Sydney Harbour Tunnel (Private Joint Venture) Act 1987 (NSW)

Sydney Harbour Tunnel (Private Joint Venture) Act 1987 No 49 An Act to facilitate the construction, maintenance and operation of the Sydney Harbour Tunnel. Part 1 Preliminary 1 Name of Act This Act may be cited as the Sydney Harbour Tunnel (Private Joint Venture) Act 1987. 2 Definitions (1) In this Act: Commissioner means The Commissioner for Main Roads. council has the same meaning as it has in the Local Government Act 1993. regulation means a regulation made under this Act. Sydney Harbour Tunnel means the tunnel authorised by, or constructed under, this Act. (2) In this Act: (a) a reference to tunnelling works is a reference to the works described in Schedule 1, (b) a reference to ancillary works is a reference to the works described in Schedule 2, (c) a reference to the tunnelling site is a reference to the land described in Schedule 3, (d) a reference to an ancillary site is a reference to land described in Schedule 4, (e) a reference to the Ensured Revenue Stream Agreement is a reference to the agreement set out in Schedule 5, and (f) a reference to the Net Bridge Revenue Loan Agreement is a reference to the agreement set out in Schedule 6. (3) In this Act: (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. 3 Act binds Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. Part 2 Construction of the Sydney Harbour Tunnel 4 Tunnelling works etc only to be carried out with the approval of the Commissioner (1) Tunnelling works shall not be carried out on the tunnelling site otherwise than with the approval of the Commissioner. (2) Ancillary works shall not be carried out on an ancillary site otherwise than with the approval of the Commissioner. (3) The Commissioner may modify an approval given under this section, but only at the request of the person to whom the approval was given. 5 Ratification and approval of certain agreements The Ensured Revenue Stream Agreement and the Net Bridge Revenue Loan Agreement are ratified and approved. 6 Commissioner authorised to exercise functions under the Net Bridge Revenue Loan Agreement etc (1) The Commissioner may exercise any functions conferred or imposed on the Commissioner by the Net Bridge Revenue Loan Agreement. (2) The Commissioner may enter into, and may exercise any functions conferred or imposed on the Commissioner by, agreements for the purpose of or in connection with the financing, construction, development, disposition, sale, purchase, lease, licence, ownership, operation, maintenance or management of: (a) the tunnelling works and the ancillary works, (b) the tunnelling site and the ancillary sites (including any rights-of-way or other easements appurtenant to those sites), and (c) the Sydney Harbour Tunnel. 7 Operation of certain agreements (1) Any obligation imposed on the State by the Ensured Revenue Stream Agreement, or on the Commissioner by the Net Bridge Revenue Loan Agreement, being an obligation to make any payment (including any payment in respect of a loan) irrespective of any event or circumstance which otherwise would or might at law: (a) terminate, or permit termination of, the agreement, or (b) excuse compliance with or performance of, or provide a defence to, any proceedings to enforce the obligation, shall operate and be enforceable in accordance with its terms, notwithstanding any provision of the Frustrated Contracts Act 1978 or any other Act or statute or any rule of law to the contrary. (2) Any provision of the Ensured Revenue Stream Agreement or the Net Bridge Revenue Loan Agreement that provides that the agreement shall not be terminated on account of any matter or thing referred to in the agreement and shall be enforceable notwithstanding any such matter or thing: (a) shall operate in accordance with its terms so that the agreement shall not be capable of being terminated except by express agreement between the parties or in the events or circumstances expressly provided for in the agreement, and (b) shall be enforceable in accordance with its terms, notwithstanding any provision of the Frustrated Contracts Act 1978 or any other Act or statute or any rule of law to the contrary. Part 3 Application of legislation to the tunnelling works etc Division 1 The tunnelling works and the tunnelling site 8 Application of Environmental Planning and Assessment Act 1979 (1) For the purposes of this Act, the Environmental Planning and Assessment Act 1979 (Parts 3, 4 and 6 excepted) applies, and shall be deemed always to have applied, to and in respect of the tunnelling works and the tunnelling site, but Parts 3, 4 and 6 of that Act do not apply, and shall be deemed never to have applied, to or in respect of those works or that site. (2) For the purposes of the application of Part 5 of the Environmental Planning and Assessment Act 1979 to and in respect of the tunnelling works and the tunnelling site: (a) the carrying out of the tunnelling works shall be deemed to require, and always to have required, the approval of the Commissioner, (b) the tunnelling works shall be deemed to be, and always to have been, an activity within the meaning of that Part, (c) the Commissioner shall be deemed to be, and always to have been, the sole determining authority, within the meaning of that Part, with respect to the tunnelling works, (d) the documents entitled "Sydney Harbour Tunnel Environmental Impact Statement" and "Sydney Harbour Tunnel Environmental Impact Statement Addendum" which were both put on public display on 19 December 1986 shall together be deemed to be, and always to have been, an environmental impact statement that: (i) has been prepared, submitted, exhibited, considered and otherwise dealt with in accordance with that Part, and (ii) complies with the requirements of that Part, and (e) an approval that has been given by the Commissioner and that has been subsequently modified shall not, merely because it has been modified, be deemed to be a new approval. (3) Subsection 2 (e) shall not be construed as granting to the Commissioner any power to modify an approval that the Commissioner does not otherwise have any power to modify. 9 Application of other legislation (1) The provisions of: (a) the Coastal Protection Act 1979 and any instrument in force under that Act, and (b) the Local Government Act 1993, and any instrument in force under that Act, in relation to buildings, do not apply to or in respect of the tunnelling works. (2) The tunnelling works may be carried out notwithstanding anything in: (a) the Royal Botanic Gardens and Domain Trust Act 1980, (b) the Sydney Opera House Trust Act 1961, (c) the Crown Lands Consolidation Act 1913, (d) the Government Railways Act 1912, or (e) any instrument in force under any of those Acts. (3) Except to the extent that the regulations otherwise provide and subject to any modifications specified in the regulations, the provisions of: (a) the Maritime Services Act 1935, (b) the Sydney Harbour Trust Act 1900, and (c) any instrument in force under any of those Acts, do not apply to or in respect of the tunnelling works. Division 2 The ancillary works and the ancillary sites 10 Application of Environmental Planning and Assessment Act 1979 (1) For the purposes of this Act, the Environmental Planning and Assessment Act 1979 (Parts 3, 4 and 6 excepted) applies to and in respect of the ancillary works and the ancillary sites, but Parts 3, 4 and 6 of that Act do not apply to or in respect of those works or those sites. (2) For the purposes of the application of Part 5 of the Environmental Planning and Assessment Act 1979 to and in respect of the ancillary works and the ancillary sites: (a) the carrying out of the ancillary works shall be deemed to require the approval of the Commissioner, (b) the ancillary works shall be deemed to be an activity within the meaning of that Part, (c) the Commissioner shall be deemed to be the sole determining authority, within the meaning of that Part, with respect to the ancillary works, and (d) an approval that has been given by the Commissioner and that has been subsequently modified shall not, merely because it has been modified, be deemed to be a new approval. (3) Subsection (2) (d) shall not be construed as granting to the Commissioner any power to modify an approval that the Commissioner does not otherwise have any power to modify. 11 Application of other legislation (1) The provisions of: (a) the Coastal Protection Act 1979 and any instrument in force under that Act, and (b) the Local Government Act 1993, and any instrument in force under that Act, in relation to buildings, do not apply to or in respect of the ancillary works. (2) Except to the extent that the regulations otherwise provide and subject to any modifications specified in the regulations, the provisions of: (a) the Maritime Services Act 1935, (b) the Sydney Harbour Trust Act 1900, and (c) any instrument in force under any of those Acts, do not apply to or in respect of the ancillary works. Part 4 Miscellaneous 12 Vesting of land etc in the Commissioner (1) On the date of assent to this Act, the land shown: (a) coloured yellow, or (b) hatched green with green edging, on the plan referred to in Schedule 3 vests in the Commissioner for an estate in fee simple, freed and discharged from any trusts, obligations, estates, interests, contracts, charges, rates, rights-of-way or other easements existing immediately before that date. (2) On the date of assent to this Act, an easement to drain water (within the meaning of section 88A of the Conveyancing Act 1919) is created in favour of the Commissioner in respect of the land shown coloured brown on the plan referred to in Schedule 3. (3) A person is not entitled to receive compensation from the Commissioner as a consequence of: (a) land having vested in the Commissioner by operation of subsection (1), or (b) the easement to drain water having been created in favour of the Commissioner by operation of subsection (2). (4) If, after the date of assent to this Act, Schedule 3 is amended in such a manner as to include land within the tunnelling site that previously was not part of that site, the Governor may, by proclamation published in the Gazette, declare that the whole or any part of that land shall be vested in the Commissioner. (5) Upon publication of a proclamation under subsection (4), the land described in the proclamation shall vest in the Commissioner for an estate in fee simple, freed and discharged from any trusts, obligations, estates, interests, contracts, charges, rates, rights-of-way or other easements existing immediately before the publication of the proclamation. (6) A person (other than the Crown, a person representing the Crown or a council) is entitled to receive compensation from the Commissioner as a consequence of land having vested in the Commissioner by operation of subsection (5). (7) A claim for compensation under subsection (6) shall be dealt with as if it were a case in which a claim had been made because of the acquisition of land for public purposes under the Public Works Act 1912 by notification published in the Gazette, and the Land and Environment Court has jurisdiction accordingly. 13 Revesting of land in previous owners (1) The estate in fee simple of the land vested in the Commissioner by operation of section 12 (other than land in respect of which compensation has been paid as referred to in section 12 (7)) shall not be disposed of otherwise than in the manner prescribed by this section. (2) The Governor may, by proclamation published in the Gazette, declare that any part of the land vested in the Commissioner by operation of section 12 shall be revested in the person in whom that part of the land was vested immediately before the land was so vested in the Commissioner. (3) Such a declaration may not be made in respect of any land the subject of a lease or licence entered into under an agreement referred to in section 6 (2) otherwise than in accordance with the terms of any such lease or licence. (4) Upon publication of a proclamation under subsection (2), the land described in the proclamation shall vest in the person specified therein for an estate in fee simple, subject to all trusts, obligations, estates, interests, contracts, charges, rates, rights-of-way and other easements then existing. (5) The Commissioner is not entitled to receive compensation from any person as a consequence of land having vested in that person by operation of subsection (4). (6) In this section, a reference to a person in whom land was vested immediately before the land was vested in the Commissioner by operation of section 12 is, in the case of a person who has ceased to exist, a reference to such other person as, in the opinion of the Commissioner, is the appropriate person in whom the land should be vested. 14 Sydney Harbour Tunnel not a public road or road or road related area (1) The Sydney Harbour Tunnel is not a public road or a road or road related area for the purposes of: (a) the Roads Act 1993, or (b) any other Act or law prescribed by the regulations for the purposes of this paragraph. (2) The provisions of the road transport legislation within the meaning of the Road Transport Act 2013 apply to and in respect of the Sydney Harbour Tunnel as if it were a road or road related area. 15 Protection of Sydney Harbour Tunnel from other development (1) Any person who intends to carry out development on any land along or adjacent to the course of the tunnelling works or the Sydney Harbour Tunnel shall, before commencing the development, advise the Commissioner of the intended development. (2) Whether or not the Commissioner has been advised of any such intended development, that development shall, if the Commissioner, by written notice served on the person intending to carry out the development, imposes reasonable conditions on the carrying out of the development which are related to the protection of the tunnelling works or the Sydney Harbour Tunnel, be carried out in accordance with those conditions. (3) A notice under subsection (2) shall not be served except with the consent of the Minister. (4) Nothing in this section affects any requirement relating to the carrying out of development imposed by or under the Local Government Act 1993, the Environmental Planning and Assessment Act 1979 or any other Act. (5) In this section: development means: (a) the erection of a building, (b) the demolition of a building, or (c) the carrying out of a work, within the meaning of the Environmental Planning and Assessment Act 1979. 16 Directions to councils (1) If the Minister is satisfied that a council has exercised, or failed to exercise, a function conferred or imposed on it by or under any Act or law in a manner that is substantially and unreasonably prejudicial to: (a) the carrying out of the tunnelling works, or (b) the carrying out of the ancillary works, the Minister may give to the council such directions as the Minister considers appropriate. (2) A direction under this section shall not be given to a council unless the Minister: (a) has notified the council and the Minister for Local Government that the Minister proposes to give such a direction, and (b) has taken into consideration any representations made to the Minister by the council and the Minister for Local Government, within 7 days of such notification having been given, with respect to the giving of such a direction. (3) The Minister may revoke a direction given under this section. (4) A council shall comply with, and is by this Act empowered to comply with, a direction given under this section. 17 Limitation of appeals (1) No proceedings (whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief) shall lie in respect of: (a) any decision by the Commissioner to grant approval to or in respect of the carrying out of the tunnelling works or the ancillary works, (b) any condition imposed, or any modification required, by the Commissioner under section 112 of the Environmental Planning and Assessment Act 1979 in respect of the tunnelling works or the ancillary works, (c) any alleged contravention of or failure to comply with any such condition or modification, (d) any decision, proceeding, step or other matter (including any consideration of the tunnelling works or the ancillary works under section 111 of the Environmental Planning and Assessment Act 1979) involved in the granting of any such approval, the imposition of any such condition or the requirement of any such modification, or (e) any alleged contravention of or failure to comply with the provisions of Part 5 of the Environmental Planning and Assessment Act 1979 with respect to the tunnelling works or the ancillary works. (2) This section has effect notwithstanding that any such proceedings were commenced before the date of assent to this Act, and has effect notwithstanding any decision in any such proceedings. (3) Any such proceedings pending in any court immediately before the date of assent to this Act are terminated. (4) Except in so far as the parties to any such proceedings (being proceedings pending immediately before the date of assent to this Act) otherwise agree, the costs of or incidental to the proceedings incurred by a party to the proceedings shall be borne by the party, and shall not be the subject of any contrary order of any court. (5) This section does not apply to proceedings taken by or on behalf of the Commissioner. (6) In this section: approval includes: (a) a consent, licence or permission or any form of authorisation, and (b) a provision of financial accommodation by the Commissioner to another person, not being a provision of such financial accommodation, or financial accommodation of such class or description, as may be prescribed by the regulations for the purposes of this paragraph. 18 Variation of the tunnelling site (1) The Governor may, by regulation, amend Schedule 3: (a) by omitting any matter from that Schedule, (b) by inserting in that Schedule any matter which describes any land that is, in the opinion of the Minister, necessary for inclusion within that Schedule for the purpose of enabling the Sydney Harbour Tunnel to be constructed in accordance with this Act, or (c) by altering any matter contained in that Schedule. (2) The Governor may, by regulation, omit Schedule 3 and insert instead a Schedule which describes any land that is, in the opinion of the Minister, necessary for inclusion within that Schedule for the purpose of enabling the Sydney Harbour Tunnel to be constructed in accordance with this Act. (3) Such a regulation may not be made in contravention of the terms of any lease or licence entered into under an agreement referred to in section 6 (2). 19 Variation of the ancillary sites (1) The Governor may, by regulation, amend Schedule 4: (a) by omitting any matter from that Schedule, (b) by inserting in that Schedule any matter which describes any land that is, in the opinion of the Minister, necessary for inclusion within that Schedule for the purpose of enabling the Sydney Harbour Tunnel to be constructed in accordance with this Act, or (c) by altering any matter contained in that Schedule. (2) The Governor may, by regulation, omit Schedule 4 and insert instead a Schedule which describes any land that is, in the opinion of the Minister, necessary for inclusion within that Schedule for the purpose of enabling the Sydney Harbour Tunnel to be constructed in accordance with this Act. (3) Such a regulation may not be made in contravention of the terms of any lease or licence entered into under an agreement referred to in section 6 (2). 19A Savings and transitional provisions Schedule 7 has effect. 20 Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. Schedule 1 The tunnelling works (Section 2) 1 Works carried out on the tunnelling site for or associated with the construction, maintenance and operation of a tunnel beneath Sydney Harbour. 2 The location and establishment of new services and the re-location and re-establishment of existing services rendered necessary by the carrying out of the works referred to in item 1 of this Schedule. 3 Such works for the protection of the environment as the Commissioner may consider desirable or necessary as a consequence of the carrying out of any of the works referred to in item 1 of this Schedule. 4 Works the use of which is ancillary or incidental to any of the works referred to in the other items of this Schedule. Schedule 2 The ancillary works (Section 2) 1 Works carried out on an ancillary site for or associated with the fabrication of components for use in connection with the tunnelling works. 2 Works carried out on an ancillary site for or associated with the extraction, transport or storage of materials for use in connection with the tunnelling works. 3 The location and establishment of new services and the re-location and re-establishment of existing services rendered necessary by the carrying out of the works referred to in items 1 and 2 of this Schedule. 4 Such works for the protection of the environment as the Commissioner may consider desirable or necessary as a consequence of the carrying out of any of the works referred to in items 1 and 2 of this Schedule. 5 Works the use of which is ancillary or incidental to any of the works referred to in the other items of this Schedule. Schedule 3 The tunnelling site (Section 2) All that piece or parcel of land shown by distinctive colouring, edging or hatching on the plan entitled "Plan of Land Required for Proposed Sydney Harbour Tunnel", and numbered 0000 412 SS 0586, a copy of which is sealed with the seal of the Commissioner and deposited in the office of the Department of Main Roads. Schedule 4 The ancillary sites (Section 2) All that piece or parcel of land shown coloured blue on the plan entitled "The Port Kembla Casting Basin Allotment Plan", and numbered 0000 497 SS 0587, a copy of which is sealed with the seal of the Commissioner and deposited in the office of the Department of Main Roads. Land that is the subject of a lease (including a concurrent lease) to the private sector under the Ports Assets (Authorised Transactions) Act 2012 is excluded from this Schedule. Schedule 5 The Ensured Revenue Stream Agreement (Section 5) THIS AGREEMENT is made the 29th day of June, 1987, BETWEEN 1. THE HONOURABLE LAURENCE JOHN BRERETON Minister for Public Works and Ports and Minister for Roads for and on behalf of HER MAJESTY QUEEN ELIZABETH THE SECOND IN RIGHT OF THE STATE OF NEW SOUTH WALES (the "Crown"); and 2. SYDNEY HARBOUR TUNNEL COMPANY LIMITED, a company incorporated in the State of New South Wales with its registered office at 100 Arthur Street, North Sydney (the "Company"). WHEREAS: A. Pursuant to obligations contained in the Lease the Company has agreed to design, construct and operate the Tunnel. B. In consideration of the Company agreeing to design, construct and operate the Tunnel, the Crown has agreed to make the payments set out in this Agreement to the Company to enable the Company to meet financial obligations in connection with the operation of the Tunnel and the payment of principal and interest upon moneys borrowed by it for the design, construction and operation of the Tunnel. NOW THIS AGREEMENT WITNESSES as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions When used in this Agreement the following terms shall have the following meanings unless the context otherwise requires: "Bridge Toll Collection Costs" means the sum of $600,000 multiplied by a fraction the numerator of which is the CPI for the calendar quarter immediately preceding the calculation and the denominator of which is the CPI for the quarter ending 30th June 1986. "Business Day" means any day on which trading banks are open for business in Sydney. "Commissioner" means the Commissioner for Main Roads. "CPI" means: (i) the "Weighted Average of Eight Capital Cities: All Groups Consumer Price Index" published quarterly by the Australian Bureau of Statistics as long as there is no change in the coverage, periodicity or reference base from that applying at the date of this Agreement; (ii) if such Index is published and there is a change in coverage and the Index is linked to previous CPI's, such Index shall be the CPI; (iii) if such Index is revised to a new base and a conversion factor to apply to the old Index to make it comparable with the new Index is provided, then the conversion factor shall be applied to all previous CPI's as published or otherwise revised in terms of this Agreement to calculate revised CPI's in terms of the new reference base; (iv) if such Index is revised to a new base and a conversion factor to apply to the old Index to make it comparable with the new Index is not provided then the President of the Institute of Actuaries of Australia (or, if such Institute has ceased to exist, such other institute or body as then carries on the functions of such Institute), or his nominee, acting as an arbitrator (the "Arbitrator") shall be called upon to calculate revised CPI's for all CPI's as published or otherwise revised in terms of this Agreement and the Arbitrator's determination shall be conclusive; (v) if such Index is published but: (A) there is a change in coverage and the Index is not linked to previous CPI's; or (B) there is a change in periodicity, then the Arbitrator shall be called upon to decide whether such Index is appropriate as a general indicator of the rate of price change for consumer goods and services in the capital cities of Australia or, if it is not, what other index shall be used as a substitute index for the purpose of calculating the payments due under this Agreement and the Arbitrator's determination shall be conclusive; (vi) if there is a cessation in the publication of such Index and the Australian Bureau of Statistics publishes another Index which it states to be in replacement of such Index and the replacement Index is linked to old CPI's then all CPI's relevant to this Agreement shall be recalculated to the same reference base as the replacement Index; (vii) if there is a cessation in the publication of such Index and the Australian Bureau of Statistics publishes another Index which it states to be in replacement of such Index but the replacement Index is not linked to old CPI's then the Arbitrator shall be called upon to calculate revised CPI's for all previous CPI's as published or otherwise revised in terms of this Agreement and the Arbitrator's calculation shall be conclusive; (viii) if there is a cessation in the publication of such Index and the Australian Bureau of Statistics does not publish another Index in replacement of such Index then the Arbitrator shall be called upon to provide an index which he determines to be appropriate as a general indicator of the rate of price change for consumer goods and services in the capital cities of Australia and the Arbitrator's determination shall be conclusive. "Environmental Impact Determination" means the determinations of the Commissioner dated 29th May 1987 and made under the Sydney Harbour Tunnel (Private Joint Venture) Act 1987 and Part V of the Environmental Planning and Assessment Act 1979 in respect of the works referred to in Schedules 1 and 2 to the Sydney Harbour Tunnel (Private Joint Venture) Act 1987. "ERS Toll" means: (i) from 1st September, 1992 until 30th June, 1993 inclusive—$1.00; (ii) from 1st July, 1993 until 30th June, 2015 inclusive—$1.03; and (iii) from 1st July, 2015 until 31st August, 2022—88 cents. "Immersed Tube Section of the Tunnel" means the eight pre-cast concrete segments of the Tunnel to be constructed in the dry dock situated on the land described in Schedule 4 to the Sydney Harbour Tunnel (Private Joint Venture) Act 1987 and to be placed on the bed of Port Jackson. "Joint Venturers" means each of Transfield (SHTJV) Pty. Limited and Kumagai Gumi Co., Ltd. and "Joint Venturer" means either one of them. "Lease" means the Lease dated the date of this Agreement between the Commissioner and the Company. "Mortgagee" means any holder of a first ranking Security Interest over this Agreement who gives notice to the Crown pursuant to Clause 6. "Notional Crew" means a notional representative labour force comprising one of each of the following classifications subject to the following awards respectively (except that if any one or more of the nominated awards do not apply to the particular classification then such award as is applicable to that classification shall apply): Classification Award Electrician (Licensed) Electricians and C State Award Mechanic (Tradesman) Metal Industry Award Painter National Building Trades Construction Award Clerk Grade 1 Clerks (State) Award. "Projected Traffic Volume" means during each of the periods set out in Schedule 1, one quarter of the figure set out in the right hand column. "Relevant Company" means any party to a Relevant Document other than the Crown, the Commissioner, Perpetual Trustee Company Limited, Westpac Banking Corporation and the party providing the Performance Bond. "Relevant Document" means each of: (a) this Agreement; (b) the Net Bridge Revenue Loan Agreement dated the date of this Agreement between the Commissioner and the Company; (c) the Trust Deed dated the same date as this Agreement under which the Company has granted a charge in favour of Perpetual Trustee Company Limited; (d) the Deed of Covenant between ACTL Holdings Pty. Limited, Kumagai Gumi Co., Ltd., Perpetual Trustee Company Limited and the Commissioner; (e) the Lease; (f) the Shareholder Loan and Equity Agreement between the Shareholder, the Company, Kumagai Gumi Co., Ltd. and ACTL Holdings Pty. Limited providing, amongst other things, for a loan of $40,000,000 to the Company from the Shareholder; (g) the Underwriting Agreement between the Company and Westpac Banking Corporation; (h) the Design and Construction Agreement between the Company and the Joint Venturers; (i) the Operation, Repair and Maintenance Agreement between the Company and the Commissioner; (j) the DMR Sub-contract between the Company and the Commissioner; (k) the Deed of Charge in favour of the Commissioner given by the Company; (l) the Performance Bond provided on behalf of the Joint Venturers in favour of the Company, in the amount of $40,000,000; (m) the Guarantee and Indemnity between Kumagai