South Australian Current Acts South Australian Current ActsTHIS INDENTURE made the 26th day of November 1981 BETWEEN: THE
STATE OF SOUTH AUSTRALIA (hereinafter referred to as "the State") of the First
Part and SANTOS LIMITED a Company incorporated under the laws of the State of
South Australia and having its registered office at 183 Melbourne Street,
North Adelaide in that State (hereinafter referred to as "Santos" which
expression when hereinafter used shall include its successors and permitted
assigns wherever the context shall so require or admit) of the Second Part
DELHI PETROLEUM PTY. LIMITED a Company incorporated under the laws of the
State of South Australia and having its registered office at 33 King William
Street, Adelaide in that State (hereinafter referred to as "DPPL" which
expression when hereinafter used shall include its successors and permitted
assigns wherever the context shall so require or admit) of the Third Part
SOUTH AUSTRALIAN OIL & GAS CORPORATION PTY. LTD. a Company incorporated
under the laws of the State of South Australia and having its registered
office at 226 Melbourne Street, North Adelaide in that State (hereinafter
referred to as "SAOG" which expression when hereinafter used shall include its
successors and permitted assigns wherever the context shall so require or
admit) of the Fourth Part BASIN OIL NO LIABILITY a Company incorporated under
the laws of the State of New South Wales and having its registered office at
C/- Priestly and Morris, 37 Pitt Street, Sydney in that State (hereinafter
referred to as "Basin" which expression when hereinafter used shall include
its successors and permitted assigns wherever the context shall so require or
admit) of the Fifth Part BRIDGE OIL LIMITED a Company incorporated under the
laws of the State of New South Wales and having its registered office at 60
Margaret Street, Sydney in that State (hereinafter referred to as "Bridge"
which expression when hereinafter used shall include its successors and
permitted assigns wherever the context shall so require or admit) of the Sixth
Part BRIDGE OIL DEVELOPMENTS PTY. LIMITED a Company incorporated under the
laws of the State of New South Wales and having its registered office at 60
Margaret Street, Sydney in that State (hereinafter referred to as "BOD" which
expression when hereinafter used shall include its successors and permitted
assigns wherever the context shall so require or admit) of the Seventh Part
TOTAL EXPLORATION AUSTRALIA PTY. LIMITED a Company incorporated under the laws
of the State of New South Wales and having its registered office at 168 Walker
Street, North Sydney in that State (hereinafter referred to as "TEA" which
expression when hereinafter used shall include its successors and permitted
assigns wherever the context shall so require or admit) of the Eighth Part
REEF OIL NO LIABILITY a Company incorporated under the laws of the State of
New South Wales and having its registered office at C/- Priestly and Morris,
37 Pitt Street, Sydney in that State (hereinafter referred to as "Reef" which
expression when hereinafter used shall include its successors and permitted
assigns wherever the context shall so require or admit) of the Ninth Part
VAMGAS LIMITED a Company incorporated under the laws of the State of New South
Wales and having its registered office at Suite 801, London Assurance House,
20 Bridge Street, Sydney in that State (hereinafter referred to as "Vamgas"
which expression when hereinafter used shall include its successors and
permitted assigns wherever the context shall so require or admit) of the Tenth
Part ALLIANCE PETROLEUM AUSTRALIA NO LIABILITY a Company incorporated under
the laws of the State of Victoria and having its registered office at 30
Collins Street, Melbourne, in that State (hereinafter referred to as
"Alliance" which expression when hereinafter used shall include its successors
and permitted assigns wherever the context shall so require or admit) of the
Eleventh Part CRUSADER RESOURCES N.L. a Company incorporated under the laws of
the State of Victoria and having its registered office at 44 Market Street,
Melbourne in that State (hereinafter referred to as "Crusader" which
expression when hereinafter used shall include its successors and permitted
assigns wherever the context shall so require or admit) of the Twelfth Part
and THE MINISTER OF MINES AND ENERGY being the corporation sole referred to in
section 11 of the Mining Act, 1971-1981 of the State of South Australia
(hereinafter referred to as the "Minister") of the Thirteenth Part WHEREAS:
PART I
PURPOSE OF AGREEMENT
A. The parties of the
Second to the Twelfth Part of this Indenture both inclusive, that is to say
Santos, DPPL, SAOG, Basin, Bridge, BOD, TEA, Reef, Vamgas, Alliance and
Crusader (and when hereinafter used the expression "the Producers" shall mean
the parties of the Second to the Twelfth Part of this Indenture both inclusive
or such of them as shall be parties to this Indenture from time to time and in
addition shall include the successors and permitted assigns of each of the
parties of the Second to the Twelfth Part of this Indenture both inclusive,
wherever the context shall so require or admit), have access to reserves of
petroleum (hereinafter defined) in the State (hereinafter defined) and
elsewhere and from the production thereof propose to extract and treat, by
means of various processes involving the use of certain plant and equipment,
Product (hereinafter defined);
B. The Producers have
by an instrument of even date with this Indenture been granted Pipeline
Licence No. 2 (hereinafter defined) enabling them to construct, install and
operate a pipeline (hereinafter defined) subject to certain Conditions
contained in Pipeline Licence No. 2;
C. The said pipeline
is required by the Producers to be constructed, installed and operated for the
conveyance of Product from the vicinity of Moomba in the State to the vicinity
of Stony Point in the State;
D. It is a Condition
of Pipeline Licence No. 2 that the pipeline shall be constructed and installed
within the boundaries of certain lands, the right, title and interest in which
have been or will be acquired by PASA (hereinafter defined);
E. It is a further
Condition of Pipeline Licence No. 2 that before causing construction and
installation of the pipeline to commence the parties therein described as
Licensees, being the same parties as those described in this Indenture as the
Producers, shall have identified to them by PASA the position where the
pipeline shall be installed so as not to cause damage to or interference with
the operation of the existing natural gas pipeline owned by PASA; and further
that the Licensees shall comply with any relevant direction or instruction
given by PASA in this regard and further that the pipeline route, as nearly as
possible, shall be parallel to the existing natural gas pipeline owned by
PASA, from Moomba to a point in the near vicinity of Compressor Station No. 4
on the said natural gas pipeline, thence south-westerly and southerly, to a
delivery point at a fractionation and storage facility to be constructed in
the vicinity of Stony Point; but that without limiting the generality of the
foregoing the pipeline shall unless otherwise approved in writing by PASA be
installed in such a position as not to be closer at any point than twenty
metres to the western boundary of any land in relation to which PASA shall
have a right, title or interest for any purpose in connection with the
existing natural gas pipeline owned by PASA. An approximate indication only of
the pipeline route is shown on the plan annexed hereto as Schedule 1;
F. Subject as
hereinbefore provided the parties to this Indenture intend that PASA will
grant to the Producers in relation to a certain part of the pipeline land
(hereinafter defined) the rights and interests hereinafter described for the
purpose of enabling the Producers to conduct activities contemplated under
this Indenture;
G. The parties to this
Indenture further propose that certain other grants be made to the Producers
in order to facilitate the extraction and treatment of Product by the
Producers;
H. The Producers
propose to make substantial capital expenditures to construct and install
fractionation plant and Marine Facilities (hereinafter defined) and to
construct and install certain other plant and equipment associated therewith
in the vicinity of Stony Point;
I. PASA and the
Producers have prepared separately Environmental Impact Statements in relation
to the proposed use of certain lands within the State for purposes related to
this Indenture.
Both such Environmental Impact Statements have been approved by all necessary
Commonwealth (hereinafter defined) and State Government authorities and
departments;
J. The parties hereto
now desire to enter into this Indenture in order to define their respective
rights, duties and obligations with regard to the abovementioned matters;
K. The State being of
the opinion that the project contemplated by this Indenture will maximise the
development of an important resource, generate short and long term economic
and other benefits to the State generally and particularly the Northern and
Central areas of the State and encourage exploration for petroleum;
L. The State being
desirous that encouragement and support be given to enable the establishment
of a petrochemical complex and the provision of greater security of petroleum
supply in the State (with a view to reducing the risk of disruption of
petroleum supply to the South Australian Community and industry) utilising
petroleum produced from the Cooper Basin areas as a feedstock;
and
M. The parties hereto
further desire to amend The Schedule to the Cooper Basin (Ratification)
Act 1975 (hereinafter referred to as the "Cooper Basin Indenture") as
provided for in Part XXX and Schedule 5 of this Indenture in order to attain
the objects of this Indenture;
NOW THIS INDENTURE WITNESSETH and it is hereby convenanted and agreed by and
between the parties hereto as follows:—
PART II
PRELIMINARY
1. This Indenture as
the same may be varied or replaced from time to time shall be known as "The
Stony Point (Liquids Project) Indenture", and is referred to herein as "this
Indenture".
2. In this Indenture
and in the Schedules hereto except where terms and expressions are expressly
defined hereunder the Acts Interpretation Act, 1915-1975 of the State
shall apply to the construction and interpretation of this Indenture as if
this Indenture were an Act and in this Indenture unless in the context by
express words or necessary implication a contrary intention appears:
(1) "the Commencement
Date" means the date upon which the Stony Point (Liquids Project) Ratification
Bill, 1981 (hereinafter defined) comes into operation as an Act (and when
hereinafter appearing the expression "the Ratifying Act" means the Stony Point
(Liquids Project) Ratification Bill, 1981 when it comes into operation as
an Act);
(2) "Commonwealth"
means Commonwealth of Australia;
(3) "condensate" means
a mixture of hydrocarbons existing in natural underground gas reservoirs that
is recoverable and which is in a liquid state at standard temperature and
pressure after passing through surface separation facilities and which is
produced From a gas well but does not include hydrocarbons in the liquid state
derived from gas associated with crude oil production;
(4) "the Contiguous
Land" shall have the same meaning as that ascribed to that expression in
clause 10 of this Indenture;
(5) "crude oil" means
a mixture of hydrocarbons existing in natural underground oil reservoirs which
remains in a liquid state at standard temperature and pressure after recovery
and which is produced from an oil well and includes hydrocarbons in the liquid
state derived from gas associated with crude oil production;
(6) "the currency of
this Indenture" means the period during which this Indenture remains in full
force and effect in accordance with clause 94 of this Indenture;
(7) "day", "month" and
"year" means calendar day, calendar month and calendar year respectively;
(8) "ethane" means a
saturated hydrocarbon substance with molecules containing two atoms of carbon
occurring naturally but may include a mixture of ethane with impurities where
ethane is predominant in the mixture;
(9) "ETSA" means The
Electricity Trust of South Australia, a body corporate pursuant to the
provisions of the Electricity Trust of South Australia Act, 1946-1980 and
any successor which assumes the same, or substantially the same, functions as
are performed by ETSA at the date hereof;
(10) "the Jetty" means
the jetty which shall commence at a point on the Services Corridor
(hereinafter defined) proceeding in approximately a southerly direction into
the waters of Spencer Gulf at Stony Point for a distance of approximately two
thousand four hundred metres;
(11) "liquefied
petroleum gas" means a mixture of hydrocarbons with molecules containing
predominantly three or four atoms of carbon occurring naturally;
(12) "Marine
Facilities" means all submarine loading lines and pipelines, harbour and port
facilities, the Jetty, landing-place and shipping berths and all related and
ancillary facilities more particularly referred to in Part XV of this
Indenture;
(13) "the Minister of
Marine" means the Minister of the Crown to whom for the time being is
committed the administration of Part III of the Harbors Act, 1936-1981.
(14) "natural gas" or
"gas" means and includes any naturally occurring hydrocarbons in a gaseous
state and any naturally occurring mixture of one or more hydrocarbons in a
gaseous state and one or more of the trace gases hydrogen sulphide, nitrogen
and helium and carbon dioxide and in addition means and includes the residue
gas resulting from the treating or processing of natural gas;
(15) "PASA" means
Pipelines Authority of South Australia, a body corporate pursuant to the
provisions of the Pipelines Authority Act, 1967-1981 and any successor
which assumes the same, or substantially the same, functions as are performed
by PASA at the date hereof;
(16) "the PASA and
Producers (Right of Way) Agreement" means the agreement of even date with this
Indenture made between PASA and the Producers relating (amongst other things)
to the subject matter of recitals E and F of this Indenture as the same may be
varied or replaced from time to time;
(17) "person" in
addition to a natural person includes a body corporate and any agency,
authority or instrumentality of the Crown;
(18) "petroleum" means
any naturally occurring hydrocarbon or mixture of hydrocarbons in gaseous,
liquid or solid state (unless otherwise stated) whether occurring with or in
combination with other substances or not but does not include coal or oil
shale or any substance derived from coal or oil shale by subjecting it to an
industrial process;
(19) "pipeline" means
the pipeline which is the subject of Pipeline Licence No. 2;
(20) "the pipeline
land" means the land more particularly described in the PASA and Producers
(Right of Way) Agreement and for the purpose of identification only delineated
by the line marked "Liquids Pipeline" on the plan annexed hereto as Schedule
1;
(21) "Pipeline Licence
No. 2" means the pipeline licence of even date with this Indenture granted by
the Minister in favour of the Producers pursuant to the provisions of Part IIB
of the Petroleum Act, 1940-1981 of the State, as the same may be varied
or replaced from time to time, in the form now produced to and signed in the
margin thereof by the signatories to this Indenture for the purposes of
identification;
(22) "Product" means
crude oil, condensate, ethane and liquefied petroleum gas or any one or more
thereof;
(23) "the Proposed
Development Site" means the lands delineated and designated as such on the
plan annexed hereto as Schedule 2 and identified in writing by the words
"Proposed Development Site" thereon but does not include the Marine Facilities
or the Contiguous Land;
(24) "the Road
Reserve" means the road reserve referred to more particularly in Part XI
hereof;
(25) "the Services
Corridor" means lands more particularly referred to in Part VIII of this
Indenture:
(26) "the State" means
the State of South Australia;
and
(27) "The Stony Point
(Liquids Project) Ratification Bill, 1981" or the "Bill" means the Bill
for an Act intituled "the Stony Point (Liquids Project) Ratification Bill,
1981", being a Bill for an Act having those purposes and effects more
particularly described in clause 4 of this Indenture a true copy of which is
produced to the signatories to this Indenture and signed in the margin thereof
by the signatories hereto for the purposes of identification.
3. In this Indenture
and in the Schedules hereto where the case so admits or requires:
(1) Capital letters
when used shall be deemed to include the lower case and vice versa;
(2) Headings (save and
except for Part and clause and sub-clause numbers) shall form no part of nor
shall they be used in an interpretation of this Indenture;
(3) Reference to any
Act, regulation or by-law shall be deemed to include all amendments thereto
and to all statutory or other provisions from time to time substituted
therefor and reference to any particular section of any Act or paragraph of
any regulation or by-law shall be deemed to include all amendments thereto and
all statutory or other provisions from time to time substituted therefor;
(4) Reference to any
Minister of the Crown includes the person for the time being holding the
office or performing the duties of such Minister;
(5) The clauses of
this Indenture shall have effect in addition to and not in substitution for or
in derogation of any rights conferred upon the Producers or any of them in any
licence issued pursuant to the provisions of the Petroleum Act, 1940-1981
of the State, or of any other agreement referred to in this Indenture;
(6) Sums of money are
expressed in Australian currency;
and
(7) Where reference is
made to the Consumer Price Index or C.P.I. such reference shall be to the
Weighted Average Six States Capital Cities Consumer Price Index (All Groups)
as published by the Australian Bureau of Statistics (Base: 1966/67 = 100).
If the said Bureau ceases at any time to publish the said Consumer Price
Index, the State and the Producers shall confer and agree upon the adoption of
another suitable index or standard.
PART III
RATIFICATION
4. As soon as
practicable after the due execution of this Indenture the Government of the
State will sponsor and introduce into the Parliament of the State a Bill for
an Act to be intituled "the Stony Point (Liquids Project) Ratification
Bill, 1981," and endeavour to secure its passage and have it come into
operation as an Act prior to 31st December, 1981 for the purposes (amongst
other things) of:
(1) Approving and
ratifying this Indenture and to provide for the carrying of this Indenture
into effect;
(2) Authorising,
empowering and requiring the State, the Minister, the Minister of Marine and
PASA to do all things necessary or expedient for the carrying out and giving
of full effect to this Indenture, Pipeline Licence No. 2 and the PASA and
Producers (Right of Way) Agreement;
and
(3) Amending certain
Acts of Parliament of the State. The Bill shall be in the form now produced to
and signed in the margin thereof by the signatories to this Indenture for the
purposes of identification.
5. Clauses 1, 2, 3, 4,
5, 6, 7, 8 and 21, of this Indenture shall come into operation and take effect
upon the due execution of this Indenture by the parties hereto.
6. The remainder of
the clauses of this Indenture shall operate and take effect upon the Stony
Point (Liquids Project) Ratification Bill, 1981, commencing to operate as
an Act.
7. If the Stony Point
(Liquids Project) Ratification Bill, 1981, does not come into operation
as an Act on or before the 3lst day of December 1981, or such later date as
the parties to this Indenture may agree in writing, in the same terms as those
now contained in the Stony Point (Liquids Project) Ratification
Bill, 1981, or in such other terms as the parties hereto otherwise may
agree in writing, this Indenture shall lapse on and with effect from that date
and further the PASA and Producers (Right of Way) Agreement and Pipeline
Licence No. 2 shall lapse on and with effect from that date and in that event
none of the parties hereto shall have any claim at law or in equity against
any other of them with respect to any act, matter or thing arising out of,
done, performed or omitted to be done or performed under this indenture, the
PASA and Producers (Right of Way) Agreement or Pipeline Licence No. 2.
8. At any time before
the 31st day of December, 1981, at the request and with the concurrence of all
the Producers, the State shall agree to the withdrawal of a Producer from its
rights and obligations under this Indenture in circumstances where the
Producers inform the Minister that they are not satisfied that satisfactory
arrangements have been made for the financing of the obligations of the
relevant Producer in connection with the activities contemplated by this
Indenture and further providing that the other Producers have agreed with the
State to assume all of the obligations under this Indenture of the Producer
the subject of such request and in that event the rights and obligations of
that Producer under this Indenture and Pipeline Licence No. 2 and the PASA and
Producers (Right of Way) Agreement shall thereupon cease and shall ipso facto
be assumed by and become the rights and obligations of the other Producers but
in all other respects the rights and obligations of the other Producers under
this Indenture and Pipeline Licence No. 2 and the PASA and Producers (Right of
Way) Agreement shall be unaffected by such a withdrawal of a producer.
PART IV
THE LAND
9. The State shall
grant or procure the grant to the Producers or such person as the Producers
otherwise may nominate in writing to the State at the cost provided in clause
16 of this Indenture an estate in fee simple in the Proposed Development Site,
as soon as practicable after the Producers shall request the State to do so.
10. On or before the
31st day of March 1983, the State shall reserve an area of land not less than
Forty hectares in area, contiguous with the Proposed Development Site,
suitable for purposes related to the use of Product (hereinafter referred to
as the Contiguous Land). In the event that the Producers can demonstrate to
the reasonable satisfaction of the State that the Contiguous Land (or part
thereof) is required for purposes related to the use of Product, including but
not limited to the operation of any plant or equipment for the further
processing of Product by or for the benefit of the Producers, the State shall
grant an estate in fee simple in the Contiguous Land or part thereof (to the
extent demonstrated by the Producers in accordance with this clause) to the
Producers or such person as the Producers may nominate to the State in
writing.
Notwithstanding the foregoing in the event that a person not a party to this
Indenture demonstrates to the satisfaction of the Minister that he can use the
whole or a part of the Contiguous Land for purposes related to the use or
processing of Product the State may, with the concurrence of the Producers
(which concurrence shall not unreasonably be withheld), grant such land as an
estate in fee simple to such person.
11. For the purposes
of clause 10 of this Indenture the locating of the Services Corridor, road or
an environmentally sensitive area (being any area of land in the vicinity of
Stony Point in relation to the use of which restrictions have been imposed as
a consequence of the approval by an authority or department of the Government
of either the Commonwealth or the State of an Environmental Impact Statement
prepared on behalf of PASA or the Producers in relation to the subject matter
of this Indenture) between the Proposed Development Site and an area proposed
to be reserved as the Contiguous Land shall not prevent such proposed area
being reserved as the Contiguous Land.
12. After a period of
ten years has elapsed from the date of this Indenture the State may sell or
otherwise dispose of any interest in any part of the Contiguous Land not
granted under clause 10 hereof without the consent of the Producers.
13. Any estate in fee
simple granted by or at the direction of the State pursuant to clause 9 of
this Indenture or any estate in the Contiguous Land granted by or at the
direction of the State shall be freed and discharged of all interests, trusts,
dedications, reservations (save and except reservations of both minerals and
petroleum) mortgages, charges and encumbrances of any kind whatsoever unless
the person to whom any such grant shall be made by or at the direction of the
State otherwise shall agree in writing.
14. Any and all
buildings, structures, improvements and plant, equipment or other property of
whatsoever nature or kind now or hereafter situate upon or under or forming
part of or attached to or annexed to any land comprising the Proposed
Development Site or the land the subject of a grant of an estate in fee simple
to the Producers or any of them pursuant to clause 10 of this Indenture shall,
unless otherwise requested by the Producers, notwithstanding any provision of
any Act or regulation or of any rule of law or equity to the contrary effect,
be and shall be deemed conclusively to be chattels and shall be owned by and
may be transferred, mortgaged, charged or assigned by, or held on trust for,
the Producers or such of them as are entitled thereto.
15. Except with the
agreement of the Producers for the more effective working of the site, the
State will not compulsorily acquire nor resume possession of any land or
right, title or interest therein granted to the Producers or any of them or
such person as the Producers may nominate to the State in writing pursuant to
this Indenture for so long as such land is being used for or in connection
with processing of petroleum.
16. The sale price of
the Proposed Development Site to the Producers shall be an amount of money
equivalent to the reasonable costs incurred by the State in the vicinity of
Stony Point in making the Proposed Development Site available and suitable for
purposes contemplated by this Indenture which amount shall not exceed
$480 000 and shall be paid by the Producers to the State at a time to be
agreed between the State and the Producers.
17. The Contiguous
Land or part thereof granted to the Producers or any of them or a person
nominated in writing to the State by the Producers shall be granted free of
charge to the Producers providing that the Producers bear the cost of
surveying, fencing and other costs associated with the transfer of the
Contiguous Land and the cost of removal of unexploded military ordnance from
the Contiguous Land.
18. To the extent that
the provisions of the Coast Protection Act, 1972-1978 shall apply to the
Proposed Development Site or to the Contiguous Land any consent or approval
required to be given pursuant thereto shall be deemed properly and
sufficiently to have been given if given by the Minister, in writing.
PART V
SHACKS
19. The State agrees
that as soon as practicable after the Commencement Date it will cause all
necessary action to be taken after consultation with the Producers to gain or
resume possession of the Proposed Development Site. Without limiting the
generality of the foregoing the State will resume possession of land within
the boundaries of the Proposed Development Site which at the Commencement Date
shall be the subject of any Crown Lease for Holiday Accommodation Purposes,
granted pursuant to the Crown Lands Act, 1929-1978.
20. The Producers
agree that as soon as practicable after transfer of title to the Producers or
their nominee of the Proposed Development Site they will cause to be removed
at their cost any improvements (including any debris remaining after the
partial removal of improvements) remaining on the Proposed Development Site.
21. Providing that the
State has gained or resumed possession of the Proposed Development Site the
State shall at the request of the Producers give possession of the Proposed
Development Site or to such part thereof in respect of which it has gained or
resumed possession prior to the Commencement Date to the Producers or their
nominee for any purpose related to this Indenture but not including the
removal of any improvements erected on the Proposed Development Site. In that
event the granting of possession shall be on such terms and conditions as may
be imposed by the State.
22. The Producers
agree that they will repay to the State such reasonable sums of money which
the State from time to time shall pay after consultation with the producers to
any former lessee of the Crown as a consequence of the gaining or resumption
of possession of any land within the boundaries of the Proposed Development
Site the subject of a Crown Lease for Holiday Accommodation Purposes and will
pay to the State such reasonable sums of money which the State shall have paid
to any such former lessee by way of compensation in respect of the premature
termination of any such Crown Lease for Holiday Accommodation Purposes.
The sums of money in this clause shall include but not be limited to legal
costs and expenses incurred by the State in connection with legal proceedings
arising out of the gaining or resumption of possession of any such land.
23. During the
currency of this Indenture the parties to this Indenture shall comply with any
decision of the Commonwealth or State Governments arising out of assessment of
the Environmental Impact Statements referred to in recital I hereof so far as
a requirement shall be expressed therein to remove any improvements
constructed on any land whether or not herein referred to.
24. Without limiting
the generality of the foregoing, during the currency of this Indenture, if
circumstances change to affect the safe operation of any plant or equipment
located on the Proposed Development Site or the Marine Facilities or any other
land granted to the Producers or any of them being used or to be used for
activities contemplated pursuant to the provisions of this Indenture and the
removal of any shacks constructed in the vicinity of the Proposed Development
Site becomes necessary, the State, by notice in writing served on the
Producers and after consultation with the Producers, may require them to
remove or pay the reasonable costs of removal of all or any improvements in
the vicinity of the Proposed Development Site within a reasonable period of
time to be stated in the said notice and in that event the Producers shall
remove or pay the costs of removal of all improvements to which reference
shall be made in the said notice and, in addition, the Producers will pay to
the State such reasonable sums of money which the State shall have paid to any
former lessee by way of compensation in respect of the premature termination
of any Crown Lease for Holiday Accommodation Purposes relating to the subject
matter of this clause.
25. In the event that
during a period of fifteen years from the date of this Indenture the State
grants an interest in land at Stony Point in the vicinity of the Proposed
Development Site to a person other than the producers the State shall pay to
the Producers such amount as is agreed between the Minister and the Producers,
or in default of agreement as determined by arbitration in accordance with
Part XXII of this Indenture, which shall be an apportionment of the costs
incurred pursuant to clauses 23, 24 and 34.
26. The parties hereto
agree that they will take all steps reasonably necessary promptly and
effectually to implement the provisions of Part V of this Indenture.
PART VI
USE OF LAND
27. The provisions of
Parts IV, V and VI of the Planning and Development Act, 1966-1981, shall
not apply to the Proposed Development Site, the Contiguous Land and the
Services Corridor.
28. Any land to be
used for the purposes of this Indenture at Stony Point may be used for the
purpose of the construction and operation of any or all of the fractionation
plant, refinery, storage facilities, Marine Facilities and such other
facilities as may be used for activities contemplated pursuant to the
provisions of this Indenture and so as to permit the construction and
operation of any plant or equipment for the further processing of Product
whether or not by the Producers or any of them, notwithstanding the provisions
of the Planning and Development Act, 1966-1981 or any other Act.
PART VII
RATES, TAXES, IMPOSTS AND OTHER CHARGES
29.
(1) The State shall
ensure that notwithstanding the provisions of any legislation or regulation to
the contrary effect or anything done or purported to be done under any such
legislation or regulation the Producers or any of them or their nominee under
this Indenture shall not be subject to any rate, tax or impost which
discriminates adversely between the Producers and other industrial or
commercial enterprises in the State. A tax whether of general application or
limited application shall be deemed to discriminate adversely against the
Producers if it impinges unfairly on the Producers.
(2) Without limiting
the generality of sub-clause (1) of this clause until the 31st day of
December, 1992, a royalty, tax or impost which in law or in fact only applies
to the Producers shall be deemed to discriminate adversely against the
Producers provided that a royalty or pipeline licence fee referred to in this
Indenture shall not be deemed to discriminate adversely merely because the
Producers are the only persons in the State paying such a royalty or pipeline
licence fee.
30. Nothing in this
Indenture contained shall relieve the Producers from liability to pay to the
State or any instrumentality of the Crown by measure for the volumes of water
or electric power supplied to the Producers, at the appropriate tariff charge
as published from time to time by the Engineering and Water Supply Department
of the State and ETSA, together with an additional charge based upon the
reasonable costs incurred by the State or instrumentality of the Crown after
consultation with the Producers whether for capital or recurrent operating
costs or otherwise incurred in relation to the delivery to the Producers of
water or electric power in accordance with the succeeding clauses of this
Indenture.
PART VIII
THE SERVICES CORRIDOR
31. As soon as
practicable after the date of this Indenture the Minister, by notice in
writing to the Producers and after consultation with the Producers, will
identify precisely a part of the lands in the vicinity of Stony Point, not
being the Proposed Development Site, as the Services Corridor.
The approximate position and boundaries of the Services Corridor shall be as
delineated and designated on the plan annexed hereto as Schedule 3 and
indicated by the words "Services Corridor" thereon. The land so identified by
the Minister is referred to herein as the "Services Corridor" and shall be
owned by the State.
32. The State after
due consultation between the Minister or his nominee and the Producers shall
grant free of charge to the Producers, their servants, agents, employees and
contractors full right, liberty and authority:—
(1) To install,
repair, examine and remove loading, transfer and return pipelines (and such
other structures as the Minister may approve) on over or under any part of the
Services Corridor adjacent to the Proposed Development Site and foreshore and
for this purpose to enter upon, break the surface of and restore the surface
of the Services Corridor or foreshore; and
(2) To have access to
and over the Services Corridor and foreshore in order to conduct activities
contemplated under this Indenture and to authorise other persons to have
access to the foreshore for purposes related to those activities.
33. As soon as
practicable and in any event not later than ninety days after the date of this
Indenture the Producers shall use their best endeavours to engage a contractor
on their behalf for the purpose of removing unexploded military ordnance from
the Services Corridor. The contractor so engaged shall possess sufficient
knowledge, experience, skill, plant and equipment to remove unexploded
military ordnance from the Services Corridor in a proper and workmanlike
manner and shall be approved by the Minister.
34. The cost of
removal of unexploded military ordnance from the Services Corridor shall be
borne by the Producers.
The Producers shall comply at their cost with the requirements of the
Department of Environment and Planning of the State in relation to
rehabilitation of the Services Corridor after removal of unexploded military
ordnance.
35. The Producers
indemnify and save harmless from all loss, actions, claims, suits, demands,
compensation or the like which the State or the Minister or any of its or
their servants, agents, instrumentalities or employees may incur during the
currency of this Indenture as a result of loss of, injury or damage to any
person or any property owned by any person arising out of or incidental to the
detonation, ignition or explosion of any gas or other substance emanating from
any such unexploded military ordnance in or on the Services Corridor providing
that any such person suffering loss of, or injury or damage either to that
person or his property shall, at the time the loss, injury or damage was
sustained was engaged on business or activity or a course of conduct related
to the operations of the Producers pursuant to this Indenture.
The State will consult with the Producers before acknowledging liability in
respect of any claim for compensation or the like made against the State in
this regard.
PART IX
ELECTRIC POWER
36. The State will
procure ETSA to supply electric power to the producers or their nominee during
the currency of this Indenture in accordance with their requirements under
ETSA's Conditions of Supply. ETSA will not be required to supply electric
power in excess of 80 kilowatts before the first day of January 1983 or to
supply electric power between the first day of January 1983 and the thirty
first day of December 1983 in excess of 3 megawatts or on and after the first
day of January 1984 in excess of 10 megawatts.
PART X
WATER
37. The State shall
supply water to the proposed Development Site from the Morgan to Whyalla
Pipeline at an approximate rate of flow of 13 litres per second under
conditions to be agreed between the Producers and the Engineering and Water
Supply Department of the State.
38. Notwithstanding
anything in this Indenture appearing, the State shall use its best endeavours
to ensure that the supply of water to the Proposed Development Site shall
commence within 4 months of notification in writing to the State by the
Producers of completion of the work of the contractor pursuant to clause 33 of
this Indenture.
39. For the purpose of
the supply of mains water the State will cause a water pipeline to be laid as
soon as practicable from the existing Morgan to Whyalla water pipeline to a
point on the Proposed Development Site to be fixed between the State and the
Producers. The costs of and incidental to laying the water pipeline shall be
subject to the provisions of Schedule 4 to this Indenture.
40. The Producers
agree that they will accept all volumes of mains water supplied pursuant to
this Indenture in the physical, chemical and biological condition in which
they arrive at the Proposed Development Site.
41. The Producers may
at their expense but without payment of any rental, royalty or other charge
draw water from the sea and use such water for fire fighting and such other
activities contemplated pursuant to the provisions of this Indenture which
other activities shall be subject to the approval of the Minister.
42. The Producers
after consultation and agreement with the State (which agreement shall not
unreasonably be withheld) at their expense may draw water from underground
aquifers in the vicinity of Stony Point for use for activities contemplated
pursuant to the provisions of this Indenture and the State shall grant and
continue in force without payment of any discriminatory rental, royalty or
other charge such licenses as may be necessary to ensure the continued rights
of the Producers or their nominee to draw water from the underground aquifers.
43. The Producers
shall pay water rates as provided for by agreement between the Producers and
the State. In setting such rates, account will be taken of normal water rates
charged to users in the State and of the additional costs incurred by the
State in supplying water to the Producers.
44. Should a party or
parties (including the State or any instrumentality of the Crown) other than
the Producers draw substantial amounts of mains water from or through the
water pipeline or water works referred to in clause 39 of this Indenture that
other party or those other parties shall pay additional water rates which take
account of the additional costs incurred by the State and referred to in
Clause 43, having regard to the proportions in which the water supplies are
used by the Producers and that other party or those other parties.
PART XI
THE ROAD
45. As soon as
practicable after the date of this Indenture the Minister by notice in writing
to the Producers shall indicate the land within the Services Corridor between
the Lincoln Highway end thereof and the landward end of the proposed Jetty at
the other end with an additional part thereof of the road extending to and
meeting the existing Lowly Point Road which shall be the Road Reserve for the
purposes of this Indenture.
46. As soon as
practicable the State will cause such action as may be necessary to be taken
to have the Road Reserve dedicated as a public road.
The State shall cause construction of roads within the Road Reserve to
commence and be completed as soon as practicable under conditions to be agreed
between the Producers and the State.
47. The roads within
the Road Reserve shall be heavy-duty bituminous sealed roads.
48. All road works
shall be carried out in such manner and at such times as to minimise
restrictions on vehicular or personnel access to the Proposed Development Site
as far as reasonably practicable.
49. During the
currency of this Indenture the State will cause the roads within the Road
Reserve to be kept and maintained in a fit and proper state of repair. The
Producers shall pay a tariff as provided for by agreement between the
Producers and the State.
50. Should a party or
parties (including the State or any instrumentality of the Crown) other than
the Producers or a party engaged on the business of the Producers become a
substantial user of the roads within the Road Reserve that other party or
those other parties shall contribute to the State a portion of the aforesaid
tariff on a basis to be agreed between the Producers and the State, having
regard to the proportions in which the aforesaid roads are used by the
Producers and that other party or those other parties.
51. The cost of
constructing the roads within the Road Reserve shall be subject to the
provisions of Schedule 4 of this Indenture.
If, in carrying out activities under this Indenture, the Producers make
excavations within the Road Reserve, they shall comply with conditions imposed
by the Highways Department and shall restore the Road Reserve at their cost.
PART XII
PIPELINE
52. The Producers have
been granted Pipeline Licence No. 2, to construct, install, own and operate a
pipeline for the conveyance of Product from Moomba to Stony Point for an
initial term of twenty-one years, which licence shall be renewed for further
periods of twenty-one years at the request of the Producers or for such lesser
periods as they may nominate.
The said licence may be terminated or cancelled only in the circumstances and
in the manner specified in Pipeline Licence No. 2 (including, but not limited
to the manner referred to in Condition 22 of that licence) or in such other
circumstances as may be agreed between the Producers and the Minister. The
Conditions of the licence may be varied only with the consent of the
Producers. Ownership of the pipeline shall remain with the Producers subject
to the Conditions of Pipeline Licence No. 2. Subject to compliance with the
terms of this Indenture and compliance with the Conditions of Pipeline Licence
No. 2 the rights conferred upon the Producers by this clause shall continue
during the currency of this Indenture.
53. To the extent that
it is necessary to do so the State and the Minister concur in the execution by
PASA and in the contents thereof of the PASA and Producers (Right of Way)
Agreement.
54. The Producers
shall enter into an agreement relating to the maintenance of the pipeline by
PASA on terms to be agreed between the Producers and PASA.
55.
(1) A communications
system shall be constructed which shall provide for telemetry of such status
information and pressure, flow and other operating data as the Minister shall
require, and remote control of valves for routine and emergency operation, and
voice communication to locations along and in the near vicinity of the
pipeline and mobile vehicles employed for purposes relating to the operation
or maintenance of the pipeline.
(2) The Producers
shall enter into an agreement with PASA on terms to be mutually agreed between
the Producers and PASA as to the ownership and use of the aforesaid
communications system.
(3) It is agreed that
the owner of the aforesaid communications system shall be the person who shall
cause the communications system to be constructed and who shall bear the cost
thereof.
56. The State agrees
that it will take such action as may be necessary in order to ensure that
during the currency of Pipeline Licence No. 2. the right, title and interest
in the pipeline land to be acquired by PASA for the purposes of the PASA and
Producers (Right of Way) Agreement will be maintained, preserved and protected
against any adverse interest or claim and whether or not by the Crown in right
of the State and the State undertakes that the pipeline land will be available
during the currency of Pipeline Licence No. 2. for utilization by the
Producers for the purposes of the pipeline on terms similar to those set forth
in the PASA and Producers (Right of Way) Agreement.
57. The Producers will
not do or perform, nor omit to be done or performed, nor will they knowingly
cause or suffer to be done, performed or omitted to be done any act, matter or
thing which shall result in a material breach of a Condition of Pipeline
Licence No. 2.
58. In the event that
during the currency of this Indenture the Minister exercises the powers
conferred on him by Section 80 l of the Petroleum Act, 1940-1981, the
Minister agrees that in determining the terms between a licensee who holds a
petroleum production licence under that Act and the Producers relating to the
conveying of petroleum the said terms shall, if the Producers so request,
provide:
(1) That the Producers
and each of them shall have priority of use of the pipeline;
(2) That the use of
the pipeline by any such licensee will be compatible with the use of the
pipeline by the Producers;
(3) That the use of
the pipeline by any such licensee will not result in any deleterious effect to
the Producers' petroleum or to the pipeline; and
(4) That use of the
pipeline by any such licensee shall only be permitted after satisfactory
arrangements have been made in relation to measurement and so as to ensure
satisfactory identification of ownership of petroleum.
Any fee to be charged by the Producers to the holder of the petroleum
production licence for conveying the petroleum if included in terms determined
by the Minister shall for each period not be lower than:
(i)
a sum of money equivalent to the actual cost incurred by
the Producers in operating the pipeline for that period including without
limitation the pipeline licence fee referred to in the next succeeding clause;
together with
(ii)
a sum of money called the capital cost component. Such
capital cost component for that period shall be equal to the equal periodic
payment calculated on a credit foncier basis by reference to the replacement
value of the pipeline at the time of the Minister's determination, a 15 year
amortization period and an interest rate of 18 per centum per annum;
apportioned in the manner following:
The proportion of the foregoing amounts to be borne by the licensee who holds
a petroleum production licence shall be calculated on the proportion which the
volume of petroleum owned by that party which is conveyed in the pipeline
during a period of time bears to the total volume of petroleum conveyed in the
pipeline during the same period of time.
The basis of calculations necessary for the foregoing shall be agreed between
the Minister and the Producers or, failing agreement, shall be determined by
arbitration in accordance with Part XXII of this Indenture.
59.
(1) Notwithstanding
the provisions of any Act or regulation or rule of law or equity to the
contrary effect and subject to this clause the Producers, beginning with the
first year in which liquid petroleum conveyed through the pipeline is sold by
the Producers and ending with the year 1992, shall pay to the State on the
15th day of March in each year an annual licence fee for utilization of the
pipeline (hereinafter referred to as "the pipeline licence fee") in respect of
each year of Five hundred thousand dollars ($500 000) indexed as provided
in sub-clause (2) of this clause.
(2)
The pipeline licence fee for each year shall be indexed by relation to and
shall vary only in accordance with movements in the Consumer Price Index
between the December quarter 1981 and the December quarter immediately
preceding the year in which the licence fee is to apply and shall not be
subject to any other variations during the aforesaid period.
(3) Notwithstanding
the Petroleum Act, 1940-1981 no pipeline licence fee shall be payable
prior to the first year in which liquid petroleum is sold by the Producers
from Stony Point.
(4) At the end of the
first year in which liquid petroleum is sold by the Producers from Stony Point
the Producers shall receive a rebate from the State of that proportion of
the pipeline licence fee which one million four hundred thousand tonnes less
the number of tonnes of Product conveyed through the pipeline in that year
bears to one million four hundred thousand tonnes.
(5) During the Period
referred to in sub-clause (1) the pipeline licence fee shall be in
substitution for any other fee, levy or impost that would otherwise be payable
by the Producers for use of the pipeline pursuant to the provisions of the
Petroleum Act, 1940-1981 or otherwise.
(6) If
the pipeline licence fee is not paid by the due date as aforesaid an amount of
ten per centum thereof shall be added thereto which shall be recoverable by
the State as part of the pipeline licence fee.
60. Subject always to
Condition 23 Pipeline Licence No. 2 the pipeline and all plant, equipment and
other property affixed thereto or used in connection therewith or in relation
to the operation thereof owned by the Producers or any of them shall
notwithstanding any provision of any Act or regulation or of any rule of law
or equity to the contrary effect be and shall be deemed conclusively to be
chattels and shall be owned by and may be transferred, mortgaged, charged or
assigned by, or held on trust for, the Producers or such of them as are
entitled thereto.
PART XIII
FURTHER PROCESSING
61. Having regard to
the State's desire for further processing of Product in the State, the
Producers will investigate the storage and related processing of ethane for
use as petrochemical feedstock in the State and the practicability of the
construction and operation of a refinery in the region of Stony Point. The
Producers in consultation with the State will provide to the State on or
before 31st day of March 1983 information relating to the scope of their
investigations and further on or before 31st day of March 1984 a detailed
report in writing relating to the result of their investigations in this
regard. The Producers from time to time will enter into discussions with the
Minister concerning the utilisation of Product for those purposes.
In the event that the investigations do not lead to the projects contemplated
by this clause the report will be reviewed every three years in the light of
the then current circumstances. Without limiting the generality of the
foregoing, the Producers will, if further treating of Product in the State is
technically and economically feasible, encourage and expedite such treatment
and development. The Producers will give preference to treatment and
development within the State if such is technically and economically feasible,
providing that nothing in this clause will oblige the Producers to sell
Product on other than commercial terms.
PART XIV
PROTECTION OF GAS SUPPLY
62. In carrying out
the activities contemplated under this Indenture the Producers shall have
regard to their obligations under existing and future sales agreements with
PASA.
PART XV
THE MARINE FACILITIES
63. Ownership, title
and risk of and to the following facilities, which shall be constructed by the
Producers in accordance with approvals granted by the Minister of Marine under
the Harbors Act, 1936-1981, shall be transferred to the State at the date
of practical completion thereof (the date of such transfer being in this Part
XV referred to as "the transfer date") free of all mortgages, liens, charges,
encumbrances or the like.
Forthwith upon transfer the State shall pay the Producers a sum equal to the
cost incurred by the Producers in the design and construction of the aforesaid
facilities together with consultancy fees.
The facilities to be so transferred (hereinafter referred to as the
"transferred facilities") shall be the Jetty trestle, platforms, mooring and
breasting dolphins, all necessary service facilities and other facilities for
the berthing of vessels at Stony Point, as detailed in the Producers' plans
and specifications for the Marine Facilities accepted and approved by the
Minister of Marine, but shall not include any temporary loading facilities or
any pumps, pipes, loading arms and other loading facilities which shall be the
subject of a separate licence agreement between the Producers and the Minister
of Marine.
64. The Marine
Facilities other than those transferred to the State pursuant to clause 63 of
this Indenture, and the transferred facilities prior to transfer of ownership
thereof to the State, shall be owned by the Producers or such of them as have
an ownership interest therein from time to time.
65. The State shall
ensure that the Producers have granted to them on reasonable terms and
conditions and that there are continued in force during the currency of this
Indenture free of charge to the Producers, all such rights and licences as may
be required to enable the Producers or any of them to construct and install,
operate and have the use and enjoyment of the Marine Facilities (including any
temporary loading facilities required by the Producers) for the purposes
contemplated by this Indenture, provided however that except as expressly
provided in this Indenture, this Indenture shall not be deemed to confer any
exemption from wharfage dues.
66. The Producers
shall deposit with the State at a time and in a manner to be agreed a sum
equal to the amount paid by the State to the Producers pursuant to clause 63
of this Indenture to secure the due observance by the Producers of the terms
of this Part XV of this Indenture on their part to be observed and also to
secure payment of the amounts due to be paid to the State by the Producers
under this Part. To the extent of any shortfall in payment of amounts owing to
the State pursuant to this Part in any year the Producers shall to that extent
forfeit the moneys which would otherwise have been payable to the Producers
pursuant to clause 67 of this Indenture.
67. The security
deposit referred to in clause 66 of this Indenture together with interest
thereon at the rate of 20 per centum per annum shall, subject to clause 66 be
repaid by the State to the Producers annually calculated on a credit foncier
system by twenty equal instalments in the manner to be provided for by
agreement between the Producers and the State.
68. The Producers
shall have priority of use of the transferred facilities. The manner in which
the priority shall be effected shall be the subject of agreement with the
State.
69. Without prejudice
to the provisions of clause 68 of this Indenture, the Minister may in his
discretion permit the use of the transferred facilities by third parties
(being persons other than the Producers or any of them) subject to such use
being compatible with the Producers' operations. In exercising his discretion
the Minister shall have regard to:
(1) the full extent of
the impact of the operations of the third parties including the potential for
industrial disputes, shipping programmes, the number of workers and operations
of any factories or fabrication works upon the Producers' operations, and
(2) the safety of and
potential for damage to the Producers' operations from the third parties'
products and operations.
70. The Producers
shall during the first twenty years from and including the transfer date be
responsible for the stevedoring and loading of vessels associated with the
Marine Facilities referred to in clause 63 of this Indenture. Unless and to
the extent otherwise agreed, mooring and unmooring of vessels shall be
undertaken by the Producers' employees, agents or contractors, subject to
industrial arrangements suitable to the State and the Producers being made and
subject to the reasonable supervision and directions of the Harbor Master of
the port at Stony Point having regard to normal port practice. The cost of
such mooring and unmooring of vessels shall be paid by the State to the
Producers at rates not to exceed those payable by the State to members of
mooring gangs under appropriate industrial awards.
71. During 1982 the
Producers shall in consultation with the State prepare terminal rules in
respect of their onshore facilities at Stony Point and the State in addition
to the Regulations under the laws of the State shall in consultation with the
Producers prepare port rules.
72.
(1) In respect of each
of the first twenty years from and including the year in which the transfer
date occurs there shall be paid by the Producers to the State, wharfage dues
(to the exclusion of all other wharfage dues that would otherwise be payable
by the Producers for the port at Stony Point) being an amount per tonne of
Product shipped determined by the following formula:—
Where
a = the annual amount required to amortise in 20 annual payments under a
credit foncier system the sum specified in the second paragraph of clause 63
of this Indenture at an interest rate of 20 per centum per annum.
b = the amount determined for any third party user of the transferred
facilities under sub-clause 72(2) or 72(3) of this clause for that year.
c and e = amounts of $1.50 and 70 cents respectively as adjusted each year by
the percentage change in the Consumer Price Index between the December quarter
1981 and the December quarter in the year preceding the year in which the
amounts are to apply.
d = the amount of throughput in tonnes across or through the transferred
facilities by the Producers up to and including the first one million tonnes
for each year.
f = the amount of throughput in tonnes, if any, across or through the
transferred facilities by the Producers after and in excess of the first one
million tonnes for each year.
g = the total amount of throughput in tonnes across or through the transferred
facilities by the Producers during each year.
Provided always that:
(i)
in respect of commodities passing across or through the
transferred facilities that are shipped to another port in the State, the
amounts c and e will be halved.
(ii)
Subject to sub-clause 72(1) (c) below, the sum (c x d) +
(e x f) in the above formula shall not be less than the amount determined by
adjusting $1 500 000 by the indexation formula provided in the
definitions of "c" and "e" in this sub-clause 72(1).
(iii)
In the calendar year of transfer of the facilities the
amount of $1 500 000 (as indexed) referred to in sub-clause 72(1)
(b) above will be adjusted pro rata to reflect the number of calendar months
(or part thereof) remaining after the transfer date in that year.
(iv)
In the event that total throughput by the Producers for
any year is zero, payment will be calculated as if throughput was one tonne.
(v)
Should (a - b) in the wharfage calculation formula be a
negative amount, zero is to be substituted.
(2) In the event of
use of the said transferred facilities by third parties during the first
twenty years from and including the transfer date the State and Producers will
confer as to the appropriate contribution payable as a portion of wharfage
dues to be paid by such third parties during the said period that shall be
properly regarded as attributable to the provision of the transferred
facilities pursuant to this Indenture. In determining such portion of the
wharfage dues regard shall be had to the value and profitability of the
commodity to be shipped by such third party over the transferred facilities,
current interest rates and the value of the transferred facilities and the
objectives reflected in clause 61 of this Indenture.
(3) In the event that
the Producers and the State cannot reach an agreement under clause 72(2),
the amount b in clause 72(1) of this Indenture shall be calculated as follows:
a sum determined under a credit foncier system based on the capital cost of
that part of the transferred facilities used by third parties (being the
original capital cost of the transferred facilities together with interest
incurred prior to the transfer date) escalated annually by half the bond rate
(as hereinafter defined) from and including the transfer date amortized over a
period of twenty years with a rate of interest of 20 per centum per annum
apportioned by reference to the total units of throughput of the Producers and
any third party. That part of the transferred facilities used by the third
party means that portion of the total cost of the transferred facilities that
is actually used by the third party. The calculation referred to herein shall,
in the case of a third party which has a demonstrable continuity of use, be
made only on the basis of escalation annually by half the bond rate up to the
time of commencement of use.
(4) After the first
twenty years from and including the transfer date the Producers shall pay the
normal wharfage dues on commodities similar to those shipped by the Producers
applicable in the State for use of the transferred facilities.
(5) The "bond rate"
referred to in this clause 72 means the yield on long term Australian
Government bonds in effect from time to time.
73. The wharfage dues
the subject of clause 72 of this Indenture for the first twenty year period
therein referred to shall be paid to the State by the Producers in the manner
provided for by agreement between the Producers and the State.
74. From and including
the transfer date the State shall promptly carry out and effect repair,
maintenance and insurance of the transferred facilities and shall be
responsible for the provision of a Harbor Master for the port at Stony Point
so as to enable the Producers at all times to have use and enjoyment of the
Marine Facilities for the purposes contemplated by this Indenture.
75. Prior to the
transfer date:
(1) The Producers
shall be responsible under the supervision and direction of the Harbor Master
for operating temporary loading facilities, if any, which may have been
constructed;
(2) The Producers
shall pay for the maintenance and insurance of the said temporary loading
facility;
(3) The Producers
shall be responsible for the stevedoring and loading of vessels associated
with the temporary loading facilities. Unless and to the extent otherwise
agreed, mooring and unmooring of vessels shall be undertaken by the Producers'
employees, agents or contractors, subject to industrial arrangements suitable
to the State and the Producers being made and subject to the reasonable
supervision and directions of the Harbor Master of the port at Stony Point
having regard to normal port practice; and
(4) There shall be
paid by the Producers to the State wharfage dues at the rate of 50 cents for
each tonne of Product shipped.
PART XVI
STAMP DUTY
76. The State agrees
that:
(1) This Indenture and
any transfer of the Marine Facilities and pipeline to the State;
(2) Any document
granting title to or an interest in any lands pursuant to this Indenture;
(3) Each document
establishing or recording the interests of the Producers inter se in any one
or more of the pipeline and all facilities downstream from and including the
point where the pipeline commences as provided in Pipeline Licence No. 2;
(4) Pipeline Licence
No. 2;
(5) The PASA and
Producers (Right of Way) Agreement;
(6) The proportion of
the consideration or the principal sum expressed in each mortgage, charge,
encumbrance or other security, covenant or agreement executed by the Producers
or any of them to the extent of and attributable to the financing of the
Producers' (or any of their) participation in the activities contemplated
pursuant to the provisions of Parts IX, X, XI, XII and XV of this Indenture,
or under the PASA and Producers (Right of Way) Agreement or Pipeline Licence
No. 2;
(7) Each cross charge
created in connection with any document referred to in sub-clause (3) of this
clause contemporaneously with the execution thereof;
(8) Each transfer,
assignment or other disposition, made within one year of the date of the
ratification of the Bill, by the Producers or any of them inter se or to a
related corporation (as defined in Section 6(5) of the Companies
Act, 1962-1980) of the transferor, assignor or disponor of their or its
right, title and interest or any part thereof in any or all of the documents
referred to in subclauses (1) to (7) (both inclusive) of this clause;
(9) Each amount or
proportion of an amount which would otherwise be included in a statement
lodged pursuant to section 31f of the Stamp Duties Act 1923-1981, as it
relates to loans to the Producers or any of them, and as certified by the
Producers to the Commissioner of Stamps, to the extent of and attributable to
the financing of the Producers' (or any of their) participation in the
activities contemplated pursuant to the provisions of Parts IX, X, XI, XII and
XV of this Indenture, or under the PASA and Producers (Right of Way) Agreement
or Pipeline Licence No. 2; and
(10) Any other
document or instrument which the State agrees; shall be exempt from any duty
under the Stamp Duties Act, 1923-1981.
77. If prior to the
Commencement Date stamp duty has been assessed and paid on any instrument or
other document referred to in clause 76 of this Indenture, the State shall on
or after the Commencement Date on demand of the Producers or any of them
refund stamp duty paid on any such instrument or other document to the person
who paid the same.
PART XVII
ENVIRONMENTAL PROTECTION
78. In performing any
act, matter or thing, pursuant to this Indenture, Pipeline Licence No. 2, the
PASA and Producers (Right of Way) Agreement or any other agreement pursuant
hereto or thereto the Producers will comply with the laws of the Commonwealth
and State in force in the State from time to time relating to the protection
of the environment and all standards from time to time set thereunder.
79.
(1) Without limiting
the generality of anything hereinbefore appearing the Producers will observe
the environmental standards contained in the Environmental Impact Statement
referred to in recital (I) hereof and such other standards relating to worker
exposure and safety standards, air emission standards, marine spillage, water
discharge and noise as may be determined during the development of detailed
engineering of the proposed Stony Point facilities and agreed in consultation
with the Producers.
(2) For the purpose of
the Noise Control Act, 1976-1977, the Stony Point area shall be described
as predominantly industrial.
80. Notwithstanding
the provisions of clauses 78 and 79 of this Indenture, the State acknowledges
that the Producers in assessing the economic feasibility of the activities
contemplated by this Indenture have had regard to the laws, regulations and
standards relative to the environment existing at the date of this Indenture.
Should there occur during the currency of this Indenture any changes to any
such laws, regulations or standards of or applied by the State the result of
which is to impose substantial additional costs upon the Producers the State
shall upon request of the Producers give sympathetic consideration to
ameliorating the adverse effects of such additional costs by effecting a
reduction in charges and levies payable by the Producers to the State pursuant
to this Indenture or in such other manner as may be agreed between the State
and the Producers.
81. The Producers and
the State shall as soon as practicable after the date of this Indenture
establish a group to be known as the "Stony Point Environmental Consultative
Group" consisting of representatives of the State, representatives of the
producers representatives of other major industries as may be established from
time to time in the Stony Point region and specialists in environmental
matters for the purpose of consulting on matters relating to the protection of
the environment in the Stony Point region.
PART XVIII
STATE PREFERENCE
82. As far as
reasonably and commercially practicable the Producers during the currency of
this Indenture and for activities contemplated by this Indenture shall:
(1) Use the services
of engineers, surveyors, architects and other professional consultants
resident and available within the State;
(2) Use labour
available within the State;
(3) When calling for
tenders and letting contracts for works, materials, plant, equipment and
supplies ensure that South Australian suppliers, manufacturers and contractors
are given reasonable opportunity to tender or quote; and
(4) Give proper
consideration and where possible preference to South Australian suppliers,
manufacturers and contractors when letting contracts or placing orders for
works, materials, plant, equipment and supplies where price, quality,
delivery, service and other commercial considerations are equal to or better
than those obtainable elsewhere.
83. From time to time
during the currency of this Indenture when requested by the Minister the
Producers shall submit a report in writing concerning their implementation of
the provisions of clause 82 of this Indenture.
PART XIX
VARIATIONS
84. Any of the
provisions of this Indenture may from time to time be cancelled, added to,
varied or replaced by agreement between the parties.
The Minister shall cause any such agreement to be laid on the Table of each
House of Parliament within the twelve sitting days next following its
execution. Either House may, within twelve sittings days of that House after
the agreement has been laid before it, pass a resolution disallowing the
agreement but if after the last day on which the agreement might have been
disallowed neither House has passed such a resolution the agreement shall have
effect on and from the next day after that day.
PART XX
ASSIGNMENT
85. The interest of
any individual Producer pursuant to this Indenture shall not be assigned,
transferred, sublet, or made the subject of any trust or other dealing,
whether directly or indirectly, other than to another Producer or to a related
corporation of that individual Producer, without the consent in writing of the
Minister; and any such transaction entered into without such consent shall be
void; providing that any such interest of any individual Producer may be
mortgaged, charged or otherwise encumbered or made the subject of a security
interest without the consent of the Minister or alternatively with the consent
of the Minister and then subject only to such conditions (if any) as the
Minister may reasonably impose after having due regard to the needs of the
Producers or any of them to raise finance for the activities contemplated by
this Indenture on the most favourable terms available.
A mortgagee, chargee or encumbrancee under a mortgage, charge, encumbrance or
other security interest which has been consented to by the Minister as
aforesaid in enforcing its security, or any receiver or receiver and manager
of a Producer thereunder or any transferree or assignee thereof shall in the
exercise of its rights be subject only to such reasonable conditions (if any)
as the Minister shall have imposed at the time of his approval to the creation
of the mortgage, charge, encumbrance or other security interest.
A mortgagee, chargee or encumbrancee under a mortgage, charge, encumbrance or
other security interest which has not been consented to by the Minister as
aforesaid in enforcing its security, or any receiver or receiver and manager
of a Producer thereunder or any transferee or assignee thereof shall not
assign, transfer, sublet or make the subject of any trust or other dealing
without the consent in writing of the Minister.
The Minister may, before consenting to any such transaction, require such
information as he thinks fit with respect thereto, and shall have a discretion
to grant or refuse such consent but shall not capriciously or unreasonably
refuse it and shall not grant any such consent on unreasonable conditions.
Where a transaction has received the consent of the Minister under this clause
85 subject to conditions, and any of those conditions is subsequently
satisfied, the Producers or any of them shall, within twenty-eight days, serve
personally or by post upon the Minister, notice in writing of that fact.
For the purposes of this clause "related corporation" shall have the meaning
ascribed to that term in section 6(5) of the Companies Act 1962-1980.
86.
(1) If any individual
Producer purports, without the consent in writing of the Minister, to assign,
transfer or sublet any interest under this Indenture or to make such interest
the subject of any trust or other dealing which requires the consent of the
Minister as aforesaid the Producer shall be in default under this indenture.
(2) Any purported
assignment or transfer of the interest or part thereof of any individual
Producer pursuant to this Indenture shall be subject to the assignee or
transferee executing in favour of the State and the Minister and the other
Producers a deed of covenant in a form to be agreed between the Minister and
the Producers to comply with, observe and perform the provisions of this
Indenture in regard to the interest so assigned.
PART XXI
RELATIONSHIP OF THE PARTIES
87. Nothing in this
Indenture contained shall be construed as constituting a joint venture or
partnership between the State or the Minister of the one part and the
Producers of the other part nor shall anything herein contained impose on the
State or the Minister or the Minister of Marine or the Director or PASA or the
Producers or any of them an obligation to expend monies or to procure any act,
matter or thing nor to omit to do or procure any act, matter or thing save and
except such as are provided by express words in this Indenture.
88. The liability of
each Producer under this Indenture shall be several and not joint nor joint
and several and the liability of each Producer shall be determined in
accordance with the extent of its ownership of any interest from time to time
in any asset or activity contemplated under this Indenture.
In the event that the State or PASA shall have a claim against a Producer or
Producers the Producers will inform the State as soon as practicable of the
extent of ownership of the Producer or Producers in any asset or activity
contemplated under this Indenture relating to the subject matter of the claim.
PART XXII
ARBITRATION
89. The provisions of
section 24a of the Arbitration Act, 1891-1974 shall not apply to this
Indenture or in respect of any difference or dispute arising out of this
Indenture and any such difference or dispute referred by the parties to this
Indenture or any of them shall be and be deemed to be a submission to
arbitration within the meaning of the Arbitration Act, 1891-1974
providing that only differences or disputes expressed in this Indenture as
requiring to be referred to arbitration shall be referred to arbitration.
90. In the event that
any difference or dispute is referred to arbitration by the parties to this
Indenture or any of them it shall be referred to the arbitration of three
arbitrators.
91. The appointment of
the arbitrators shall be made as follows:
(1) Within thirty days
after the reference by the parties to this Indenture or any of them of a
difference or dispute to arbitration the State and the Minister collectively
acting shall appoint one arbitrator and the Producers involved in the
arbitration collectively acting (if more than one Producer shall be so
involved) also shall appoint one arbitrator and the third arbitrator shall be
appointed by the two arbitrators so appointed;
and
(2) In the event that
either the State and the Minister on the one hand or the Producers involved in
the arbitration on the other hand shall fail so to appoint an arbitrator
within thirty days after the reference by the parties to this Indenture or any
of them of a difference or dispute to arbitration or if the two arbitrators
appointed by the State and the Minister on the one hand and the Producers
involved in the arbitration on the other hand shall fail to appoint a third
arbitrator within thirty days after their appointment then the Senior Puisne
Judge for the time being of the Supreme Court of South Australia may appoint
the first, second or third arbitrator to constitute or complete the Board of
arbitrators as the circumstances may require.
92. The arbitration
award shall be final and binding upon the parties to such arbitration and the
decision of any two of the arbitrators shall be binding.
93. No party to this
Indenture shall take any difference or dispute referred to arbitration to any
Court until after an arbitration award shall have been made but this clause 93
shall not operate except as provided in clause 89 so as to compel any party to
this Indenture to refer any difference or dispute to arbitration in any case.
PART XXIII
CURRENCY OF INDENTURE
94. This Indenture
shall continue in full force and effect unless cancelled in accordance with
clauses 84 or 99 of this Indenture or until it lapses in accordance with
clause 7 of this indenture.
PART XXV
REPRESENTATIONS AND ACKNOWLEDGEMENTS
96. The Producers
acknowledge (as is testified by their execution hereof) that in entering into
this Indenture and the PASA and Producers (Right of Way) Agreement they have
not relied on any representation, warranty, guarantee or stipulation made by
or on behalf of the State, the Minister or PASA and, without limiting the
generality of the foregoing, they have made their own enquiries and satisfied
themselves in all respects as to the fitness of plant, equipment and
facilities to be used in connection with the subject matter of this Indenture
and the suitability of Stony Point as a port for use in connection with the
subject matter of this Indenture.
97. The State and the
Minister acknowledge (as is testified by their execution hereof) that in
entering into this Indenture they have not relied on any representation,
warranty, guarantee or stipulation made by or on behalf of the Producers save
for those referred to in this Indenture or otherwise as expressly agreed
between the parties by express words or necessary implication.
98. Neither the State
nor the Minister shall take any action against the Producers or any of them in
relation to any work properly accepted by the Producers in good faith,
including without limitation design work conducted by PASA in consultation
with Bechtel-Kinhill, performed by PASA in relation to the pipeline and
related facilities on or before the date of this Indenture.
PART XXVI
DEFAULT UNDER THIS INDENTURE
99. Notwithstanding
anything hereinbefore contained, if any one or more of the following events
occurs, namely:
(1) If any of the
Producers makes default in the due payment of any monies payable under this
Indenture to the State or to anyone on its behalf or to any agency or
instrumentality of the Crown and any such default remains unremedied for a
period exceeding thirty days after notice specifying the default is given to
the Producers and to all lenders of money to the Producers or any of them who
have been notified by the Producers or any of them to the State in writing
(such lenders, whether one or more, being hereinafter in this clause referred
to as "the lenders") by the State (or if the alleged default is contested by
any of the Producers and promptly submitted to arbitration or to the Court,
then within thirty days after the arbitration award or final Court order
(taking account of any appeals) is made where the question is decided against
any of the Producers); or
(2) If any of the
Producers makes default in the due performance of any of its material
covenants or obligations under this Indenture (not being a covenant or
obligation of the kind referred to in subclause (1) of this clause) and if the
relevant Producer fails to remedy or to commence and continue in good faith to
remedy that default within a reasonable time after notice specifying the
default is given to the Producers and to the lenders by the State (or if the
alleged default is contested by any of the Producers and promptly submitted to
arbitration or to the Court, then within the time given by the arbitration
award or final Court order (taking account of appeals) where the question is
decided against any of the Producers);
then and in any such events the Minister, after consultation with the
Producers (and provided the Producers not in default have agreed with the
State to assume all of the obligations, including without limitation,
obligations due and unsatisfied in respect of any antecedent breach of the
Producer or Producers in default), may determine this Indenture in respect
only of the Producer or Producers in default.
The rights and obligations of that defaulting Producer or of those defaulting
Producers under this Indenture vis a vis the State and the Minister shall
thereupon cease and shall ipso facto be assumed by and become the rights and
obligations of the Producers not in default but in all other respects the
rights and obligations of the Producers not in default under this Indenture
shall be unaffected by such determination.
If the Producers not in default do not agree with the State to assume the
obligations of the Producer or Producers in default as aforesaid, or if all of
the Producers are in default under this Indenture then the State may cancel
this Indenture.
Any determination or cancellation of this Indenture shall be by written notice
to the Producers and to the lenders.
100. Upon the
cancellation of this Indenture under clause 99 hereof:
(1) The rights and
obligations of the Producers to, in or under this Indenture shall thereupon
cease and determine but without prejudice to the liability of a Producer in
respect of any antecedent breach or default by it under this Indenture; and
(2) Each Producer
shall forthwith pay to the State all monies which then shall have become
payable or accrued due by it
and the rights of the Minister shall, subject to sub-clauses (1) and (2) of
this clause, constitute the exclusive remedy of the State and the Minister and
of any instrumentality of the State and of any other Minister against the
Producers not in default and each of them in respect of the said cancellation.
PART XXVII
SUPPORT AND SPONSORSHIP OF THE STATE
101. The State will
give full support and sponsorship and assistance to all acts, matters or
things contemplated by or the subject of this Indenture and will not do or
omit to do or cause or permit anything to be done or omitted to be done which
would or might tend to be inconsistent with the objects, intent and purpose of
this Indenture nor prohibit without just cause nor unreasonably interfere with
the due and proper performance of obligations or the exercise of rights by the
Producers under or in relation to activities contemplated by this Indenture or
the PASA and Producers (Right of Way) Agreement or Pipeline Licence No. 2 or
any other agreement contemplated herein or therein or established thereby.
102. In the event that
the State or the Minister makes default in the due performance or observance
of any of the covenants or obligations to the Producers under this Indenture
and if the State fails to remedy that default within thirty days after notice
specifying the default is given to it by the Producers (or if the alleged
default is contested by the State or the Minister and promptly submitted to
arbitration, then within thirty days after the arbitration award where the
question is decided against the State or the Minister the arbitrator finding
that there was a bona fide dispute and that the State or the Minister had not
been dilatory in pursuing the arbitration) then the security deposits referred
to in Schedule 4 and Part XV hereof shall be refunded forthwith to the
Producers and the additional rates referred to in clause 43 of this Indenture
and the tariff referred to in clause 49 of this Indenture shall cease
forthwith, but without prejudice to all other rights and remedies which the
Producers or any of them may have against the State.
PART XXVIII
FORCE MAJEURE
103. Subject as
hereinafter provided, the time for the performance of any obligation under or
arising out of this Indenture except an obligation to pay money, which
performance is delayed by circumstances beyond the reasonable control of the
party to this Indenture responsible for the performance of such obligation,
shall be extended by the period of the delay, but no longer than the
continuance thereof, and no party to this Indenture shall be liable in damages
or otherwise to any other party to this Indenture nor shall any action, claim
or demand be taken or made against that party to this Indenture by reason
solely of such delay in the performance of such obligation in circumstances
beyond the reasonable control of that party.
104. The party to this
Indenture responsible for the performance of any such obligation shall use all
reasonable diligence to remove the circumstances beyond the reasonable control
of that party to this Indenture as quickly as possible after notice of the
same shall have come to its or his attention save and except that the
settlement of any strike, lockout and other industrial dispute shall be
entirely within the discretion of any party directly concerned and nothing
herein shall require the settlement thereof by acceding to the demands of the
opposing party or parties where such course is inadvisable in the discretion
of the party concerned.
105. Each party to
this Indenture shall keep the others of them promptly informed of any delay in
the performance of any obligation on its part under or arising out of this
Indenture where such delay is caused by circumstances beyond the reasonable
control of such party, of the likely duration of such delay as a consequence
thereof and of the cessation of such circumstances.
106. In the clauses
numbered 103, 104 and 105 of this Indenture the expression "circumstances
beyond the reasonable control" shall include, without limitation, act of God,
act of war whether declared or undeclared, earthquake, explosion, act of
public enemy, flood, washaway, strike, blockade, lockout, stoppage, ban,
restraint of labour whether partial or entire or other industrial disturbance,
interruption of supply, unavailability or delay of any transport, machinery,
equipment, fuel or water, failure of petroleum reserves, breakdown, fire,
riot, civil commotion or insurrection, sabotage, landslide, cyclone, power
shortage, epidemic, quarantine, expropriation, restraint, prohibition,
intervention, requisition, requirement, direction or embargo by legislation,
regulation, decree or other legally enforcible order of any Government or
Governmental or other competent authority (including any Court of competent
jurisdiction or other similar circumstances) or inability or delay in
obtaining Governmental approval, permit, licence or allocation or any other
cause whether of a kind specifically enumerated above or otherwise which is
not reasonably within the control or the party to this Indenture carrying out
or obligated to carry out any obligation under this Indenture, providing that
neither the State nor the Minister shall be at liberty to rely upon any action
of the Government of the State or of the Minister or any other Minister of the
Crown in right of the State or any local government or other
instrumentality of the Crown in right of the State or other competent
authority of the State under its control as constituting "circumstances beyond
the reasonable control".
PART XXIX
SCHEDULES
107. Each of the
Schedules 1, 2, 3, 4 and 5 to this Indenture shall be and be deemed to form
part of this Indenture as if contained herein and shall have and take effect
according to the terms thereof.
PART XXX
AMENDMENTS TO THE COOPER BASIN INDENTURE
108. The parties to
this Indenture being also the parties to (or the successors to or assignees of
those parties) an Indenture dated the 16th day of October, 1975, being the
Schedule to the Cooper Basin (Ratification) Act, 1975 (hereinafter
referred to as the "Cooper Basin Indenture") hereby agree to the amendments to
the Cooper Basin Indenture set out in Schedule 5 to this Indenture.
PART XXXI
LAW APPLICABLE
109. This Indenture
shall be governed by and construed in accordance with the law for the time
being of the State and the parties to this Indenture consent and submit to the
jurisdiction of the Courts of the State and to all Courts having jurisdiction
and being competent to hear appeals therefrom.
PART XXXII
NOTICES
110. Any notice,
demand, consent or other communication requiring to be given, delivered or
made under or pursuant to this Indenture shall be deemed to have been duly
given, delivered or made when delivered in writing or sent by post or telex to
the party to whom such notice or demand or consent or other communication is
required or permitted to be given, delivered or made under this Indenture at
the following addresses:
|
The Premier, |
Telex: AA82827 |
|
The Minister of Mines and Energy, |
Telex: AA82827 |
|
Managing Director, |
Telex: AA82716 |
|
Managing Director, |
Telex: AA82215 |
|
General Manager, |
Telex: AA88900 |
|
General Manager, |
Telex: AA26518 |
|
Executive Director, |
Telex: AA92901 |
|
Executive Director, |
Telex: AA92901 |
|
Managing Director, |
Telex: AA31955 |
|
General Manager, |
Telex: AA31595 |
|
Managing Director, |
Telex: AA21760 |
|
General Manager, |
Telex: AA40985 |
|
General Manager, |
Telex: AA26518 |
or at such other addresses as may from time to time be notified by any party
to the others for the purpose of this clause 110.
111. A notice given by
telex shall be deemed to be a notice in writing for the purpose of this
Indenture and shall be deemed to be received upon receipt by the sender of the
answer-back code of the recipient at the conclusion of the telex provided
transmission is completed during normal business hours on a business day in
the place of the addressee and if it is not so completed then upon the
commencement of normal business hours on the next business day in the place of
the addressee after transmission is completed.
Any notice, demand, consent or other communication if sent by post shall be
sent by registered or certified mail and shall not be duly given until
actually received at the place of the addressee.
112. Any notice,
demand, consent or other communication (other than the communication to be
given or made by telex) requiring to be given or made pursuant to this
Indenture shall be sufficient, if:
(1) In the case of the
State it shall be under the hand of the Premier of the State;
(2) In the case of the
Minister it shall be under the hand of the Minister;
and
(3) In the case of a
Producer or assignee, transferee, sublessee, trustee, nominee or like person,
it shall be under the hand of any Director or Managing Director or General
Manager or Secretary or President or Vice-President or any person for the time
being acting in one of those offices.
SCHEDULE 1
LIQUIDS PIPELINE ROUTE AND PIPELINE LAND
SCHEDULE 2
PROPOSED DEVELOPMENT SITE
SCHEDULE 3
SERVICES CORRIDOR
SCHEDULE 4
SECURITY DEPOSIT
1. The Producers shall
deposit with the State as and when required by the State a sum equal to the
capital cost including interest incurred or to be incurred by the State as
notified in writing by the State to the Producers in the provision of water in
accordance with Part X of this Indenture and the roads within the Road Reserve
in accordance with Part XI of this Indenture. Such deposit shall secure the
due observance by the Producers of the terms respectively of Parts X and XI of
this Indenture on their part to be observed. To the extent of any shortfall in
payment of amounts owing pursuant to Parts X and XI or to any agreements
referred to therein in any year the Producers shall to that extent forfeit the
moneys which would otherwise have been payable to the Producers pursuant to
this Schedule.
2. The aforesaid
deposit together with interest at a rate of 18 per cent per annum shall,
subject to the foregoing provision of this Schedule, be repaid to the
Producers annually on a credit foncier system in ten equal instalments in a
manner to be agreed between the parties to this Indenture.
SCHEDULE 5
AMENDMENTS TO THE COOPER BASIN INDENTURE
Clause 1(7) (c) :
Add after "agreements" the words "or other disposal arrangements" and after
"Substances" add "or from petroleum recovered from any area comprised in a
Petroleum Production Licence granted to the Producers within the Subject Area
and areas referred to in clause 6(10) of this Indenture".
Add at end of Clause 1(7) "copies of which shall be provided in confidence to
the Minister".
Clause 1(15):
Add after clause 1(14):
"(15) "Joint Operating
Agreement" means any agreement heretofore or hereafter entered into by or
including the Producers or some of them and approved by the Minister governing
exploration for and production of petroleum and includes any agreement
providing for the installation and as applicable sharing of use of facilities
for the handling of petroleum."
Clause 4:
Amend clause 4(1) after the words "Appendix 'A'" by inserting the words "and
delineated in Appendix 'C' to the extent not delineated in Appendix 'A'";
Insert new Appendix "C" (as set out in page 50 of this Indenture);
Amend clause 4(2) by deleting the words "being Unit Facilities" and adding
after the words "Unit Agreement" the words "or other agreement pursuant to
which any of the foregoing may be owned from time to time".
Clause 6:
Clause 6(1), after "Unit Agreement", where first appearing, insert the words
"or the relevant Joint Operating Agreement";
Clause 6(1), after the word "Minister)" insert "or any Joint Operating
Agreement in so far as it applies to the Subject Area.";
Clause 6(4) (b) , after the word "Minister)" on the last line insert "or any
Joint Operating Agreement in so far as it applies to the Subject Area.";
Clause 6(7), after "Unit Agreement" insert the words "or any Joint Operating
Agreement or other applicable agreement" and delete the words "within the
Subject Area";
Insert after clause 6(9), the words: "(10) The clauses of this Indenture, save
and except clauses 6(1) and 6(4) hereof, shall apply to any Petroleum
Production Licences granted in respect or for the purposes of the production
of petroleum from the following areas:
Area 1
Commencing at a point being the intersection of latitude 27°00′S
and longitude 140°00′E, thence east to longitude
141°00′E, south to latitude 27°15′S, west to longitude
140°55′E, south to latitude 27°20′S, west to longitude
140°50′E, south to latitude 27°25′S, west to longitude
140°35′E, south to latitude 27°30′S, west to longitude
140°25′E, south to latitude 27°32′S, west to longitude
140°23′E, south to latitude 27°33′S, west to longitude
140°21′E, south to latitude 27°35′S, west to longitude
140°18′E, south to latitude 27°37′S, west to longitude
140°16′E, south to latitude 27°38′S, west to longitude
140°15′E, north to latitude 27°27′S, west to longitude
140°00′E, north to the point of commencement.
Area 2
Commencing at a point being the intersection of latitude 27°37′S
and longitude 139°38′E, thence east to longitude
139°53′E, south to latitude 27°45′S, east to longitude
140°00′E, south to latitude 27°56′S, west to longitude
139°59′E, south to latitude 27°57′S, west to longitude
139°58′E, south to latitude 27°59′S, west to longitude
139°57′E, south to latitude 28°00′S, west to longitude
139°56′E, south to latitude 28°02′S, west to longitude
139°55′E, south to latitude 28°06′S, east to longitude
140°00′E, south to latitude 28°18′S west to longitude
139°56′E, south to latitude 28°19′S, west to longitude
139°52′E, south to latitude 28°23′S, east to longitude
139°53′E, south to latitude 28°24′S, east to longitude
139°55′E, south to latitude 28°25′S, east to longitude
140°15′E, south to latitude 28°35′S, west to longitude
139°38′E, north to the point of commencement.
being the areas marked '1' and '2' respectively on the plan annexed hereto as
Appendix 'D'".
Insert new Appendix "D" (as set out on page 51 of this Indenture).
Clause 7(2):
After the words "Unit Agreement" insert "or any Joint Operating Agreement".
Clause 11:
After the words "Unit Agreement" (when appearing) insert the words "or any
Joint Operating Agreement";
After the words "the Producers" (when appearing) insert "or any of them".
Clause 12:
Substitute for the words "Unitized Substances" when appearing on each occasion
the word "petroleum";
After "Unit Agreement" add the words "or any Joint Operating Agreement" when
appearing in sub-clauses (2) (a) , (5) and (7);
After the words "Unit Agreement" in sub-clause (2) (c) add, the words "or
Joint Operating Agreement upstream of the inlet of the liquids pipeline at
Moomba."
After the last word in sub-clause (2) (a) add "The costs and expenses shall
include but not be limited to all licence fees payable under any pipeline
licence, all wharfage dues and the Commonwealth crude oil levy payable under
the Excise Act, 1901 and the Excise Tariff Act, 1921 of the
Commonwealth. Where costs and expenses are incurred by way of payments to a
party not at arms-length to the Producers, such costs for this purpose shall
not exceed the actual costs of that party".
Add a new sub-clause (1A) after sub-clause (1)
"(1A) —
(i)
Except as provided otherwise in this clause, during the
period from the 1st January, 1988 up to and including 31st December, 1992,
royalty shall be calculated and paid in respect of all liquid petroleum (which
expression for this purpose shall include crude oil, condensate, propane,
butane and ethane conveyed through the liquids pipeline the subject of
Pipeline Licence No. 2) sold in accordance with the Sales Contracts at
whichever is the lesser of the rate prescribed from time to time under the
Petroleum Act, 1940-1981 or the rate of ten per centum of the value at
the wellhead.
(ii)
The State may from time to time require that discussions
be held with the producers with respect to the royalty rate and base to apply
on and after the 1st January, 1988 providing there has been a significant or
substantial increase in royalty on liquid petroleum or pipeline licence fees
or other similar charges in other States since the 1st January, 1982. In
conducting such discussions, the parties will exchange information and consult
with a view to determining whether, and, if so, what change in royalty
arrangements would be appropriate having regard to the royalty position in
other States. During those discussions the following factors will be taken
into account and evaluated:
(a) The actual levels
of royalty rates in other States;
(b) The basis of
calculating royalty in other States;
(c) The basis of
calculating well-head value in other States and its comparison with the basis
under this Indenture;
(d) The level of
pipeline licence fees and similar charges in other States;
(e) The extent to
which royalties in other States apply to well established projects which have
completed their financing period;
(f) The extent to
which other States originally provided infrastructure support for comparable
projects;
(g) The effect which
royalty payments will have generally in encouraging State development and
petroleum exploration in South Australia; and
(h) The extent to
which the Cooper Basin liquids project has contributed and will continue to
contribute to the development of South Australia.
(iii)
Following the discussions referred to in sub-clause (ii)
above, the parties will attempt to reach agreement on the appropriate basis
and level of royalty.
Failing agreement, the State shall have the absolute discretion, having regard
to all of the matters outlined in sub-clause (ii), above, to increase royalty
as follows:
(a) Royalty on liquid
petroleum shall not exceed the rate prescribed under the Petroleum
Act 1940-1981.
(b) Subject to the
preceding sub-clause (iii) (a) the State may increase royalty to a maximum
level of 12.5 per centum of the value at the wellhead of all such liquid
petroleum from 1st January, 1988.
In the event that the royalty rate on liquid petroleum differs from the
royalty rate on gas, the State and the Producers shall agree on the basis of
allocation of capital and operating costs between liquid petroleum and gas and
if there is no agreement, the matter shall be determined by arbitration."
In sub-clause (2) (a) after the words "Clause 12(2)" insert the words "and the
sum provided in sub-clause (d) of this Clause 12(2)".
In sub-clause (2) (c) when first appearing delete the word "Unit".
Insert a new sub-clause (2) (d) after sub-clause (2) (c) as follows:
" (d) A sum determined
under a credit foncier system over a period of thirty half yearly instalments
at a rate of interest of eighteen per centum per annum on the capital cost of
all facilities (including the liquids pipeline) owned by the Producers or any
of them between the point of sale of any petroleum and the inlet of the
liquids pipeline at Moomba installed, constructed or otherwise acquired from
time to time by the Producers or some one or more of them. Notwithstanding the
expiry of fifteen years, the deduction of such sum shall be a continuing
deduction and shall cease only upon the disposal, destruction or cessation of
use by the Producers of any item of such facilities to the extent that the
deduction is applicable to such item".
Insert a new sub-clause (10) after sub-clause (9):
"(10) Notwithstanding
anything to the contrary contained herein no royalty, tax, impost or levy of
whatsoever nature or kind other than bona fide charges for services provided
by the State shall be payable by the Producers upon any petroleum produced
from a State other than South Australia and upon which royalty has been paid
in another State".
Clause 14(2):
After the words "Unit Agreement" add the words "and as applicable the
provisions of any relevant Joint Operating Agreement".
Clause 20:
After the words "Indenture shall", when appearing in the last line add the
words "as between the holders thereof".
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IN WITNESS WHEREOF the parties hereto sign seal and deliver the foregoing
presents and have hereunto set their respective hands and seals on the day and
year first above written. | ||
|
SIGNED SEALED AND DELIVERED by THE HONOURABLE DAVID OLIVER TONKIN Premier of
the State of South Australia for and on behalf of the said State and in the
presence of KENT PATRICK |
} |
DAVID TONKIN |
|
THE COMMON SEAL of THE MINISTER OF MINES AND ENERGY was hereunto affixed by
the authority of the Minister and in the presence of KENT PATRICK |
} |
E.R. GOLDSWORTHY |
|
The COMMON SEAL of SANTOS LIMITED was hereunto affixed in the presence of |
} |
A. CARMICHAEL |
|
The COMMON SEAL of DELHI PETROLEUM PTY LIMITED was hereunto affixed in the
presence of |
} |
J. McARDLE |
|
The COMMON SEAL of SOUTH AUSTRALIAN OIL & GAS CORPORATION PTY. LTD. was
hereunto affixed in the presence of |
} |
J.P. BURNSIDE |
|
EXECUTED on behalf of BASIN OIL NO LIABILITY by being Signed Sealed and
Delivered by its Attorney under Power in the presence of: |
} |
PETER LANE |
|
EXECUTED on behalf of BRIDGE OIL LIMITED by being Signed Sealed and Delivered
by its Attorney under Power in the presence of: |
} |
A.G. HARRIS |
|
EXECUTED on behalf of BRIDGE OIL DEVELOPMENTS PTY. LIMITED by being Signed
Sealed and Delivered by its Attorney under Power in the presence of: |
} |
A.G. HARRIS |
|
EXECUTED on behalf of TOTAL EXPLORATION AUSTRALIA PTY. LIMITED by being Signed
Sealed and Delivered by its Attorney under Power in the presence of: |
} |
H.W.G. CAVILL |
|
EXECUTED on behalf of REEF OIL NO LIABILITY by being Signed Sealed and
Delivered by its Attorney Under Power in the presence of: |
} |
PETER LANE |
|
EXECUTED on behalf of VAMGAS LIMITED by being Signed Sealed and Delivered by
its Attorney under Power in the presence of: |
} |
J.B. FITZGERALD |
|
EXECUTED on behalf of ALLIANCE PETROLEUM AUSTRALIA NO LIABILITY by being
Signed Sealed and Delivered by its Attorney under Power in the presence of: |
} |
E.H.C. GARLAND |
|
EXECUTED on behalf of CRUSADER RESOURCES N.L. by being Signed Sealed and
Delivered by its Attorney under Power in the presence of: |
} |
M. PYECROFT |