculated in accordance with this 13
clause 13.8, which have accrued to that date. 14
13.9 If a circumstance referred to in clause 13.7 results in an 15
exchange of roles pursuant to clause 10.11, the consequences in 16
column 2 of the table in clause 13.7 shall not apply to any 17
operating costs of the System incurred after the date of that 18
exchange of roles. 19
13.10 Subject to the provisions of clause 10.11.5, the provisions of 20
clause 13.7 are without prejudice to any other right of the 21
Reviewing State arising out of the relevant default by the 22
Coordinating State provided that, so long as this Agreement 23
remains on foot, the Coordinating State shall have no financial 24
liability to the Reviewing State in relation to any circumstance in 25
column 1 of the table in that clause other than the consequence 26
provided for in column 2 of that table. 27
13.11 If any moneys are contributed to the Project by persons other 28
than the Parties or local government in NSW or Queensland, 29
such moneys shall be accounted for as follows: 30
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Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
(a) if the moneys are specified to be for a particular element of 1
the Project, the final actual costs of the work for that element 2
will be reduced by the amount of the contribution; or 3
(b) if the moneys are not specified to be for a particular element 4
of the Project, the final actual costs of any work undertaken 5
after the contribution will be reduced by applying the 6
moneys until the contribution has been fully expended. 7
PART IV--GENERAL 8
14. ACCOUNTING ARRANGEMENTS 9
14.1 The Parties acknowledge that the costs of the Project may vary 10
substantially from year to year, and agree to meet the actual costs 11
of the Project as they become due. 12
14.2 The Parties acknowledge that expenditure records for the Project 13
shall be established and kept by one of the Parties ("the Banker") 14
or its nominee, on behalf of the Project. 15
14.3 Unless varied by contrary agreement, the Coordinating State shall 16
be the Banker. 17
14.4 The Banker shall: 18
(a) establish a consolidated set of expenditure records for 19
Shared Project Costs; 20
(b) draw up individual accounts for each Party on the basis of 21
the cost sharing ratios set out in clause 13; 22
(c) in consultation with the other Party, draw up a projected cash 23
flow based on the Cash Flow Period; and 24
(d) report to the Working Group on progress against projected 25
cash flow within four weeks of the conclusion of each Cash 26
Flow Period. 27
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SCHEDULE 1--DEED OF AGREEMENT (continued)
14.5 Unless either Party notifies the Banker in writing that it anticipates 1
that actual expenditure for the Cash Flow Period will have a 2
significant variation from the projected cash flow, the Banker will 3
bill both Parties on the basis of the projected cash flow. 4
For the purpose of this clause a "significant variation" is any 5
variation of more than 10% or any variation which is expected to 6
have a duration of more than two cash flow periods. 7
14.6 Where any amount is due by a Party, after taking into account any 8
credit pursuant to clause 14.9.2(b), that Party will pay that amount 9
to the Banker before the middle of each Cash Flow Period. 10
14.7 In the case of a significant variation in the cash flow advised to 11
the Banker and approved by both Parties, the Banker will amend 12
the projected cash flow and the amended projected cash flow will 13
be used as the basis for billing and payments. 14
14.8 Either Party may call for a reconciliation between actual 15
expenditure and payments. If such reconciliation is called for, the 16
Banker shall carry out the calculations and include any necessary 17
adjustments in the next account to each Party. 18
14.9 Works Carried Out or Paid for by a Party 19
14.9.1 Where either Party carries out or pays for work which is a 20
Shared Project Cost the Contracting State will bill the 21
Banker for the full cost of that work. 22
14.9.2 The Banker will take the value of such work or 23
expenditure into account in issuing individual accounts to 24
the Parties: 25
(a) as an expenditure which becomes part of the cost of the 26
Project; and 27
(b) as a credit against the Contracting State's liability with 28
respect to the Project. 29
14.10 Management Fee 30
14.10.1 The Banker may impose a management fee for 31
managing the financial accounts. This fee shall not 32
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Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
exceed 0.5% of the total debits in any cash flow period. 1
14.10.2 The management fee shall cover all costs normally 2
associated with keeping the accounts including 3
disbursements, but not including interest on outstanding 4
payments and not including any auditing fees. 5
14.10.3 The management fee and any auditing fees shall be 6
shared as a Shared Project Cost. 7
14.11 Interest 8
If either Party is late in making any payment due to the other 9
Party, the latter may charge an interest fee which is the 90 day 10
Bank Bill Rate last published before the day on which the 11
payment was due. 12
15. ASSETS ACQUIRED BY THE PARTIES 13
15.1 The Parties shall keep a list of assets (if any) each acquires as a 14
Shared Project Cost. 15
15.2 Neither Party shall dispose of any assets acquired as a Shared 16
Project Cost unless both Parties agree in writing that the asset 17
may be disposed of without adversely affecting the capacity of the 18
Project to satisfy the purpose of this Agreement. 19
15.3 The proceeds from the disposal of any surplus assets shall be 20
paid to the Banker to be distributed between the Parties in 21
accordance with the contributions made by each Party to the 22
acquisition of those assets. 23
15.4 Land in either State acquired for the Project as a Shared Project 24
Cost shall be vested in the name of that State or a Minister from 25
that State and shall be held in such name or in the name of 26
another Minister from that State unless disposed of in accordance 27
with this clause. 28
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SCHEDULE 1--DEED OF AGREEMENT (continued)
16. PARTIES TO FACILITATE WORKS 1
16.1 A Party within whose territory any of the works constituting the 2
Project are to be performed, constructed, maintained, operated or 3
controlled by any person shall use its best endeavours to provide 4
to such person or its authorised agent, all such powers, leases, 5
licences and permission over or with respect to the territory of the 6
Party as may be necessary for the exercise and performance of 7
the Project and each of the Parties shall take such steps either by 8
acquiring land or interests in land or otherwise as may be 9
necessary to give effect to the Project. 10
16.2 The Parties agree that any compensation which may be payable 11
whether for the acquisition of land or any interest in land or 12
otherwise for the purposes of the Project shall be a Shared Project 13
Cost to be apportioned as an establishment cost of the System. 14
17. DISPUTES 15
17.1 Notwithstanding the existence of any dispute the Parties shall 16
continue to perform their obligations under this Agreement. 17
17.2 Submission to the Working Group 18
If a dispute between the Parties arises out of or in connection with 19
this Agreement, other than a dispute which this Agreement 20
provides to be referred directly to expert determination or a 21
dispute arising out of a determination or decision by the Working 22
Group, or the failure of the Working Group to give a decision or 23
determination, either Party may refer the dispute to the Working 24
Group. 25
17.3 Submission to the Ministerial Council 26
17.3.1 If the Working Group cannot resolve a dispute referred to 27
it within 30 days, or another period if agreed between the 28
Parties, it shall refer the dispute to the Ministerial Council. 29
17.3.2 Any dispute arising out of a determination or decision of 30
the Working Group or the failure of the Working Group 31
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Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
to give a decision or determination may be referred by 1
either Party to the Ministerial Council. 2
17.3.3 Any dispute which may be referred to the Working 3
Group under clause 17.2 may be referred by either Party 4
at any time to the Ministerial Council, subject to the 5
consent of the other Party. A dispute may be referred to 6
the Ministerial Council under this clause whether or not it 7
has previously been referred to the Working Group. 8
17.4 Expert Determination 9
17.4.1 Subject to any provision of this Agreement that a matter 10
shall not be referred to expert determination either Party 11
may refer any of the following for expert determination in 12
accordance with clause 17.4.2: 13
(a) a dispute referred to the Ministerial Council which the 14
Ministerial Council has not resolved within 60 days; 15
(b) a dispute arising out of the inability of the Ministers 16
constituting the Ministerial Council to reach agreement 17
on any matter arising out of or in connection with this 18
Agreement; 19
(c) a dispute which this Agreement provides may be 20
referred to expert determination; or 21
(d) subject to the consent of the other Party, any other 22
dispute, including a dispute previously referred to the 23
Ministerial Council in respect of which the period of 24
60 days referred to in clause 17.4.1(a) has not elapsed. 25
17.4.2 The expert determination process shall be effected by an 26
expert in the relevant field agreed upon and appointed 27
jointly by the Parties. In the absence of agreement as to 28
the appointment of an Expert either Party may request the 29
Secretary General of the Australian Commercial Disputes 30
Centre Limited at Sydney, or another body as agreed, to 31
nominate an Expert. The request shall indicate that the 32
nominee shall not be an employee of either Party or a 33
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Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
person in respect of whom there has been a failure to 1
agree by the Parties. 2
17.4.3 The appointment of an Expert shall be conclusive 3
evidence that the particular dispute relates to matters 4
properly the subject of expert determination. 5
17.4.4 The following shall apply to the Process: 6
(a) the Process shall be conducted in accordance with the 7
Rules for the Expert Determination Process set out in 8
Schedule 4; 9
(b) for the purposes of the application of the Rules, the 10
Party referring the dispute to the Expert is the 11
"Claimant" and the other Party is the "Respondent"; 12
(c) the determination of the Expert shall be made as an 13
Expert and not as an Arbitrator and shall be final and 14
binding on the Parties except where the Expert's 15
determination is that one Party shall pay the other an 16
amount in excess of $500,000; 17
(d) the Expert may determine whatever interest the Expert 18
considers reasonable; and 19
(e) if one Party has overpaid the other, whether under a 20
mistake of law or fact, the Expert may determine what 21
repayment (together with interest) shall be made. 22
17.5 Moneys that are or become due and payable by either Party under 23
this Agreement and which are subject to a dispute shall not be 24
withheld during the Process but following the determination by 25
the Expert any necessary adjustments will be made to future 26
payments. 27
18. UNAVOIDABLE DELAY 28
The Parties agree that delay caused by an unforeseen event shall not 29
frustrate this Agreement. If either Party is delayed in performing its 30
obligations under this Agreement, owing to an event beyond its control 31
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Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
which could not reasonably have been foreseen, including the failure 1
by a contractor to perform under the terms of any contract let in 2
accordance with and for the purposes of this Agreement, then the delay 3
shall not be taken to be a default under this Agreement but the Party 4
concerned shall use its best endeavours (in consultation with the other 5
Party) to remedy the position within such time as may be reasonable in 6
the circumstances. 7
19. DEFAULT 8
19.1 Notice to Rectify and/or Pay Compensation 9
19.1.1 Where either Party is in default of any obligation under 10
this Agreement, including the obligation to consult with 11
the other Party, the Party not in default may, by notice in 12
writing to the Party in default: 13
(a) specify the nature of the default, the facts relied upon to 14
establish the default and if any specific action is 15
required to rectify the default, that action; and 16
(b) if it so elects, and whether or not the Party in default is 17
reasonably capable of rectifying the default, provide that 18
Party with the alternative of paying a sum of money 19
specified as reasonable compensation in substitution for 20
rectification of the default or for rectification of any 21
specified aspect of the default. 22
19.1.2 A notice pursuant to this clause 19.1 may include both a 23
request for partial rectification and a claim for 24
compensation in relation to the same default, and may be 25
satisfied by partial rectification of the default plus payment 26
of compensation. 27
19.1.3 A notice pursuant to this clause 19.1 is a precondition to 28
termination of this Agreement in the event of default. 29
19.2 Termination 30
Subject to clause 19.3, where the Party in default has: 31
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Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
(a) not commenced appropriate action to rectify the default 1
referred to in a notice under clause 19.1 within 30 days of 2
receiving such notice; or 3
(b) commenced action in accordance with subclause (a) but has 4
not rectified the default within a reasonable period, such 5
period being not less than 30 days after the Party receives 6
notice under clause 19.1; 7
whether or not the default is reasonably capable of being rectified, 8
the Party not in default may, by further notice in writing to the 9
Party in default, terminate this Agreement. 10
19.3 The right to terminate under clause 19.2 shall not apply to a 11
default unless either 12
(a) (i) the default is in respect of an obligation to consult, 13
involves an issue of risk management and produces or 14
is likely to produce an additional cost to the Party not in 15
default in excess of $1 million; and 16
(ii) there has been repeated and persistent failure to consult 17
and the defaults are in respect of an obligation to 18
consult, involve an issue of risk management, and 19
during the preceding five year period have produced or 20
are likely to produce an additional cost to the Party not 21
in default in excess of $1 million; or 22
(b) the default is in respect of any other obligation and amounts 23
to a repudiation of this Agreement. 24
19.4 The right to terminate under clause 19.2 shall not apply to a 25
default to the extent that a notice under clause 19.1 includes a 26
claim for reasonable compensation, and the defaulting Party has: 27
(a) within 30 days of receiving notice, by notice in writing to the 28
other Party elected to pay such compensation; and 29
(b) paid such compensation within a reasonable time. 30
19.5 At any time prior to termination in accordance with clause 19.2, a 31
dispute between the Parties as to: 32
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Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
(a) the existence of a default by either Party; 1
(b) whether a default has been rectified; 2
(c) what is a reasonable period for rectification of a default; or 3
(d) whether a claim for compensation in terms of clause 19.1 is 4
reasonable, 5
may be referred by either Party to an Expert appointed in 6
accordance with clause 17. A notice terminating this Agreement 7
shall be of no effect if any matter under this clause 19.5 has been 8
referred for expert determination and the notice is given before 9
such determination. 10
19.6 The termination of this Agreement does not affect the rights of 11
either Party for default by the other Party under this Agreement 12
committed before the termination or any right of action or remedy 13
which has accrued or which may accrue in favour of either Party. 14
19.7 The Parties acknowledge that if this Agreement is terminated 15
pursuant to this clause 19, then the resulting damages caused to 16
the Party not in default may include: 17
(a) the contribution by the Party not in default to any 18
compensation payable to any third party in respect of the 19
termination of any contract entered into for the purpose of 20
this Agreement by both Parties as Joint Principals or by 21
either Party; 22
(b) the reasonable costs of site restoration; and 23
(c) one of the following: 24
(i) for Queensland--the net present value, at the date of 25
termination, of the dredging of sand of an equivalent 26
quality from the nearest available source to achieve the 27
quantities in clause 12, less Queensland's share of the 28
net present value of that part of the Shared Project 29
Costs (including works and operation not yet 30
undertaken) not yet paid for by Queensland at the date 31
of termination; or 32
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Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
(ii) for NSW--the net present value, at the date of 1
termination, of the dredging required to achieve a Clear 2
Navigation Channel and disposal to the nearest 3
available deposition site in perpetuity less NSW's share 4
of the net present value of that part of the Shared 5
Project Costs (including works and operation not yet 6
undertaken) not yet paid for by NSW at the date of 7
termination. 8
20. OWNERSHIP OF SAND 9
20.1 All sand which enters the System becomes an asset of the Project 10
and, subject to the provisions of this clause 20, becomes the 11
property of Queensland upon delivery to Queensland, or the 12
coastal waters of the State of Queensland as defined in the Coastal 13
Waters (State Powers) Act, 1980 (Cth). The value of any 14
royalties and net profits made from or in connection with any 15
extraction of minerals as part of the System or the sale of sand 16
delivered by the System shall be shared equally between the 17
Parties and where any payments are collected by either Party, any 18
necessary adjustment will be made to the accounts prepared 19
pursuant to clause 14 to ensure that the value of those payments is 20
shared equally. 21
20.2 For the purposes of clause 20.1 the sale of sand refers only to 22
sand sold and removed from the System or from the littoral 23
system between Snapper Rocks and Currumbin Rock, excluding 24
sand sold and removed under any rights under existing leases and 25
permits, including rights to renewal or extension thereof which 26
exist at the date of this Agreement. 27
20.3 Neither Party will levy a royalty on a Party to this Agreement in 28
respect of sand which is transferred between the States pursuant 29
to this Agreement. 30
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SCHEDULE 1--DEED OF AGREEMENT (continued)
21. APPROPRIATION 1
The Parties agree to submit to their respective Parliaments annually 2
through the budgetary process for the appropriation of all funds 3
necessary or required for the purposes of this Agreement. 4
22. COSTS 5
Each Party agrees to bear its own costs and expenses in relation to the 6
investigation, negotiation, preparation, execution and delivery of this 7
Agreement. 8
23. LIABILITY 9
The liability of either Party for breach of contract, or in tort or for any 10
other common law or statutory cause of action arising out of the 11
operation of this Agreement, shall be determined under the relevant 12
law in Australia that is recognised, and would be applied, by the High 13
Court of Australia. 14
24. SEVERABILITY OF PROVISIONS 15
If any provision of this Agreement or the application of any provision 16
of this Agreement to any person or circumstance shall be or become 17
invalid or unenforceable, then the Parties shall in good faith enter into 18
negotiations to agree what alteration to their respective rights and 19
obligations under this Agreement ought reasonably to occur as a 20
consequence. The remaining provisions of this Agreement shall not 21
be affected by such invalidity or unenforceability and those remaining 22
provisions shall be valid and enforceable to the fullest extent permitted 23
by law. 24
25. EXERCISE OF RIGHTS 25
25.1 Subject to this Agreement, either Party may exercise any right, 26
power or remedy arising out of or in connection with this 27
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Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
Agreement at its sole discretion, and either separately or 1
concurrently with any other right, power or remedy. 2
25.2 Except where a contrary intention appears, the rights, powers and 3
remedies created by this Agreement are cumulative with and do 4
not exclude any rights, powers or remedies provided by law 5
independently of this Agreement. 6
26. WAIVER AND VARIATION 7
A provision of or a right created under this Agreement may not be: 8
(a) waived except in writing signed by the Party granting the waiver 9
and then such waiver shall be effective only in the specific 10
instances and for the purposes for which it is given; and 11
(b) varied except in writing signed by the Parties and, in the event that 12
this Agreement is ratified in accordance with clause 6, in 13
accordance with any Acts ratifying it. 14
27. OWNERSHIP AND USE OF INTELLECTUAL PROPERTY 15
27.1 The intellectual property rights in any Original Project Material 16
which is created by or on behalf of the Parties in contemplation of 17
and during the course of investigating and undertaking the Project 18
shall be held by the Parties as co-owners and both Parties will do 19
all such acts as are necessary in order to perfect such co- 20
ownership. 21
27.2 Each of the Parties may use any Original Project Material for its 22
own purposes in connection with the Project without further need 23
to account to each other for such use and each Party hereby grants 24
to the other a perpetual non-exclusive, non-transferable royalty- 25
free licence for this purpose. Without limiting the generality of 26
this clause, a Party may use Original Project Material by 27
disclosure to contractors engaged in the Project and may authorise 28
a contractor to use Original Project Material for the purposes of 29
the Project. 30
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SCHEDULE 1--DEED OF AGREEMENT (continued)
27.3 A Party may not use any Original Project Material for a 1
commercial or profit making purpose or grant any licence to a 2
third party to exploit the Original Project Material for financial 3
reward except with the express prior consent of the other Party, 4
which consent shall not be unreasonably withheld. Any consent 5
under this clause may be made subject to reasonable commercial 6
terms and conditions in relation to the exploitation and the return 7
to each Party. Any condition stipulating a return of profits from 8
the exploitation back into the Project shall be deemed to be a 9
reasonable commercial condition for the purposes of this clause. 10
27.4 Notwithstanding clause 27.3, each Party may transfer any 11
Original Project Material between Government Agencies in the 12
same State whether by sale or otherwise without the consent of 13
the other Party. 14
28. FURTHER ASSURANCES 15
Neither Party will undertake activities which are detrimental to or 16
compromise the securing of the other Party's objectives, including any 17
action which may be detrimental to the natural littoral movement of 18
sand. 19
20
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SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 1 1
2
55
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 2 1
2
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SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 3 1
RESPONSIBILITIES OF THE PROJECT DIRECTORS 2
The Project Directors are responsible for: 3
1. ensuring that the respective needs of the Parties are represented 4
and promoted; 5
2. coordinating the activities of the Parties and consultation between 6
them; 7
3. ensuring that the respective Party's input to the project is made in 8
a timely, comprehensive and efficient manner; 9
4. representing the respective Party on the Project Working Group, 10
including the preparation of reports and minutes of the Working 11
Group; 12
5. checking that the respective Party's functional requirements are 13
met throughout the development, including during the production 14
of design and contract drawings, specifications and other contract 15
documents; 16
6. preparing regular reports to their respective agencies covering 17
annual project cash flow requirements and monthly updates 18
against cash flow forecasts; 19
7. arranging approvals for scope of work, budget, funding and 20
program, as authorised by the respective Party; and 21
8. any other requirements of the Working Group or the respective 22
Party that could be reasonably expected of the Project Directors. 23
24
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Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 4 1
RULES FOR THE EXPERT DETERMINATION 2
PROCESS 3
1. Function of the Expert 4
The function of the Expert is to make a determination on the dispute in 5
accordance with these Rules and the letter of appointment of the 6
Expert. 7
2. Commencement 8
The Process shall commence with the acceptance by the Expert of the 9
appointment to act to determine the dispute in accordance with these 10
Rules. 11
3. General Conduct of the Process 12
3.1 No consultation shall take place with either Party other than in the 13
presence of both Parties. 14
3.2 The Expert shall disclose all information and documents received 15
from either Party to the other Party. 16
3.3 Where a Party fails to make a written submission or appear at any 17
conference after having received due notice, the Expert may 18
proceed with the Process. 19
3.4 All proceedings and submissions relating to the Process shall be 20
kept confidential between the Parties and the Expert. No 21
information shall be divulged to any other person except with the 22
prior written consent of both Parties, or as may be required by 23
law or in order to enforce the determination of the Expert. 24
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SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 4 (continued)
4. Written Submissions 1
4.1 Within fourteen (14) days of the date of the commencement of 2
the Process, the Claimant shall provide to the Respondent or its 3
nominee and the Expert a statement detailing the nature of the 4
dispute, any agreed statement of facts and a written submission 5
on the dispute in support of the Claimant's contention. 6
4.2 Within twenty-one (21) days thereafter the Respondent or the 7
Respondent's nominee shall provide to the Claimant and the 8
Expert a written response to the written submission of the 9
Claimant. 10
4.3 If, upon the application of the Claimant, the Expert considers it 11
appropriate, the Claimant may make a written response to the 12
response of the Respondent under paragraph 4.2 above within the 13
time allowed by the Expert and a copy of such written response 14
shall be provided by the Claimant to the Respondent. 15
4.4 If, upon the application of the Respondent, the Expert considers it 16
appropriate, the Respondent may make a written response to the 17
response of the Claimant under paragraph 4.3 above within the 18
time allowed by the Expert and a copy of such written response 19
shall be provided by the Respondent to the Claimant. 20
4.5 If the Expert decides further information or documentation is 21
required for the determination of the dispute the Expert may: 22
(a) require a further written submission or documents from 23
either or both Parties, giving each Party a reasonable 24
opportunity to make a written response to the other's 25
submission; and 26
(b) call a conference between the Parties and the Expert in 27
accordance with paragraph 5 below. 28
5. Conference 29
5.1 When the Expert determines that a conference between the Parties 30
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SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 4 (continued)
is necessary the Expert shall be responsible for arranging the 1
conference at a venue and time convenient for the Parties and 2
shall notify them accordingly. 3
5.2 At least seven (7) days prior to the conference the Expert shall 4
inform the Parties of the matters to be addressed at it and shall 5
hear representations only on those matters. 6
5.3 At the time and place notified for any conference the Parties shall 7
appear before the Expert to make representations on the matters 8
the subject of the conference. 9
5.4 The Expert is not bound by the rules of evidence and may receive 10
information at any conference in any manner the Expert thinks fit, 11
providing that, at all times, the requirements of procedural 12
fairness are met. 13
5.5 At a conference either Party may have legal or other 14
representation. 15
5.6 Any conference shall be held in private. 16
5.7 If requested by either Party, transcripts of all conference 17
proceedings will be taken and be available to the Expert and the 18
Parties. 19
6. The Determination 20
6.1 As expeditiously as possible after the receipt of the submissions 21
or after any conference and, in any event not later than three 22
months after the commencement of the Process unless the time 23
has been extended by agreement between the Parties, the Expert 24
shall determine the dispute between the Parties and notify such 25
determination in writing to the Parties. 26
6.2 The notice of the determination shall include a brief statement of 27
the reasons for the determination. 28
6.3 The Expert shall reach the determination on the basis of the 29
information received from the Parties and on the basis of the 30
60
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 4 (continued)
Expert's own expertise. 1
6.4 Where the determination made by the Expert contains-- 2
(a) a clerical mistake; 3
(b) an error arising from an accidental slip or omission; 4
(c) a material miscalculation of figures or a material mistake in 5
the description of any person, thing or matter; or 6
(d) a defect of form, 7
the Expert shall correct the determination. 8
7. Termination 9
7.1 Subject to paragraph 6.4, the Process shall conclude when the 10
Expert has notified the determination to both Parties. 11
7.2 The Process shall be terminated in the event of the Expert being 12
unable to conclude the Process by reason of the Expert's illness, 13
death, being of unsound mind or failure to act. 14
7.3 If the Expert becomes aware of any circumstances that might 15
reasonably be considered to affect adversely the Expert's capacity 16
to act independently or impartially the Expert must inform both 17
Parties immediately. 18
The Expert must in such circumstances terminate the 19
proceedings, unless the Parties agree otherwise. 20
7.4 If the Process is terminated prior to its conclusion, another expert 21
shall be appointed in accordance with the provisions of the 22
Agreement. 23
8. Costs 24
8.1 Each Party shall bear its own costs of the Process and shall share 25
equally the costs of the Expert and the Process. 26
61
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 4 (continued)
8.2 Security for costs shall be deposited by both Parties at the 1
commencement of the Process at the direction of the Expert. 2
9. Modification 3
Unless otherwise stated these Rules shall be modified only by 4
agreement of the Parties and of the Expert. 5
6
62
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 5 1
AN INDICATIVE EXAMPLE OF THE CALCULATION 2
OF DAMAGES (AS REFERENCED IN CLAUSE 19.7): 3
Notes in General 4
1. The figures are based on the Joint Consultants' Report. 5
2. Values are in 1990 dollar terms. 6
3. The figures are indicative and are based on the assumption that, at and 7
following any termination (which is not contemplated or proposed by 8
the Parties), the alternatives contemplated would be achievable in law 9
and in fact, which is not certain. 10
4. The values are intended to be illustrative of components and the 11
concept, and not to be definitive in quantum. 12
EXAMPLE CALCULATIONS 13
1. NSW IN DEFAULT 14
1.1 Assumptions 15
(a) the Project terminates at the 26th Anniversary Date, one year 16
after replacement of the First System; 17
(b) prospective operating and maintenance costs are $2 million 18
per annum; 19
(c) scheduled replacement expenditures are $8.45 million after 20
24 years and at 25 year intervals thereafter; 21
(d) the applicable discount rate is 7 per cent per annum; 22
(e) an amount of $2 million is payable by each Party as a result 23
of the termination of the third party contract; 24
(f) the cost of site restoration is $3 million; 25
63
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 5 (continued)
(g) the long term net littoral transport of sand at the northern 1
portion of Letitia Spit is 500,000 cubic metres per annum; 2
(h) the cost of offshore dredging is $4.43 per cubic metre; 3
4
[Note: the $4.43 is based on the Joint Consultants' Report, 1/3 to
5
nearshore at $3.30 and 2/3 to onshore at $5.00]
(i) NSW dredges the full littoral transport and removes it from 6
the littoral system; 7
(j) suitable sand could be obtained from offshore in perpetuity 8
(which is uncertain); and 9
(k) the cost of obtaining such sand does not escalate in real 10
terms. 11
1.2 The damages recoverable by Queensland at the date of 12
termination would be $21.4 million, calculated as follows: 13
$ million
compensation under clause 19.7(a) 2.0
reasonable site restoration under 3.0 14
clause 19.7(b)
amount applicable under clause 16.4 15
19.7(c)
cost of offshore dredging in 16
perpetuity ($2.216 million @ 7% 17
31.7
p.a.)
less Queensland's share of remaining 15.3 18
net present value of System's
future operating and 19
maintenance ($1 million in 20
14.3
perpetuity @ 7% p.a.)
64
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
SCHEDULE 5 (continued)
future replacement (one half 1
of $8.45 million after 24 2
years, then at 25 year intervals 3
1.0
@ 7% p.a.)
2. QUEENSLAND IN DEFAULT 4
2.1 Assumptions 5
(a) The same assumptions as in 1.1 (a) to (g) of this schedule; 6
(b) the cost of dredging material from the bar and entrance area 7
is $5.00 per cubic metre; and 8
(c) the sand is placed on the downdrift beaches and is not sold. 9
2.2 The damages recoverable by NSW at the date of termination 10
would be $25.4 million, calculated as follows: 11
$ million
compensation under clause 19.7(a) 2.0
reasonable site restoration under 3.0 12
clause 19.7(b)
amount applicable under clause 20.4 13
19.7(c)
cost of maintaining a Clear 35.7 14
Navigation Channel in perpetuity 15
($2.5 million @ 7% p.a.)
less NSW's share of remaining net 15.3 16
present value of System's
future operating and 14.3 17
maintenance ($1 million in 18
perpetuity @ 7% p.a.)
future replacement (one half 1.0 19
of $8.45 million after 24 20
years, then at 25 year intervals 21
@ 7% p.a.)
65
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 1--DEED OF AGREEMENT (continued)
IN WITNESS OF WHICH this Agreement has been respectively signed 1
for and on behalf of the Parties on the date first set out above. 2
SIGNED and SEALED for and on behalf ) 3
of the STATE OF NEW SOUTH WALES ) 4
by the Honourable Ian Armstrong, ) Ian Armstrong (sgd) 5
Deputy Premier and ) 6
Minister for Public Works ) 7
in the presence of: ) 8
9
Witness ) DM Beck. (sgd) 10
Name of Witness (print) ) DON BECK 11
12
13
SIGNED and SEALED for and on behalf ) 14
of the STATE OF QUEENSLAND ) Molly Robson (sgd) 15
by the Honourable Molly Robson, ) 16
Minister for Environment and Heritage ) 17
in the presence of: ) 18
19
Witness ) D.G. McGreevy.(sgd) 20
Name of Witness (print) ) D.G. McGREEVY 21
22
66
Tweed River Entrance Sand Bypassing Project
Agreement
CHEDULE 2 1
¡S
HEADS OF AGREEMENT 2
section 2, definition "heads of agreement" 3
HEADS OF AGREEMENT 4
BETWEEN 5
THE STATE OF NEW SOUTH WALES 6
and 7
THE STATE OF QUEENSLAND 8
RELATING TO THE 9
TWEED RIVER ENTRANCE SAND BYPASSING 10
PROJECT 11
12
67
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
HEADS OF AGREEMENT 1
RELATING TO THE 2
TWEED RIVER ENTRANCE SAND BYPASSING PROJECT 3
CONTENTS 4
1.0 PREAMBLE 5
2.0 INTENTIONS 6
3.0 THE PROJECT 7
4.0 MANAGEMENT 8
4.1 General 9
4.2 Working Group 10
4.3 Advisory Committee 11
4.4 Community Input 12
4.5 Deed of Agreement 13
4.6 Initiation 14
5.0 SCOPE OF WORKS 15
5.1 Initial Dredging 16
5.2 Permanent Bypass 17
5.3 Timing of the Project 18
6.0 FINANCE AND COSTING 19
6.1 Cost Estimate 20
6.2 Cost Sharing 21
6.3 Royalties, Land Rent and Acquisition Costs 22
6.4 Accounting Arrangements 23
6.5 Contributions to Project from Third Parties 24
6.6 Operation, Maintenance, Replacement and Contingency 25
Funding 26
7.0 CONTRACTS, PROCUREMENT SYSTEM AND 27
IMPLEMENTATION 28
8.0 DISPUTES RESOLUTION 29
30
Attachment A NET PRESENT VALUE OF SAND BYPASS 31
SYSTEM 32
33
68
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
This Heads of Agreement is made on 31.3.1994 between the State of New 1
South Wales and the State of Queensland. 2
1.0 PREAMBLE 3
4
The Governments of New South Wales and Queensland ("the States") 5
recognise the importance of the Gold Coast-Tweed Heads region as a 6
major international and national tourism destination, a significant growing 7
recreational and residential area, and a unique coastal environment. 8
The region is the destination for more than 500,000 visits annually by 9
overseas arrivals and makes a substantial contribution to Australia's exports 10
of services. The Gold Coast/Tweed is a major destination for the 2.3 11
million overseas visitors who visit Australia annually. 12
In seeking to maintain and enhance the attributes of this region, specifically 13
the Tweed River estuary and the southern Gold Coast beaches ("the 14
Beaches"), NSW has broadly defined its objective as establishing and 15
maintaining an improved navigable entrance to the Tweed River ("the 16
River"), and Queensland has broadly defined its objective as achieving a 17
continuing supply of sand together with the supply of an initial quantity of 18
sand to the Beaches to restore amenity. 19
The States have undertaken a number of investigations to improve the 20
understanding of this complex environment, and have implemented a 21
number of projects to restore and enhance the area, including those 22
undertaken by, and/or in co-operation with, local councils. 23
To aid the realisation of a means of achieving their respective objectives, the 24
States commissioned a report entitled "Tweed River Entrance-NSW/QLD 25
Sand Transfer Negotiations" by WBM Pty Ltd, The University of 26
Queensland and Australian Water and Coastal Studies Pty Ltd, May, 1991, 27
("the Joint Consultants' Report") and noted its contents. 28
The Premiers of NSW and Queensland ("the Premiers") then exchanged 29
letters on this matter between 11th October, 1991 and 27th January, 1994. 30
The Director-General of NSW Premier's Department wrote to his 31
Queensland counterpart on 7th September, 1992 and the Premiers wrote to 32
69
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
the Prime Minister on 23rd July, 1993. 1
The States have agreed in principle to the future development and 2
implementation of a joint operation to achieve their respective objectives and 3
to that intent have agreed to enter into this Heads of Agreement as a 4
preliminary step to the formalisation of their respective rights and 5
obligations in connection with a project to be known as the Tweed River 6
Entrance Sand Bypassing Project ("the Project"). 7
8
A Cost Benefit Analysis undertaken for the NSW Government from an 9
inter-State perspective indicated that the Project has a Benefit Cost Ratio of 10
2.4. Benefits from an overall community viewpoint include improvements 11
in tourism expenditure, development potential, entrance safety, recreational 12
activities and flood mitigation compared with the "Do Nothing" case. 13
2.0 INTENTIONS 14
In recognition of the benefits, the States enter this Project in a spirit of 15
goodwill and co-operation. 16
This Heads of Agreement is not intended to create legal relations but the 17
parties undertake to exercise their best endeavours to develop and 18
implement the Project. 19
3.0 THE PROJECT 20
The States hereby agree to the development and implementation of the 21
Project which comprises two inter-related components, namely: 22
(a) an initial dredging of the Tweed Bar and entrance area and the 23
nourishment of the Beaches; and 24
(b) an artificial sand bypassing system, to operate in perpetuity. 25
The Project is derived from the Joint Consultants' Report and includes items 26
listed in the first column of Table C1 of that report. 27
The Project is designed to satisfy the objectives of the States as defined in 28
the Joint Consultants' Report. These objectives are: 29
70
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
NSW 1
"To establish and maintain a navigable depth of water of at least 3.5 m 2
below ISLW in the approach to and within the entrance channel over a 3
width equal to that between the rubble mound breakwaters". 4
Queensland 5
"To achieve a continuing supply of sand to the southern Gold Coast 6
beaches at a rate consistent with littoral drift rates updrift and downdrift 7
of those beaches, together with the supply of such additional sand to 8
the beaches as is required to restore the recreational amenity of the 9
beaches and maintain it." 10
The States acknowledge that the Project is unique and without precedent. It 11
is located on an open high-energy coastline subject to variable natural 12
forces, in a highly-valued environment, subject to intensive usage. 13
Accordingly, it is recognised that the Project must be designed, evaluated 14
and implemented prudently and in an environmentally sensitive way, if the 15
long-term benefits are to be effectively achieved. 16
The general benefits are anticipated to include: 17
(a) the improvement in the safety of navigation of the River entrance 18
with the consequent benefits to recreational boating, tourism, 19
property values and the fishing industry; 20
(b) improved tidal flushing of the River estuary, improving water 21
quality, mitigation of flooding, and enhancing development 22
potential; and 23
(c) the restoration, widening and long-term maintenance of the 24
Beaches, with associated benefits to tourism, recreation, property 25
values and the reduction of erosion threats. 26
The States hereby agree that neither will undertake activities which are 27
detrimental to or compromise the securing of the other's objectives. 28
71
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
4.0 MANAGEMENT 1
4.1 General 2
Responsibility for implementation of the Project rests with the NSW 3
Minister for Public Works and the Queensland Minister for Environment 4
and Heritage or their respective successors. 5
The two Ministers will be responsible for implementing the project in 6
accordance with the cumulative intent of the letters referred to in Clause 1.0, 7
this Heads of Agreement and the Deed of Agreement which will be 8
produced after this Heads of Agreement is executed. Where there is any 9
inconsistency between the letters and this Heads of Agreement the Heads of 10
Agreement shall prevail. 11
In order to implement the Project, the Ministers may use the officers and 12
resources of NSW Public Works and Queensland Department of 13
Environment and Heritage. They may also delegate authority to officers of 14
those Departments. 15
To ensure that there is close liaison and co-operation and to ensure the 16
efficient and effective delivery of the Project a Working Group will be 17
formed. The Working Group will be responsible to both Ministers. 18
In addition, the Ministers will be advised by an Advisory Committee. 19
4.2 Working Group 20
The Working Group will comprise three members from each State to be 21
nominated by the respective Minister. At the Ministers' discretion one 22
member from each State may be chosen to represent the relevant local 23
government authority. 24
The Working Group will be responsible for implementing the Project 25
including strategic action planning, financial control, policy setting and 26
review at State Government level. 27
4.3 Advisory Committee 28
The Advisory Committee will comprise two officers from each State to be 29
72
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
nominated by the respective Minister, one representative each from Tweed 1
Council and Gold Coast City Council to be nominated by the respective 2
Council and four community representatives (two from each State) to be 3
nominated by the respective Minister. At least one of the State Government 4
officers from each State on the Advisory Committee must also be a 5
member of the Working Group. 6
The Advisory Committee will give advice on the following: 7
· Preparation of environmental impact assessment and tender 8
documents for the bypass. 9
· Calling tenders. 10
· Acceptance of tenders. 11
· Preparation of a plan of management. 12
· Management and implementation of the works. 13
· Issues of relevance to the local community. 14
· Other matters referred to it by the Ministers. 15
4.4 Community Input 16
Both States acknowledge the importance of community input to the Project 17
through its various stages and steps will be taken to ensure that such 18
consultation is incorporated. 19
4.5 Deed of Agreement 20
The responsibility for preparation of the proposed Deed of Agreement will 21
rest with the Ministers or their delegates. 22
4.6 Initiation 23
Notwithstanding the provisions of Clause 2.0, if the States decide to 24
implement the Project or part thereof prior to execution of the Deed of 25
Agreement the Project or that part of the Project will proceed in accordance 26
73
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
with this Heads of Agreement, to the intent that if any contract is entered 1
into with any third party for the purposes of the Project and both Ministers 2
first approve in writing of the terms of the contract, then, as between the 3
States the provisions of this Heads of Agreement that are applicable to such 4
a contract (including the proportional funding arrangements) shall to that 5
extent be legally binding upon the States. 6
5.0 SCOPE OF WORKS 7
The Project shall consists of two parts, namely, the Initial Dredging 8
component and the Permanent Bypass component. 9
5.1 Initial Dredging 10
The Initial Dredging component shall involve dredging from the River 11
entrance bar and possibly other areas of two million cubic metres of sand 12
and the placement of that material on the Beaches (including the nearshore 13
zone and/or upper beach). This dredging may take place in parts. 14
The purpose of this dredging is to achieve an improvement in navigation of 15
the River entrance and to nourish the Beaches. 16
5.2 Permanent Bypass 17
The Permanent Bypass component consists of the design, manufacture, 18
supply, delivery and commissioning of a sand bypassing system and the 19
continuing operation of that system including replacement of the capital 20
equipment. 21
The system will need to be designed and operated in a way which generally 22
achieves the objectives of the two individual States as defined in Clause 3.0. 23
The purpose of the bypass is to facilitate the natural littoral sand movement 24
processes. In general terms it should convey the net littoral transport which 25
occurs at the northern portion of Letitia Spit in the absence of actions to 26
influence it. 27
The Bypass system will deliver sand to the Beaches generally in accordance 28
with the Joint Consultants' Report ie; Duranbah Beach (minor quantity 29
74
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
capability) Snapper Rocks (major quantity capability) and Kirra Point (on 1
demand capability). 2
Some allowance will have to be made for sand which is not captured by the 3
bypass system before it reaches the Tweed entrance or which is lost from 4
the natural system before it reaches the Beaches. 5
This long term average net littoral transport rate is currently understood to 6
be 500,000 m3 per year (page 8 of the Joint Consultants' Report), but 7
analysis to date suggests that it can vary between 270,000 m3 and 8
900,000 m 3 in any individual year. 9
The States will agree on a system for managing the delivery of sand to 10
match the long term average net littoral transport, but which will take 11
account of the annual variations with regard to quantities of sand delivered 12
by natural processes to Letitia Spit, and which will also take account of the 13
specific objectives of both States. 14
If the long term average net littoral transport rate changes, the rate of 15
delivery will be changed accordingly. 16
This system will have to take account of coastal process issues as they relate 17
to the Beaches, the River entrance, Duranbah Beach and to Letitia Spit, as 18
well as to beach usage criteria and navigation requirements. 19
It is recognised that sand will continue to accrete in NSW until the bypass is 20
operational. Accordingly, the total quantity of sand transported to 21
Queensland in the first five years of bypassing system operation shall be 22
increased above the agreed rate of 500,000 m3 per year to take account of (i) 23
ongoing sand accumulation within NSW prior to the initial dredging and (ii) 24
the amount of material which is deposited on the bar of the River in the 25
period between the completion of the initial dredging and the 26
commencement of the bypass operation. The total quantity in (i) is accepted 27
to be 550,000 m3 ; the total quantity in (ii) will be the difference in quantities 28
based on the post initial dredging survey and a repeat survey immediately 29
prior to the bypass being operational. 30
Consideration needs to be given to variations to the figure in (i) above to 31
take account of any variation which may arise due to dredging of the River 32
75
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
which may take place before Initial Dredging and in (ii) for any net 1
transport into the estuary between the dates of the surveys. 2
5.3 Timing of the Project 3
The States agree that the Project should be implemented expeditiously. It is 4
recognised that there are distinct technical advantages in having the Initial 5
Dredging take place concurrently with the commissioning of the sand 6
bypassing system. However, it is accepted that there are broader 7
advantages in carrying out the Initial Dredging as soon as possible and as a 8
compromise the Initial Dredging should be undertaken at the earliest 9
possible date and the interval between the Initial Dredging and the 10
commissioning of the bypass should be the minimum possible. (It is 11
envisaged that contracts will be let for the Initial Dredging in late 1994 and 12
that the bypass will be operational by 1996). 13
6.0 FINANCE AND COSTING 14
6.1 Cost Estimate 15
In the correspondence between officers of the States it was accepted that for 16
the purpose of determining the ratios for the sharing of costs of the Project, 17
the following estimates, based on papers C and D of the Joint Consultants' 18
Report, were adopted: 19
$ million
(1990 dollar terms)
(i) Initial sand supply* (based on 10.0 20
2 M m 3)
(ii) Establishment cost of first system 13.5 21
(based on a jack up platform)
(iii) Operating cost (including 1.96 p.a. 22
maintenance, monitoring)
(iv) Platform/Trestle Replacement cost 8.45
76
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
* The Initial sand supply will be achieved by the Initial Dredging. 1
Similarly, in Net Present Value terms, it was accepted that the total cost 2
estimate of the project is $53.41 million in 1990 dollar terms. Actual costs 3
will not be known until after tenders are received or operation commences 4
depending on the type of tenders accepted. A table illustrating the derivation 5
of this estimate is set out in Attachment A. 6
6.2 Cost Sharing 7
Notwithstanding anything in Clause 6.1 the States agree that the final actual 8
costs of the project will be shared as follows: 9
NSW QUEENSLAND
(%) (%)
Initial sand supply* 75 25
Establishment cost of 75 25 10
first sand bypass system
Operating cost 50 50 11
(including maintenance, 12
monitoring)
P l at f o r m/ T r e st l e 50 50 13
Replacement cost
* The Initial sand supply will be achieved by the Initial Dredging. 14
In the event that payment for the Initial sand supply and/or the 15
Establishment cost of the first bypass system is not made by means of 16
upfront capital, but is incorporated in a recurrent payment per unit of sand 17
supplied, the contribution by each State to the recurrent unit charge will 18
adequately take account of their relative contributions, as defined above, to 19
the Initial sand supply and/or Establishment cost of the first system. 20
6.3 Royalties, Land Rent and Acquisition Costs 21
The States agree in principle that any sand royalties levied by either State 22
77
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
which could apply to the sand which, for the purposes of this project, is 1
transferred between the States, will not apply or shall be waived. 2
The issue of possible mineral extraction and any royalty or income 3
therefrom has been excluded from this document and will be addressed 4
separately should the matter arise. 5
The States agree in principle that where the use and occupation of land is 6
necessary for the Project, no charges are to be made or imposed for land 7
rent or land acquisition costs as the case may be, in respect of land owned 8
or held by the States or either State. Similarly no charges are to be made or 9
imposed for land rent in respect of land acquired for the Project from any 10
third party. As between the States, any compensation which may be 11
payable for land acquired for the Project from any third party shall be a 75% 12
NSW: 25% Queensland shared cost of the Project. 13
6.4 Accounting Arrangements 14
The States acknowledge that procedures satisfactory to both parties will be 15
implemented to ensure that each State meets the agreed share of the final 16
actual cost of the Project. 17
The accounting and audit procedures implemented must satisfy the public 18
accountability and administration requirements of each State for the funding 19
of infrastructure. 20
6.5 Contributions to Project from Third Parties 21
The States agree that any moneys contributed to the Project by parties other 22
than the Queensland Government, the NSW Government, or local 23
government in the States ("Third Party Contributions") shall be accounted 24
for in the following manner: 25
· Where the Third Party Contributions are contributed for a particular 26
part of the work, those Third Party Contributions will be deducted 27
from the total cost of the part for which they were contributed and the 28
remaining costs of that part will be shared as described under the 29
heading "Cost Sharing" above. 30
78
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
· Where the Third Party Contributions are not contributed for a 1
particular part, the amount of such Third Party Contributions shall be 2
deducted from the total outstanding cost of the part then currently 3
under way ("the Current Part") and the remaining costs of that part 4
will be shared as described in Clause 6.2. If the amount exceeds the 5
total outstanding cost of the Current Part, the remainder shall be 6
deducted from the total outstanding cost of the next and successive 7
parts in turn. In the context of this paragraph the three parts of the 8
Project are (i) the Initial Dredging, (ii) the establishment of the bypass 9
system and (iii) the operation of the system including replacement. 10
6.6 Operation, Maintenance, Replacement and Contingency 11
Funding 12
The Project involves the operation of the sand bypass system in perpetuity 13
including replacement of the capital equipment as necessary. It is recognised 14
that the costs of the system will vary substantially from year to year due in 15
part to inherently unpredictable variations in the weather, and other related 16
matters. 17
The States agree to meet actual funding needs for works under the 18
provisions of this agreement as they become due including replacement and 19
contingency items. 20
The States recognise there are substantial adverse consequences in the 21
unlikely event of cessation of the Project and provision will be made for 22
such in the Deed of Agreement. 23
7.0 CONTRACTS, PROCUREMENT SYSTEM AND 24
IMPLEMENTATION 25
The States agree that they will act expeditiously and co-operatively to 26
implement the Project in an efficient manner consistent with this Heads of 27
Agreement, including inter alia developing a Deed of Agreement, 28
establishing administrative and legislative arrangements (including 29
introducing legislation in either or both States if necessary) and undertaking 30
design and engineering and necessary statutory and environmental 31
79
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
approvals of both States. 1
Project development will be undertaken jointly by Queensland and NSW. 2
Provisions concerning project risk will be made in the Deed of Agreement. 3
Subject to Clause 4.6 it is envisaged that minor contracts may be let by 4
either State with the other State's interest protected by this Heads of 5
Agreement and the Deed of Agreement. 6
For the bypass system it is envisaged expressions of interest will be called 7
and that the contract(s) will be based on a performance based specification 8
with the expectation that there may need to be pre and post tender 9
negotiations. 10
8.0 DISPUTES RESOLUTION 11
The Project involves an agreement between two sovereign States and in this 12
context dispute resolution should be undertaken in a spirit of cooperation 13
appropriate to this joint venture between two States. 14
It is the intention of the parties to settle amicably by discussion and 15
negotiation at the appropriate level or levels of their respective organisations 16
all disputes arising in relation to this Heads of Agreement. 17
If nevertheless the States are unable to agree upon any matter under or 18
arising out of this Heads of Agreement including matters not covered in the 19
Heads of Agreement but necessary for or incidental to achieving the 20
objectives of the Heads of Agreement, any disagreement will become a 21
Dispute when one party serves written notice on the other party providing 22
details of the disagreement. 23
In the event of a Dispute the States will seek to appoint a suitably qualified 24
person ("the Expert") to advise them what, in the opinion of the Expert, 25
each party should do or pay in order to give effect to the Heads of 26
Agreement or the objectives of the Heads of Agreement. 27
The fees of the Expert will be shared equally between the parties. 28
The Project will continue while any dispute is being resolved. 29
30
80
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
SIGNED on behalf of the State) John Fahey (sgd) 1
of NEW SOUTH WALES by ) ........................................... 2
John Fahey, Premier ) 3
in the presence of: ) 4
5
Don Beck (sgd) 6
..........................................Witness 7
8
DON BECK 9
..........................................Name of 10
Witness 11
(print) 12
13
14
SIGNED on behalf of the State) 15
Wayne Goss (sgd)
of QUEENSLAND by ) 16
.........................................
Wayne Goss, Premier ) 17
in the presence of: )
18
Merri Rose (sgd) 19
..........................................Witness 20
21
MERRI ROSE 22
..........................................Name of 23
Witness 24
(print) 25
26
27
81
Tweed River Entrance Sand Bypassing Project
Agreement
SCHEDULE 2 (continued)
Attachment A 1
NET PRESENT VALUE OF SAND BYPASS SYSTEM 2
($ million, 1990 terms) 3
Jack-up Platform System 4
5
Year 1 25 50 75 100 125 150 175 200 ->
6
Capital costs
7
Initial Sand
8
supply 10
9
Establishment
10
cost of first
11
system 13.5
12
NPV 23.50
13
Platform/trestle
14
replacement 0 8.45* 8.45 8.45 8.45 8.45 8.45 8.45 8.45
15
NPV 1.91
16
Operating cost 1.96 1.96 1.96 1.96 1.96 1.96 1.96 1.96 1.96
17
(per annum)
18
NPV 28.00
19
Total NPV 53.41
20
(7% discount
21
rate)
22
23
Note: Capital cost is "undiscounted", i.e. it is assumed that the full $23.5 m is spent
24
at the beginning of year 1. However, the first year's operating cost is discounted.
25
* $8.45 M is the estimated cost of replacing the jack up platform ($6.5 M) with a
26
contingency allowance of 30%.
82
Tweed River Entrance Sand Bypassing Project
Agreement
© State of Queensland 1997
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