Common use of Noise Mitigation Clause in Contracts

Noise Mitigation. In addition to any noise mitigation or management requirements under the IRMP or as otherwise agreed between the Parties, the Operator must pay to Queensland Rail a contribution, as determined by Queensland Rail (acting reasonably), to the costs and expenses incurred by Queensland Rail in relation to any noise mitigation or management measures on the Network, or land adjacent to the Network, that are considered necessary by Queensland Rail (acting reasonably) to comply with noise levels, limits, standards, guidelines or other requirements that Queensland Rail is required to comply with or which are required in order for Queensland Rail to comply with under any applicable Law (Noise Mitigation Requirements). Queensland Rail will (acting reasonably): consult with the Operator prior to Queensland Rail electing to implementing noise mitigation or management measures on the Network, or land adjacent to the Network, to comply with any applicable Noise Mitigation Requirements from time to time; and notify the Operator of how it will determine the Operator’s contribution to its costs and expenses in relation to any noise mitigation or management measures, including,: prior to electing to implement noise mitigation or management measures on the Network, providinge to the Operator any tender documents and quotes to support any expenses which Queensland Rail will seek to recover. Inspection of Trains and Rolling Stock Where: Queensland Rail believes (acting reasonably) that the Operator’s Rolling Stock or Train Configurations do not comply with: the authorised Rolling Stock and Train Configurations applicable to the Train Services; any applicable Laws relevant to the Train Services; and Queensland Rail cannot otherwise reasonably confirm that compliance, Queensland Rail may: notify the Operator of its belief (including the grounds supporting that belief) and require the Operator to demonstrate that the Rolling Stock or Train Configurations are compliant; and where the Operator fails to demonstrate compliance: inspect any Trains or Rolling Stock utilised or intended to be utilised for the Train Services; or require the Operator to have an inspection conducted, after giving notice of that inspection or requirement to the Operator and for this purpose, Queensland Rail or Queensland Rail’s Associates will be entitled at any time to enter and ride on the Operator’s Trains or Rolling Stock. Queensland Rail may require any of the Operator’s Rolling Stock (either loaded or empty) to be available at such location on the Network as Queensland Rail may require (acting reasonably) for weighing, measuring or other inspection at any time specified by Queensland Rail (acting reasonably), provided that Queensland Rail must use reasonable endeavours to minimise any diversion or delay to a Train Service. If any of the Operator’s Rolling Stock is reasonably considered by Queensland Rail to be loaded: in excess of its rated carrying capacity; or in an unsafe or insecure manner, then Queensland Rail may: at any time require the Operator to discontinue the Train Service or to remove the excess or adjust the load at the Operator's expense; or where the Operator fails to immediately remove the excess or adjust the load, arrange for its removal or adjustment and Queensland Rail’s reasonable costs and expenses of doing so will be a debt due and owing by the Operator to Queensland Rail. The Operator must provide all reasonable assistance required by Queensland Rail in conducting any inspection, including allowing Queensland Rail, its appointed representative or a person appointed to conduct an inspection to discuss any relevant matter with the Operator’s Associates. A member of the Operator’s Associates may be present at the inspection. Nothing in this clause 11 obliges the Operator, or entitles Queensland Rail, to do anything that would result in the Operator not complying with any Law. The Operator must bear the reasonable costs of the conduct of the inspection to the extent that the inspection demonstrates that a relevant non-compliance exists. Queensland Rail must bear the costs of conducting the inspection to the extent that the inspection demonstrates that no relevant non-compliance exists. An inspection by Queensland Rail under this clause 11 does not relieve the Operator of its obligations under this agreement or at Law. Risk and indemnities Subject to clause 13 (and without limitation to clause 12.2), the Operator indemnifies and will keep indemnified each other Party and that other Party’s Associates against all Losses suffered or incurred by, or Claims brought against or made upon, that other Party or its Associates (as applicable) in respect of: any loss of, damage to or destruction of real or personal property (including property of any Party); or personal injury to or death of any person, in each case to the extent caused or contributed to by: a breach of this agreement by the Operator; or any negligent act or omission of the Operator or the Operator’s Associates in the performance of obligations, or in the exercise of rights, under this agreement. Subject to clause 13 (and without limitation to clause 12.2), Queensland Rail indemnifies and will keep indemnified each other Party and that other Party’s Associates against all Losses suffered or incurred by, or Claims brought against or made upon, that other Party or its Associates (as applicable) in respect of: any loss of, damage to or destruction of real or personal property (including property of any Party); or personal injury to or death of any person, in each case to the extent caused or contributed to by: a breach of this agreement by Queensland Rail; or any negligent act or omission of Queensland Rail or Queensland Rail’s Associates in the performance of obligations, or in the exercise of rights under this agreement. Subject to clause 13, the Access Holder indemnifies and will keep indemnified each other Party and that other Party’s Associates against all Losses suffered or incurred by, or Claims brought against or made upon, that other Party or its Associates (as applicable) in respect of: any loss of, damage to or destruction of real or personal property (including property of any Party); or personal injury to or death of any person, in each case to the extent caused or contributed to by: a breach of this agreement by the Access Holder; or any negligent act or omission of the Access Holder or the Access Holder’s Associates in the performance of obligations, or in the exercise of rights under this agreement. This clause 12.2 only applies where the Operator holds the Access Rights and the Operator’s Customer is not a Party. The Parties acknowledge and agree that if the Operator’s Customer were a Party to this agreement, then clause 13 should and would apply as if a reference to the Operator in clause 13 included a reference to the Operator’s Customer with the effect of limiting and excluding Claims and liability for Losses as between the Operator’s Customer and Queensland Rail – for example, excluding Claims by the Operator’s Customer against Queensland Rail for Consequential Loss (where applicable). As there is no contract between Queensland Rail and the Operator’s Customer addressing the matters referred to under clause 12.2(b), the Operator indemnifies and will keep indemnified Queensland Rail and its Associates from all Claims by the Operator’s Customer (including any Loss arising out of Claims) in a way that gives effect to clause 13 as if clause 13 did apply as between Queensland Rail and the Operator’s Customer (with any reference to the Operator in clause 13 being a reference to the Operator’s Customer). For example, if the Operator’s Customer is not a Party and commences a Claim against Queensland Rail for Consequential Loss in circumstances where the Operator is excluded from making any such Claim, then the Operator will indemnify Queensland Rail for that Consequential Loss. The Operator is responsible for all conduct of the Operator’s Customer relating to this agreement (including the Train Services). Any act or omission of the Operator’s Customer is deemed to be an act or omission by the Operator for the purposes of this agreement. Without limiting clause 12.2, the Operator (and where the Operator’s Customer is a Party, the Operator’s Customer) must: ensure Queensland Rail has the benefit of any exclusion or limitation of liability in favour of, or for the benefit of, the Operator under the Operator’s conditions of carriage in relation to any person, or any person whose property is, being transported on Train Services including the Operator’s Customer; and provide to Queensland Rail details of the provisions of the conditions of carriage relevant to those exclusions and limitations of liability in place from time to time. Each Party must provide reasonable assistance to each other Party in the defence of any Claim made against that other Party by a third party arising out of any event in connection with a Network Incident. A Party may allow any of that Party’s Associates to exercise any of the Party’s rights or to comply with any of the Party’s obligations under this agreement. Each Party is responsible for the conduct of that Party’s Associates in exercising any of that Party’s rights or complying with any of the Party’s obligations as if that conduct was the conduct of that Party itself. If a Party delegates or subcontracts the exercise or performance of any of its rights or obligations under this agreement to any person, then: that Party remains fully responsible for the exercise or performance of the delegated or subcontracted (as applicable) rights or obligations; and any conduct of any delegate or subcontractor (as applicable) will be taken to be the conduct of the Party.

Noise Mitigation. In addition to any noise mitigation or management requirements under the IRMP or as otherwise agreed between the Parties, the Operator must pay to Queensland Rail a contribution, as determined by Queensland Rail (acting reasonably), to the costs and expenses incurred by Queensland Rail in relation to any noise mitigation or management measures on the Network, or land adjacent to the Network, that are considered necessary by Queensland Rail (acting reasonably) to comply with noise levels, limits, standards, guidelines or other requirements that Queensland Rail is required to comply with or which are required in order for Queensland Rail to comply with under any applicable Law (Noise Mitigation Requirements). Queensland Rail will (acting reasonably): consult with the Operator prior to Queensland Rail electing to implementing noise mitigation or management measures on the Network, or land adjacent to the Network, to comply with any applicable Noise Mitigation Requirements from time to time; and notify the Operator of how it will determine the Operator’s contribution to its costs and expenses in relation to any noise mitigation or management measures, including,: , prior to electing to implement noise mitigation or management measures on the Network, providinge providing to the Operator any tender documents and quotes to support any expenses which Queensland Rail will seek to recover. Inspection of Trains and Rolling Stock Where: Queensland Rail believes (acting reasonably) that the Operator’s Rolling Stock or Train Configurations do not comply with: the authorised Rolling Stock and Train Configurations applicable to the Train Services; any applicable Laws relevant to the Train Services; and Queensland Rail cannot otherwise reasonably confirm that compliance, Queensland Rail may: notify the Operator of its belief (including the grounds supporting that belief) and require the Operator to demonstrate that the Rolling Stock or Train Configurations are compliant; and where the Operator fails to demonstrate compliance: inspect any Trains or Rolling Stock utilised or intended to be utilised for the Train Services; or require the Operator to have an inspection conducted, after giving notice of that inspection or requirement to the Operator and for this purpose, Queensland Rail or Queensland Rail’s Associates will be entitled at any time to enter and ride on the Operator’s Trains or Rolling Stock. Queensland Rail may require any of the Operator’s Rolling Stock (either loaded or empty) to be available at such location on the Network as Queensland Rail may require (acting reasonably) for weighing, measuring or other inspection at any time specified by Queensland Rail (acting reasonably), provided that Queensland Rail must use reasonable endeavours to minimise any diversion or delay to a Train Service. If any of the Operator’s Rolling Stock is reasonably considered by Queensland Rail to be loaded: in excess of its rated carrying capacity; or in an unsafe or insecure manner, then Queensland Rail may: at any time require the Operator to discontinue the Train Service or to remove the excess or adjust the load at the Operator's expense; or where the Operator fails to immediately remove the excess or adjust the load, arrange for its removal or adjustment and Queensland Rail’s reasonable costs and expenses of doing so will be a debt due and owing by the Operator to Queensland Rail. The Operator must provide all reasonable assistance required by Queensland Rail in conducting any inspection, including allowing Queensland Rail, its appointed representative or a person appointed to conduct an inspection to discuss any relevant matter with the Operator’s Associates. A member of the Operator’s Associates may be present at the inspection. Nothing in this clause 11 obliges the Operator, or entitles Queensland Rail, to do anything that would result in the Operator not complying with any Law. The Operator must bear the reasonable costs of the conduct of the inspection to the extent that the inspection demonstrates that a relevant non-compliance exists. Queensland Rail must bear the costs of conducting the inspection to the extent that the inspection demonstrates that no relevant non-compliance exists. An inspection by Queensland Rail under this clause 11 does not relieve the Operator of its obligations under this agreement or at Law. Risk and indemnities Subject to clause 13 (and without limitation to clause 12.2), the Operator indemnifies and will keep indemnified each other Party and that other Party’s Associates against all Losses suffered or incurred by, or Claims brought against or made upon, that other Party or its Associates (as applicable) in respect of: any loss of, damage to or destruction of real or personal property (including property of any Party); or personal injury to or death of any person, in each case to the extent caused or contributed to by: a breach of this agreement by the Operator; or any negligent act or omission of the Operator or the Operator’s Associates in the performance of obligations, or in the exercise of rights, under this agreement. Subject to clause 13 (and without limitation to clause 12.2), Queensland Rail indemnifies and will keep indemnified each other Party and that other Party’s Associates against all Losses suffered or incurred by, or Claims brought against or made upon, that other Party or its Associates (as applicable) in respect of: any loss of, damage to or destruction of real or personal property (including property of any Party); or personal injury to or death of any person, in each case to the extent caused or contributed to by: a breach of this agreement by Queensland Rail; or any negligent act or omission of Queensland Rail or Queensland Rail’s Associates in the performance of obligations, or in the exercise of rights under this agreement. Subject to clause 13, the Access Holder indemnifies and will keep indemnified each other Party and that other Party’s Associates against all Losses suffered or incurred by, or Claims brought against or made upon, that other Party or its Associates (as applicable) in respect of: any loss of, damage to or destruction of real or personal property (including property of any Party); or personal injury to or death of any person, in each case to the extent caused or contributed to by: a breach of this agreement by the Access Holder; or any negligent act or omission of the Access Holder or the Access Holder’s Associates in the performance of obligations, or in the exercise of rights under this agreement. This clause 12.2 only applies where the Operator holds the Access Rights and the Operator’s Customer is not a Party. The Parties acknowledge and agree that if the Operator’s Customer were a Party to this agreement, then clause 13 should and would apply as if a reference to the Operator in clause 13 included a reference to the Operator’s Customer with the effect of limiting and excluding Claims and liability for Losses as between the Operator’s Customer and Queensland Rail – for example, excluding Claims by the Operator’s Customer against Queensland Rail for Consequential Loss (where applicable). As there is no contract between Queensland Rail and the Operator’s Customer addressing the matters referred to under clause 12.2(b), the Operator indemnifies and will keep indemnified Queensland Rail and its Associates from all Claims by the Operator’s Customer (including any Loss arising out of Claims) in a way that gives effect to clause 13 as if clause 13 did apply as between Queensland Rail and the Operator’s Customer (with any reference to the Operator in clause 13 being a reference to the Operator’s Customer). For example, if the Operator’s Customer is not a Party and commences a Claim against Queensland Rail for Consequential Loss in circumstances where the Operator is excluded from making any such Claim, then the Operator will indemnify Queensland Rail for that Consequential Loss. The Operator is responsible for all conduct of the Operator’s Customer relating to this agreement (including the Train Services). Any act or omission of the Operator’s Customer is deemed to be an act or omission by the Operator for the purposes of this agreement. Without limiting clause 12.2, the Operator (and where the Operator’s Customer is a Party, the Operator’s Customer) must: ensure Queensland Rail has the benefit of any exclusion or limitation of liability in favour of, or for the benefit of, the Operator under the Operator’s conditions of carriage in relation to any person, or any person whose property is, being transported on Train Services including the Operator’s Customer; and provide to Queensland Rail details of the provisions of the conditions of carriage relevant to those exclusions and limitations of liability in place from time to time. Each Party must provide reasonable assistance to each other Party in the defence of any Claim made against that other Party by a third party arising out of any event in connection with a Network Incident. A Party may allow any of that Party’s Associates to exercise any of the Party’s rights or to comply with any of the Party’s obligations under this agreement. Each Party is responsible for the conduct of that Party’s Associates in exercising any of that Party’s rights or complying with any of the Party’s obligations as if that conduct was the conduct of that Party itself. If a Party delegates or subcontracts the exercise or performance of any of its rights or obligations under this agreement to any person, then: that Party remains fully responsible for the exercise or performance of the delegated or subcontracted (as applicable) rights or obligations; and any conduct of any delegate or subcontractor (as applicable) will be taken to be the conduct of the Party.