Thanks to Stuart MP The Hon. Dan van Holst Pellekaan, we have gained through FOI the Lease Agreement between Genesee & Wyoming Australia (GWA) and the State Government. Here is an edited version for this page, if anyone would like a copy then feel free to email me. I also plan to find out if an Act of Parliament is required to close or remove a line in SA. *** GWA LEASE AGREEMENT – POINTS OF INTEREST 1.1.21 Lessee's Property means all the Lessee's fixtures, fittings, equipment, furnishings and other property of the Lessee on the Land (including the Track Infrastructure). 1.1.23 Lessor means the Minister for Transport a body corporate pursuant to the Administrative Arrangements Act, 1994 (SA). 1.1.25 Linear continuity means, in respect of a line, (a) the state of being either physically open to rail traffic along its whole length, or maintained in a Dormant Condition, and (b) the state of being maintained in the possession of the Lessee. 1.1.26 line means a part of the Rail Corridor that lies between two specified locations and includes the associated yards, sidings, terminals, stations and other Track Infrastructure needed to allow and facilitate the operation of rolling stock between those two locations. 1.1.28 Minimum Service Requirements means the services specified in Schedule 3, 1.1.30 Non Operational Lines means the lines: (a) from Wolseley to Mount Gambier, 1.1.34 Railway Operations means services provided by or in association with: (a) the provision, maintenance, movement, shunting, storage, fuelling, unfuelling, loading and unloading of Rolling Stock to transport freight by rail; and (b) the provision, maintenance, storage, building, rebuilding, servicing, replacing and repairing of Track Infrastructure and Rolling Stock; and (c) the conduct of the business of handling, storing and transporting freight and passengers, or either, by rail (and incidentally by road); and (d) the maintenance and operation of signalling and communication equipment; and (e) includes a Railway Integrated Business. 1.1.35 Railway Integrated Business means a business: (a) which is conducted in an integrated fashion with the rail network; (b) which is conducted in premises where the Lessee has the capacity to deliver and recover freight by rail; (c) which is conducted in premises where there is a rail spur specific to the business; and (d) in respect of which the Lessee in practice conducts delivery of supplies and recovery of production by rail. Rent for the Rail Corridor is: 3.1.1 $1.00 per annum; and 3.1.2 after the expiry of 5 years after the Commencement Date, in respect of any portion of the Rail Corridor which is sublet, Commercial Rent. 3.2 BALANCE OF THE LAND RENT Rent for the Balance of the Land is: 3.2.1 for the first five years of the Term $1.00 per annum; and 3.2.2 for the balance of the Term, Commercial Rent. 4.2.2 the Lessee may surrender the Lease in respect of that portion of the Land and the Lessor must accept such surrender; and 4.2.3 the Lessor may require the Lessee to surrender the Lease in respect of that portion of the Land. 4.2.4 the parties acknowledge that the rights conferred by the preceding sub clause are not in the nature of a remedy for breach, but a means of adjusting the extent of the Land subject to this Lease, in accordance with the following principles: (a) if Land is not genuinely required for use for Railway Operations, it is properly regarded as non-operational or surplus land which the State may recover for its own purposes; (b) if Land is used or is genuinely intended for use (as contemplated in clause 4.2.4.4) for Railway Operations, it should be retained for use by the Lessee; (c) if the Lessee maintains a line or part of a line in a Dormant Condition, that constitutes use for the purposes of this clause, but does not preclude the Lessee from surrendering the relevant part of the Land; (d) if the Lessee has a genuine intention to use or to explore the feasibility of use of a part of the Land for Railway Operations, and notifies the Lessor accordingly, then for six months following such notice (unless the Lessee notifies to the contrary) the Lessee is taken to be using the Land for Railway Operations, and on the expiry of the six month period: (i) if the Lessee provides to the Lessor a bona fide business plan for use of the relevant part of the Land for Railway Operations, and for so long as the Lessee implements or develops the plan with due expedition, the Lessee is taken to be using the Land for Railway Operations; and (ii) if the Lessee does not provide, develop or implement such a business plan, the Lessee is taken not to be using the relevant part of the Land. 4.2.5 If Minimum Service Requirements are not met with respect to a portion of the Land for a continuous period of 6 months during the first five years of the Term, the Lessor may require the Lessee to surrender the Lease in respect of that portion of the Land. 4.2.6 If the Lessor requires the Lessee to surrender, or the Lessee elects to surrender a portion of the Land under this clause, the Lessor may at its election acquire all or any part of the Track Infrastructure located on that portion of the Land as at the Surrender Notice Date: (a) if before the expiry of the first five years after the Commencement Date, without being liable to make any payment, and 4.3.2 In order to exercise the Lessee's right to surrender a portion of the Land under clause 4.2.2, the Lessee must give the Lessor a Surrender Notice. 4.3.6 No later than 90 days after a Surrender Notice which is not disputed under the preceding subclause is given by either party, or not later than 90 days after any dispute as to the Surrender Warning Notice or the Surrender Notice is resolved (if resolved in favour of the validity of the Surrender Warning Notice or the Surrender Notice) the Lessee must give the Lessor written notice being a Notice of Value and Condition in respect of the relevant portion of the Land: (b) if the Lessee would be entitled to require payment for the Track Infrastructure, the Lessee's estimate of the Market Value of the Track Infrastructure, itemised insofar as practicable with respect to the various categories of the Track Infrastructure; and (c) a description of any Significant Public Hazard on or in the relevant portion of the Land. 4.6 Surrender of the Lease and Consequential Matters 4.6.1 Where a valid Surrender Notice has been given by one party to the other under clause 4.3 the Lessee must: (a) execute and deliver a partial surrender of the Lease in respect of the relevant portion of the Land, not later than six months after the date of the Surrender Notice or six months after the determination by an independent expert of any dispute as to the Hazard Removal Work, whichever is the later ("the Surrender Date"); and (b) relinquish possession of the portion of the Land to the Lessor upon demand by the Lessor at any time after the Surrender Date. 4.6.2 The costs of the preparation execution and registration of the surrender of lease under this clause must be borne: (a) if the surrender is given at the election of the Lessee, or pursuant to a Surrender Notice by the Lessor made under clause 4.2.3, by the Lessee; (b) in any other case, by the Lessor. 4.6.3 The Lessor must acquire Nominated Track Infrastructure with respect to which the election to acquire has not been revoked under clause 4.3.7. Title in Nominated Track Infrastructure passes to the Lessor on payment of its Market Value, or if the Lessor is not obliged to pay for it, on nomination by the Lessor. 5.4 Lessor's right to enter Land 5.4.1 Subject to paragraph 5.4.2, the Lessor may enter the Land together with all necessary workmen and equipment at all reasonable times for the following purposes, if it gives the Lessee reasonable prior notice: (a) to determine the condition of the Land or whether the Lessee is complying with this Lease; 5.6 Lessor may perform Lessee's obligations The Lessor may, at the Lessee's cost, do anything which the Lessee is obliged to do under this Lease but has failed to do. The Lessor agrees that it will not exercise its rights under this clause unless it has given notice to the Lessee specifying the matter which has not been done and giving the Lessee a reasonable period to take corrective action (such period to be not less than 30 days). 6. LESSEE'S OBLIGATIONS 6.1 General obligations The Lessee must: 6.2.6 the Lessee must not remove any item of Track infrastructure from the Land other than pursuant to an order issued by an Authority or in compliance with the Lessee's repair, maintenance and replacement obligations under this Lease, or with the prior written consent of the Lessor, which must not be unreasonably withheld; it is acknowledged that it is not unreasonable for the Lessor to withhold consent or to impose conditions if the Lessor reasonably believes that removal would: (a) have a significantly adverse effect on continuation of Railway Operations; or (b) have a significantly adverse effect on regional economic or employment conditions. The Lessor must provide written reasons if the Lessor withholds consent or imposes conditions as to the basis of that decision. 6.2.7 the Lessee must not affix or construct any permanent improvement to or on the Land other than with the prior written consent of the Lessor, which must not be unreasonably withheld or as permitted by the terms of this Lease; it is acknowledged that it is not unreasonable for the Lessor to withhold consent or impose conditions if in the Lessor's reasonable opinion the proposed improvement: (a) is not intended for use for Railway Operations; (b) would adversely affect the viability of Railway Operations; (c) would have a significantly adverse effect on the value of the Lessor's reversionary right in the Land. The Lessor must provide written reasons if the Lessor withholds consent or imposes conditions as to the basis of that decision. 6.2.8 the Lessee must exercise reasonable care in its use and maintenance of the Land to avoid reasonably foreseeable injury to persons or property. 6.3 Maintenance of Land The Lessee must, to the extent necessary to avoid nuisance to neighbouring properties, to safeguard public safety and to maintain the Lessee's ability to conduct Railway Operations: 6.3.1 (Land) keep the Land (including fences) in good condition and free of fire hazards and vermin in all respects (including, without limiting the preceding requirements, grass cutting and weed control and repairing and maintaining as required any damage caused by fire, flood, lightning, storm, war or any act of God); 7.11.4 any service or the misuse of any service provided to the Land; 7.11.5 the escape of any matter or thing whatsoever from the Land; 7.11.6 the conduct of Railway Operations on the Land; and 7.11.7 the failure of the Lessee to comply with any of its obligations under any Existing Lease, any grant, easement or other right of use or occupation of the Land made pursuant to any agreement entered into prior to the Commencement Date, made as permitted under the terms of this Lease or entered into pursuant to any statute or regulation, except, in each case, to the extent that any such claim, action, damage, loss, liability, cost or expense is caused or contributed to by the wilful misconduct, fraud, or negligence of the Lessor. 9. TERMINATION 9.1 Events of default 9.1.1 The Lessor may terminate this lease forthwith and re-enter and take possession of the Land or, subject to clause 9.1.2, convert this Lease to a monthly tenancy if any of the following events occurs, is not remedied and is not waived by the Lessor: (a) (non-payment)after the fifth anniversary of the Commencement Date, the Lessee does not pay the Rent (as referred to in clause 3.2) or any other money due to the Lessor under this Lease within 30 days after written demand has been served by the Lessor on the Lessee; (b) (breach) the Lessee: (i) removes any Track Infrastructure (except as permitted by this Lease) without the Lessor's consent and does not reinstate that Track Infrastructure within 30 days of being required to do so by the Lessor; (e)(Fails to provide Minimum Services) during the first five years of the Term, the Lessee fails: (i)to comply with the Minimum Service Requirements for a continuous period of six (6) months; and (ii)to recommence the provision of those Minimum Service Requirements within 30 days of written notice from the Lessor requesting that such services be provided. (f) (Railway ceases) the Lessee ceases to conduct Railway Operations on the entire Rail Corridor for a continuous period of eighteen (18) months. 10. CONSEQUENCES OF TERMINATION OR EXPIRY 10.1 Right to acquire Track Infrastructure Upon termination or expiry of this Lease the Lessor may at its election acquire all or any part of the Track Infrastructure located on the Land as at the date of termination or expiry: 10.1.1 if termination occurs before the expiry of five years from the Commencement Date, at no cost to the Lessor; and 10.1.2 in any other case, upon payment to the Lessee of the Market Value of the Track Infrastructure, 10.2 Useable Track Infrastructure The Lessor may not exercise its right to acquire less than all the Track Infrastructure located on the Land under the preceding subclause unless the Track Infrastructure selected comprises an integrated package or packages of infrastructure capable of use for Railway Operations. 10.3 Unacquired Track Infrastructure With respect to any Track Infrastructure which the Lessor elects not to acquire: 10.3.1 the Lessee may remove that part of the Track Infrastructure; 10.3.2 if it removes that part of the Track Infrastructure, the Lessee must ensure that the portion of the Land from which it is removed is not by reason of such removal left unsafe at the Lessee's cost and to the Lessor's reasonable satisfaction; and 10.3.3 if the Lessee does not remove that part of the Track Infrastructure before the expiry of the Term or within six months after the termination of this Lease, then title to that part of the Track Infrastructure passes to the Lessor. 10.3.4 If within twelve months after the expiry or termination of this Lease, the Lessor: (a) commences to make use of the Track Infrastructure or a part of the Track Infrastructure which the Lessor elected not to acquire pursuant to this clause ("Unacquired Track Infrastructure) for Railway Operations; or (b) makes the Unacquired Track Infrastructure available to another person (a "Railway Licensee") for use in Railway Operations; or (c) commences a process of calling for bids or tenders or other process designed to lead to a contract under which it is proposed that a Railway Licensee will acquire or have the use of the Unacquired Track Infrastructure for use in Railway Operations; then the Lessor will be liable to pay to the Lessee the Market Value of so much of the Unacquired Track Infrastructure as the Lessor or the Railway Licensee uses or acquires. 10.7.2 If this Lease has been terminated or has expired, the Lessee must promptly give vacant possession of the Land in the condition and state of repair required under this Lease upon demand by the Lessor, and the Lessor must promptly make any payment due to the Lessee in respect of acquisition of the Nominated Track Infrastructure. 10.7.3 If the Lessee has relinquished possession of the Land prior to the expiry of a period of six months after termination of this Lease, then until that date the Lessor will grant to the Lessee a licence to come onto the Land to the extent reasonably required and for the purpose of removing any Significant Public Hazard or removing Track Infrastructure which has not been acquired by the Lessor. 10.7.4 After the completion of the Hazard Removal Work in accordance with clause 10.3, the Lessee will be taken to have made the Land free from any Significant Public Hazard. 10.7.5 The Lessee must immediately remedy any damage caused to the Land in the course of removal of the Lessee's Property and/or the Track Infrastructure. 10.7.6 If the Lessee does not remedy any damage under clause 10.7.5, the Lessor may do so at the Lessee's cost. 10.7.7 If the Lessee does not remove any Lessee's Property which it is required to remove from the Land or from any place where it is stored by the Lessor within seven days of being asked to do so by the Lessor, that Lessee's Property (if the Lessor so elects) becomes the property of the Lessor at no cost to the Lessor. 12. FORCE MAJEURE 12.1 Definition A "Force Majeure" circumstance is an event or circumstance which, or the consequences of which, the party affected cannot: 12.1.1 (in the case of the Lessee) control or influence to the extent necessary to permit the conduct of Railway Operations or Minimum Service Requirements; or 12.1.2 avoid through prudent management processes, policies and precautions, including (without limitation) through the use of alternate resources and work around plans (in the case of the Lessee, consistent with best railway industry practices), 12.2 Specific Circumstances Subject to clause 12.1, a Force Majeure Circumstance may include: 12.2.1 fire, flood, earthquake, elements of nature of acts of god, malicious damage, explosion, sabotage, toxic or dangerous chemical contamination (other than as a result of the Lessee's non-performance) riot, civil disorder, rebellion or revolution in Australia; 12.2.2 any failure by the Lessor or the Lessee to perform its obligations in accordance with the Lease *** Lines involved - Gawler to Angaston and Penrice Junction; - Gawler to Kapunda; - Hamley Bridge to Burra; - Monarto South to Apamurra; - Roseworthy to Balaklava - Tailem Bend to Pinnaroo - Tailem Bend to Loxton Some structures: - Passenger Terminal, Tailem Bend; - Salt Creek Railway Bridge, Pallamanna; - Former YMCA Hostel, 106 Main St, Peterborough; - Railway Structure & Silo - Railway Station Complex, Balaklava; - Burra Railway Station incl. Station Buildings Water Columns & Tank, Burra; - Gawler Railway Station Historic Site inc. Station Parcel Office, Train Shed, Good Shed, & Signal Box, Gawler; ** MINIMUM SERVICES TO BE PROVIDED BY THE LESSEE The Minimum Service Requirements comprise the obligations set out in this Schedule. 1. The Lessee must provide a sufficient rail service to meet the requirements of Existing Customers; 1.1 in accordance with any contractual arrangement between the Existing Customer and the Lessee, or 1.2if there is no contractual arrangement, subject to acceptance by the Existing Customer of commercial terms offered by the Lessee; For this purpose "Existing Customers" mean; (a) South Australian Co-operative Bulk Handling as to the haulage of grain; (b) Australian Wheat Board as to the haulage of grain; (c) Australian Barley Board as to the haulage of grain; (d) Penrice Limited as to the haulage of marble; and (e) Boral Limited as to the haulage of gypsum. 2. The obligation to provide rail services is taken to be met in any six month period; 2.1 if in respect of services to Penrice and Boral, at least 90% of scheduled deliveries are provided; 2.2 if in respect of other Existing Customers, no more than one or 10% of scheduled deliveries is missed. A scheduled delivery is a delivery which the Lessee has agreed with an Existing Customer to provide. A scheduled delivery is taken not to have been missed if it is cancelled at the request of or by agreement with the Existing Customer. 3. The Lessee must maintain all lines which were actively used by the Australian National Railways Commission in the year prior to the Commencement Date: 3.1 at levels consistent with actual use by the Lessor; and 3.2 if they are not being used, at least in Dormant Condition. 4. The Lessee must: 4.1 establish its headquarters in the Adelaide area; 4.2 maintain operations at Port Augusta and Dry Creek workshops; GROUND LEASES (INCL. RAIL) - Roseworthy to Balaklava; - Gawler to Kapunda; - Hamley Bridge to Burra; - Tailem Bend to Pinnaroo; - Monarto South to Cambrai; - Karoonda to Loxton; - Tailem Bend to Karoonda; - Gawler to Angaston and Penrice; - Wallaroo to Brinkworth; - Bowmans Silos; - Snowtown; OTHER NOTES: Balaklava Station: Railway Station Complex, Goods Shed. BalaklavaRailwayStationcomplex,including goodsshed, passengerstation,sheds,turntable, sheepyards and wheat silos Burra Railway Station: Burra Railway Station (Station buildings, water columns and tank) Hamley Bridge Railway Station: Former Hamley Bridge Railway Station, including two platforms, platform shelters and crane; The main station building, two water tanks, underground tank, station-master's house, signal cabin are privately owned Final Note: While there is no mention of this in the Lease (not that could be found), the Minister for Transport and Infrastructure The Hon. Stephen Mullighan is quoted saying, from a letter dated 8 August 2014: "The Rail Infrustructure is not a South Australian Government Asset, however Genesee & Wyoming Australia is obligated to maintain it to a requirement to ensure the network is in such a condition that trains could be operated at two weeks’ notice." *** If anyone would like a copy of the full agreement, feel free to email me. Kind Regards Mitchell Heard heardy_101@hotmail.com.au