Victorian Current Acts Victorian Current ActsSchedule
AGREEMENT
This Agreement is made the Second day of September One thousand nine hundred and eighty between the Honorable Rupert James Hamer in his capacity as the Premier for the time being of the State of Victoria for and on behalf of the said State of the one part and Alcoa of Australia Limited a company incorporated in the State the registered office of which is situated at 535 Bourke Street, Melbourne in the State of the other part—
Recitals
Whereas—
I. The Company is desirous of establishing an aluminium smelter at Portland in the State.
II. The parties acknowledge that this Agreement is predicated on the basis of the development by stages of a smelter capable of production of 530 000 tonnes of aluminium per annum and that the Environment Effects Statement exhibited during the year 1980 pursuant to the Environment Effects Act 1978 involved an assessment of the smelter to that production capacity.
Sch. Recital III amended by No. 10115/1984 s. 6(2)(Sch. item 3).
III. The State for the purpose of encouraging the economic development of the State and the promotion and establishment of new industries desires to assist the Company in establishing the smelter.
IV. Before the Company incurs the expenses involved in the establishment of the smelter it requires certain rights and powers incidental to the establishment and carrying on of the smelter being assured to it.
V. In order to effect the establishment and carrying on of the smelter the parties hereto are desirous of entering into the Agreement following so that upon its ratification validation and approval by the Parliament of the State the Agreement will have full force and effect of law and will become binding on the State and the Company in manner hereinafter appearing.
VI. The parties to the Agreement acknowledge that the lands described in the Schedule are to be used for the purposes set out in the Agreement.
Now it is hereby agreed as follows:
PART I
PRELIMINARY
( a ) In this Agreement unless inconsistent with the context or subject-matter—
"The Act" means the Act of Parliament of Victoria to be passed to ratify validate approve give the force of law and otherwise give effect to this Agreement.
"Alumina" means the refined product of bauxite or aluminium oxide.
"Aluminium" means the reduced metallic product of alumina or other aluminium bearing substances.
"Apparatus and works" for the purposes of clause 5 ( d ) has the same meaning as in the Pipelines Act 1967 (as amended).
"Approve" "approval" "notify" "request" or "require" means approve approval, notify, request, or require in writing as the case may be.
Sch. Pt 1
cl. 1(a) def. of Associated company amended by No. 10115/1984
s. 6(2)(Sch. item 4(1)
(a)–(c)).
"Associated company" means—
(i) any company, which establishes manufacturing operations on or adjacent to the smelter site and whose business is or operations are substantially dependent on the products or services of the Company and in which the Company holds directly or indirectly not less than 20 per centum of the issued capital and of which the Company gives notice in writing to the State;
(ii) any company of which the Company is a subsidiary within the meaning of the Companies (Victoria) Code ;
(iii) any company which is a Subsidiary company of the Company; or
(iv) any person or company with which the Company carries on any business relating to the smelter in partnership or in joint venture.
"Berth" means the berth or berths to be constructed and set aside for the exclusive use of the Company for unloading bulk cargo in Portland harbor and includes that area of the land adjoining the berth to the existing breakwater and equipment ancillary thereto.
Sch. Pt 1
cl. 1(a) def. of Bulk cargo amended by No. 10115/1984
s. 6(2)(Sch. item 4(1)(d)).
"Bulk cargo" means any quantity of alumina or other bulk materials used in an aluminium industry including alumina and any other materials for use by the Company or by any Subsidiary Company or by any Associated company in connexion with its operations in that industry which is unloaded in bulk from any vessel by means of a pipeline conveyor or grab or other usual means of handling bulk cargo.
"Commencement date" means the date on which this Agreement comes into operation being the day on which the Agreement is executed by the parties hereto.
Sch. Pt 1
cl. 1(a) def. of Company substituted by No. 10115/1984
s. 6(2)(Sch. item 4(1)(e)).
"Company" means Alcoa of Australia Limited, its successors and permitted assigns and any one or more Associated companies and any partnership comprising Alcoa of Australia Limited and any one or more Associated companies and any joint venture comprising Alcoa of Australia Limited and any one or more Associated companies
"Company land" means all that land described in the second annexure hereto and any other land which the Company purchases hereafter for use including buffer purposes for or in conjunction with the smelter.
Sch. Pt 1
cl. 1(a) def. of Conveyor substituted by No. 10115/1984
s. 6(2)(Sch. item 4(1)(f)).
"Conveyor" means the mechanical structure and machinery constructed for the purpose of conveying or carrying materials to the smelter site over, on or under the land shown as the route marked on the Drawings Nos. 4496 and 4510 drawn for the Portland Harbor Trust Commissioners on 28 February 1980 and Drawings Nos. B1-002920-PV, B1-002921-PV and B1-002922-PV drawn for Alcoa of Australia Limited on 28 June 1982 or on such other drawings as may be agreed between the Port of Portland Authority and the Company in substitution therefor.
"Governor in Council" has the same meaning as in the Acts Interpretation Act 1958 (as amended).
"Hydrocarbon" has the same meaning as in the Pipelines Act 1967 (as amended).
"Month" means calendar month.
"Person" or "persons" includes bodies corporate.
"Pipeline" has the same meaning as in the Pipelines Act 1967 (as amended).
Sch. Pt 1
cl. 1(a) def. of Portland Harbor amended by No. 10115/1984
s. 6(2)(Sch. item 4(1)(g)).
"Portland Harbor" means the bed, soil and shores of the waters and the lands vested in the Port of Portland Authority.
Sch. Pt 1
cl. 1(a) def. of Portland Harbor Trust Commission-ers substituted as
Port of Portland Authority by No. 10115/1984 s. 6(2)(Sch. item 4(1)(h)).
"Port of Portland Authority" means the Authority under the Port of Portland Authority Act 1958 (as amended).
"Potline" means a series of electrolytic cells connected electrically for the purpose of smelting alumina or other aluminium bearing mineral to aluminium.
"Production date" means the date upon which the Company after the erection and establishment of the smelter commences continuous production in commercial quantities of aluminium therefrom being a date to be notified to the State by the Company within one month of the commencement.
"Public statutory corporation" means any body corporate established by or pursuant to any Act for any public purpose and, without affecting the generality of the foregoing, includes a municipality.
"Smelter" means the electrolytic reduction plant for the conversion of alumina or other aluminium bearing mineral to aluminium and such other plant ancillary to the electrolytic reduction and metal casting to be erected on the smelter site and includes all expansion of and additions thereto from time to time.
Sch. Pt 1
cl. 1(a) def. of Smelter site amended by No. 10115/1984
s. 6(2)(Sch. item 4(1)(i)).
"Smelter site" means such area of land in the Parish of Portland being four hundred and sixty hectares more or less within the boundaries described in the first annexure hereto and any other company land which the Company in its sole discretion uses for or in conjunction with the smelter.
"The State" means the State of Victoria.
Sch. Pt 1
cl. 1(a) def. of Subsidiary company amended by No. 10115/1984
s. 6(2)(Sch. item 4(1)(j)).
"Subsidiary company" means a subsidiary within the meaning of the Companies (Victoria) Code .
( b ) Where in this Agreement the context requires or admits the plural number includes the singular and vice versa .
( c ) The headings, and side-notes shall not affect the interpretation of the Agreement.
Sch. Pt 1
cl. 1(d) inserted by No. 10115/1984 s. 6(2)(Sch. item 4(2)).
( d ) In this Agreement, a reference to a company includes a reference to a corporation wheresoever incorporated or domiciled.
Divisions A, B and C of Part II of this Agreement shall be of no force or effect neither shall either party have any claim against the other in respect of any matter arising out of or in connexion with these Divisions of Part II until—
( a ) The agreement has been ratified validated approved and given the force of law by an Act of Parliament of Victoria; and
( b ) Clause 3 is complied with in full.
( a ) Notwithstanding that this Agreement comes into operation on the Commencement date Division A, B and C of Part II of this Agreement shall not come into operation until the first day of the month following the date upon which the last of the following events occurs—
(i) The coming into operation of the Act referred to in clause 2 hereof;
(ii) The construction and operation of the Smelter and all associated works is a permissible land use under the law relating to town and country planning;
(iii) The proposed site of the aerodrome is zoned to permit the construction of an aerodrome and all associated works under the law relating to town and country planning;
(iv) Agreements have been executed and come into operation between the Company and the relevant authorities in relation to—
( aa ) municipal rates and charges;
( bb ) water rates and charges;
( cc ) sewerage rates and charges;
( dd ) wharfage rates and charges;
(v) Agreements have been executed and come into force between the Company and the State Electricity Commission of Victoria in relation to the supply of electricity and the tariffs and charges for the supply of such electricity to the Company at the Smelter site;
(vi) An order by the Governor in Council authorizing the construction by the State Electricity Commission of Victoria of a 500kv powerline from Sydenham to the Smelter site at Portland has been published in the Government Gazette .
( b ) A certificate of the responsible Minister as to the date upon which the events referred to in paragraphs (i), (ii) and (iii) of sub-clause ( a ) have occurred and a certificate by the secretary of the Company that the events referred to in paragraphs (iv) and (v) of sub-clause ( a ) have occurred shall be conclusive and binding upon the parties.
( c ) Where any of the events mentioned in sub-clause ( a ) other than the event mentioned in sub-paragraph (iii) does not occur prior to the 31st day of December One thousand nine hundred and eighty or where the event mentioned in sub-paragraph (iii) does not occur prior to the 1st day of September One thousand nine hundred and eighty then either party may determine this Agreement at any time thereafter before all of such events shall have occurred by giving to the other notice in writing to that effect and thereupon this Agreement shall be at an end and neither party shall have any claim against the other in respect of any matter arising out of or in connection herewith.
PART II
DIVISION A—OBLIGATIONS OF THE COMPANY
Subject to the performance by the State from time to time of the obligations imposed on it by this Agreement the Company shall—
( a ) after the Commencement date and without undue delay commence and complete construction of a Smelter with an initial production capacity of not less than 120 000 tonnes of aluminium per annum and thereafter maintain operate and use the Smelter and all additions and alterations thereto during the operational life of the Smelter;
Sch. Pt 2 Div. A cl. 4(b) amended by No. 10115/1984 s. 6(2)(Sch. item 5(a)).
( b ) use its best endeavours to commence continuous production in commercial quantities of aluminium by the 1st day of November one thousand nine hundred and eighty-six;
Sch. Pt 2 Div. A cl. 4(c) substituted by No. 10115/1984 s. 6(2)(Sch. item 5(b)).
( c ) endeavour to procure the provision of houses for the employees required to operate the smelter.
DIVISION B—OBLIGATIONS OF THE STATE
The State shall—
( a ) facilitate and assist in deciding with the relevant authorities as to the date of closure of the Portland Aerodrome existing at the Commencement date and as to a site for a new aerodrome in lieu thereof by the 1st day of September One thousand nine hundred and eighty.
Sch. Pt 2 Div. B cl. 5(b) amended by No. 10115/1984 s. 6(2)(Sch. item 6(a)).
( b ) facilitate the granting to the Company of an industrial development lease pursuant to Section 137A of the Land Act 1958 (as amended) of such Crown land (including any land surrendered to the Crown by the Port of Portland Authority) in the Parish of Portland within the boundaries described in the First Annexure hereto as the Company requires to lease under an industrial development lease for the purposes of the Smelter and ancillary works including buffer purposes and further when the Company has commenced the development of the said leased land pursuant to the aforementioned industrial development lease for the purposes of the Smelter or associated works then the State shall sell at a fair and reasonable valuation to be determined by the Governor in Council the said leased land to the Company in fee simple;
Sch. Pt 2 Div. B cl. 5(c) amended by No. 10115/1984 s. 6(2)(Sch. item 6(a)(b)).
( c ) sell to the Company in fee simple at a fair and reasonable valuation to be determined by the Valuer-General such land in the Parish of Portland within the boundaries described in the First Annexure hereto as the Company requires for the purposes of the Smelter and ancillary works including buffer purposes and further that should such land be vested in the Port of Portland Authority at or before the Commencement date then the State shall ensure that the Authority will divest themselves of such land by surrendering all such land to the Crown pursuant to section 19 (4) of the Port of Portland Authority Act 1958 (as amended) or pursuant to any corresponding statutory enactment and that such surrender of land shall enable the Governor in Council to sell the land to the Company subject to such covenants, conditions, exceptions and reservations as he thinks fit;
( d ) in accordance with the Pipelines Act 1967 (as amended) ensure that any permits and licenses are granted as soon as the Company or any Associated company and any company that enters into a joint venture agreement with the Company or any Associated company, have complied with the requirements of the Pipelines Act 1967 (as amended) for the purposes of—
(i) the conveying and using of hydrocarbon substances including the construction of pipelines; and
(ii) constructing, operating and maintaining apparatus and works in connexion with the conveying and using of hydrocarbon substances—
in connexion with the purposes and operating of the Smelter;
( e ) upon the Company becoming registered as the proprietor of the whole or part of the Company land including the land referred to in sub-clauses 5 ( b ) and 5 ( c ) and upon application by the Company pursuant to the provisions of the Local Government Act 1958 (as amended) or the Land Act 1958 (as amended) shall cause such roads as adjoin the said land and are the subject of any such application to be closed and all rights thereon extinguished and shall sell the same to the Company at fair and reasonable valuation to be determined by the Valuer-General for an unencumbered estate in fee simple;
( f ) take all necessary steps to extinguish all drainage reserves on the land more particularly described in Certificates of Title Volume 8895 Folio 969 and Volume 8924 Folio 518;
Sch. Pt 2 Div. B cl. 5(g) amended by No. 10115/1984 s. 6(2)(Sch. item 6(c)).
( g ) ensure the grant on reasonable terms by all relevant authorities in favour of the Company of all necessary licences and permits to enable the Company to erect maintain and use at all times the Conveyor to convey alumina and other bulk cargo from the Berth to the Smelter site;
Sch. Pt 2 Div. B cl. 5(h) amended by No. 10115/1984 s. 6(2)(Sch. item 6(a)).
( h ) assist the Port of Portland Authority in arranging for the construction of the Berth in the existing Portland Harbor for exclusive use by the Company for the handling of bulk cargo;
( i ) ensure that adequate navigational aids and other normal harbor services are established and maintained in good order and condition for both day and night operation including without limiting the foregoing the provision of an adequate pilotage service at rates not exceeding those charged for such services to any vessels not associated with the Company;
Sch. Pt 2 Div. B cl. 5(j) substituted by No. 10115/1984 s. 6(2)(Sch. item 6(d)).
( j ) cause a licence to be granted on reasonable terms to the Company over the berth for the purpose of handling bulk cargo and cause the licence so granted to be maintained in full force and effect subject to compliance by the Company with its terms;
Sch. Pt 2 Div. B cl. 5(k) amended by No. 10115/1984 s. 6(2)(Sch. item 6(e)).
( k ) facilitate through the State Electricity Commission of Victoria the provision to the Company and to each of the Associated companies that are operating on the site at such a point or points within the site as may be agreed between the Commission and the Company and the Associated companies a supply of electricity up to 520 megawatts as may be required from time to time for construction operational and related purposes of the Company and the Associated companies at the time and under the terms and conditions as are agreed between the Commission and the Company and the Associated companies for a minimum of 30 years from the Production date.
Sch. Pt 2 Div. B cl. 5(l) amended by No. 10115/1984 s. 6(2)(Sch. item 6(f)).
( l ) facilitate the provision by the Portland Water Board and its successors to the Company at the Smelter site of an adequate supply of water for construction and operational purposes at rates to be agreed between the Portland Water Board and its successors and the Company which rates shall not adversely discriminate against the Company and further the Company land may be excluded from the area designated as an urban district pursuant to section 233 of the Water Act 1958 (as amended) so that the Governor in Council is specifically empowered to make an order pursuant to section 163 of the Water Act 1958 (as amended) to enable a special rate to be levied with respect to the Company land;
( m ) facilitate the granting of any licences and permits to allow the Company to sink bores on the Company land in accordance with the Groundwater Act 1969 (as amended);
( n ) permit the Company to carry out such works and construction to enable the storage of water and the erection of associated waterworks operations for the purposes of providing water to the Smelter and associated works;
Sch. Pt 2 Div. B cl. 5(o) amended by No. 10115/1984 s. 6(2)(Sch. item 6(g)).
( o ) ensure that the public roads leading from the Smelter site and the Company land to the main trunk roads at or through Portland are maintained in a condition adequate for the transport requirements of the Company during the construction and operation of the Smelter and there shall be no claim against the Company for direct contribution towards the cost of that maintenance;
( p ) endeavour to ensure that all relevant ministers and authorities will—
(i) grant and issue to the Company (and suppliers to or contractors with the Company and sub-contractors of such contractors) any licence if required, subject to usual licensing conditions including safety restrictions to transport by road goods and materials required for the construction repair operation or maintenance of the Smelter on the Smelter site as the Company in its sole discretion may require to transport;
(ii) ensure that the appropriate fee charged to the Company (and suppliers to or contractors with the Company and sub-contractors of such contractors) for any licences if required with respect to road transport will not be such as to adversely discriminate against the Company its said suppliers or contractors or sub-contractors of such contractors;
Sch. Pt 2 Div. B cl. 5(q) amended by No. 10115/1984 s. 6(2)(Sch. item 6(h)).
( q ) liaise with the Commonwealth Department of Aviation and support the issue if necessary of approvals or consents to the construction of an airstrip or helicopter pads for the exclusive use of the Company should the Company in its sole discretion require such facilities;
Sch. Pt 2 Div. B cl. 5(r) amended by No. 10115/1984 s. 6(2)(Sch. item 6(i)).
( r ) facilitate the adequate provision of sewerage works and facilities for the purposes of the Company and the Associated companies through the Portland Water Board and its successors the Portland Town Council and all other relevant public statutory corporations;
Sch. Pt 2 Div. B cl. 5(s) amended by No. 10115/1984 s. 6(2)(Sch. item 6(j)).
( s ) assist the Company and its employees in obtaining finance from the State financing bodies for or towards the construction, purchase or provision of housing of employés;
( t ) assist authorities responsible for the provision of infrastructure and services required in and around the town of Portland (including items such as education, sewerage and water facilities) as the town expands subsequent to the construction of the Smelter.
Sch. Pt 2 Div. B cl. 5(u) inserted by No. 10115/1984 s. 6(2)(Sch. item 6(k)).
( u ) not impose nor take nor (insofar as it is competent to do so) permit nor authorize any of its agencies or instrumentalities or any local or other authority or Minister of the crown or public statutory corporation of the State to take or cause to occur any action or combination of actions, including, without limitation, the imposition of any taxes, rates or charges of any nature whatsoever, which—
(i) has the effect of modifying or subtracting from the Company's or the smelter manager's rights or adding to any of their obligations or modifying or subtracting from the obligations or adding to the rights of the State or any participant in a joint venture related to the smelter in which the State has an interest, in each case under the Agreement or any other agreement relating to the smelter or any partnership or joint venture relating to the smelter;
(ii) is discriminatory to, or has a discriminatory effect on, or is directed at the smelter or the Company or any partnership or joint venture related to the smelter or any participant in such a partnership or joint venture; or
(iii) discriminates adversely between the Company and other industrial or commercial enterprises in the State or between Alcoa of Australia Limited and any Associated company in respect of the income, titles, property or other assets, products, materials or services used or produced by or through the operation of the smelter and the disposal of aluminium and waste products produced in the smelter or is discriminatory to the aluminium industry or is directed at the aluminium industry;
Sch. Pt 2 Div. B cl. 5(v) inserted by No. 10115/1984 s. 6(2)(Sch. item 6(k)).
( v ) not, without the consent of the Company, resume nor (in so far as it is competent to do so) suffer nor permit to be resumed, other than for the purpose of a 'public project' as defined in the Public Lands and Works Act 1964 (as amended), any of the works installations plant equipment or other property for the time being belonging to the Company and the subject of or used for the purpose of this Agreement where to do so would unduly prejudice or interfere with the Company's operations hereunder; and
Sch. Pt 2 Div. B cl. 5(w) inserted by No. 10115/1984 s. 6(2)(Sch. item 6(k)).
( w ) make such representations as may be necessary to the Commonwealth with respect to, and use its good offices in relation to, the remedy or amelioration of or removal by the Commonwealth of any adverse effect on the progress or cost of the construction and operation of the smelter or on the smelter, the Company, any partnership or joint venture or any participant in such partnership or joint venture, any smelter manager, this Agreement or any other agreement relating to the smelter resulting from Commonwealth Government policies including, without limiting the generality of the foregoing, the imposition of import duties, as soon as practicable after the occurrence of such effect.
DIVISION C—FINANCIAL
The State shall facilitate negotiations by the Company with—
Sch. Pt 2 Div. C cl. 6(a) amended by No. 10115/1984 s. 6(2)(Sch. item 7(a)).
( a ) the Port of Portland Authority in accordance with section 27A ( c ) and section 45(1) ( h ) of the Port of Portland Authority Act 1958 (as amended) an agreement with the Company to fix the maximum wharfage charges including escalation on both inward bulk cargo and outward cargo for the whole period of the Smelter operation from the Commencement date.
Sch. Pt 2 Div. C cl. 6(b) amended by No. 10115/1984 s. 6(2)(Sch. item 7(b)).
( b ) the Portland Water Board or its successors or the Portland Town Council for long term agreements with the Company with respect to the capital charges for the provision of sewerage facilities and for the disposal of trade waste throughout the operation of the Smelter from the date of the commencement of the construction of the Smelter and associated developments notwithstanding any provision in the Sewerage Districts Act 1958 (as amended) the Local Government Act 1958 (as amended) or any other statutory provision relating to charges or rates with respect to the provision of sewerage facilities;
( c ) the Portland Town Council for a long term agreement with the Company regarding the rating of the Company land under section 811BA of the Local Government Act 1958 (as amended) for a period of years from the Commencement date.
Sch. Pt 2 Div. C cl. 7 substituted by No. 10115/1984 s. 6(2)(Sch. item 8).
The State shall—
( a ) assist the Company and the Portland Town Council to reach agreement prior to the re-commencement of construction of the smelter to amend or replace the agreement dated 24 December 1980 (as amended by supplemental agreements dated 16 June 1981, 14 January 1982, 26 March 1982 and 18 June 1984) relating to municipal rating to—
(i) provide for any increase in the base level of rates to be limited to no more than the percentage increase applicable to other rate-payers in the town of Portland;
(ii) provide for the recognition of payments made by the Company prior to production date;
(iii) provide for the level of rates and other infrastructure payments payable to be reasonably determined having regard to relevant criteria including comparability with the level of rates and other infrastructure payments payable in relation to other aluminium Smelters in Australia;
(iv) provide for the adjustment of rates if the construction of the smelter is deferred or the smelter is not operational for any extended period; and
(v) provide for the construction village to be included in and assessed for rates in accordance with the agreements until the completion of construction of the second potline to the smelter;
( b ) assist the Company and the Portland Water Board to reach agreement to amend the agreement dated 26 March 1982 relating to water supply to—
(i) provide for the construction village to be included in and assessed for rates in accordance with the agreement until the completion of construction of the second potline of the smelter;
(ii) provide for the recognition of water rates paid since the deferment of the smelter project; and
(iii) amend the definitions in and terms of the agreement to reflect the current status of the smelter;
( c ) assist the Company and the Portland Water Board to reach agreement to amend the agreement dated 26 March 1982 relating to sewerage to—
(i) provide for the construction village to be included in and assessed for rates in accordance with the agreement until the completion of construction of the second potline of the smelter;
(ii) provide for the recognition of sewerage rates paid since the deferment of the smelter project; and
(iii) provide for a review of the charges to be paid for termination of the agreement if the Company installs its own sewerage treatment plant; and
(iv) amend the definitions in and terms of the agreement to reflect the current status of the smelter; and
( d ) assist the Company and the Port of Portland Authority to reach agreement to amend the agreement dated 9 February 1981 relating to Portland Harbor to—
(i) provide for the assignment or novation of the agreement by the Company to the Company and any persons entering into partnership or joint ventures with it;
(ii) provide for consultation with the Company prior to development works or proposals proceeding on the land described in the third annexure to this Agreement;
(iii) provide for the new Quarry Road to become a public road as soon as possible;
(iv) amend the definitions in and terms of the agreement to reflect the current status of the smelter; and
(v) clarify the clauses relating to the supply of electricity and the respective rights of the Company and the Port of Portland Authority with respect to the conveyor.
DIVISION D—GENERAL
Sch. Pt 2 Div. D cl. 8(a) amended by No. 10115/1984 s. 6(2)(Sch. item 9(1)).
( a ) This Agreement is made subject to any delay in the performance of any obligation or obligations under this Agreement which may be occasioned by or arise from any circumstances whatsoever beyond the power and control of the party responsible for the performances of such obligation, including but without limiting the generality of the foregoing delay caused by or arising from act of God, act of war, force majeure , act of public enemies, industrial disputes, lock-outs (except of the company's own employees), restraint of labour, or other similar acts, whether partial or general, shortage of essential materials from the usual source of supply, reasonable failure to secure or delays of contractors, riots, civil commotion, earthquake, flood, storm, tempest, washway, fire (unless caused by the fault of the party responsible for such performance), breakage in electricity wires to the smelter or berth and inability or delay in obtaining any Government or local authority approval, permit or licence and a failure by either party to perform its obligations for any such reason shall not be deemed a breach of this Agreement and such obligation shall be performed within a reasonable period following the cessation of the circumstances which so delayed it.
Sch. Pt 2 Div. D cl. 8(ab) inserted by No. 10115/1984 s. 6(2)(Sch. item 9(2)).
( ab ) The party whose performance of any obligation is delayed by a circumstance referred to in sub-clause ( a ) shall keep the other party or, where by virtue of the operation of clause 8A the parties are more than two, the other parties, promptly informed of each event alleged to constitute such circumstance, of the likely duration of such delay as a consequence thereof and of the cessation of such circumstance and shall use its best endeavours to minimize the effect of such circumstance as soon as practicable after the occurrence thereof, provided that a party shall not be required to settle any industrial dispute on terms which in its opinion are not satisfactory.
( b ) The Premier and the Company may from time to time enter into agreements or arrangements for better giving effect to the provisions of this Agreement.
( c ) If the Company—
(i) enters into liquidation (other than a voluntary liquidation for the purpose of reconstruction); or
(ii) delays the commencement of the construction of the Smelter beyond the period of two years from the Commencement date for any cause other than those specified in paragraph ( a ) of this clause; or
(iii) abandons or repudiates this Agreement—
the State may by notice in writing determine this Agreement but such determination shall not affect the enforcement of any right, obligation or liability theretofore acquired accrued or incurred.
( d ) Without affecting the liability of the parties to each other under this Agreement either party shall have the right from time to time to entrust to other persons the performance of such portion or portions of its obligations and operations authorized under this Agreement as it may consider expedient.
( e ) Except as provided under this clause the Company shall not assign or otherwise deal with this Agreement or any part of this Agreement—
Sch. Pt 2 Div. D cl. 8(e)(i) amended by No. 10115/1984 s. 6(2)(Sch. item 9(3)).
(i) the Company may assign the whole or any part of this Agreement to any Associated company or to a corporation which within the meaning of section 7 (5) of the Companies (Victoria) Code (as amended) is deemed to be related to the Company.
(ii) the Company may assign this Agreement or any part of this Agreement otherwise than is provided in sub-clause (i) with the consent in writing of the Premier which consent shall not be unreasonably withheld and subject to such reasonable conditions as the Premier thinks fit.
Sch. Pt 2 Div. D cl. 8(f) repealed by No. 10115/1984 s. 6(2)(Sch. item 9(4)).
* * * * *
( g ) Any notice consent or other writing authorized or required by this Agreement to be given or sent shall be deemed to have been duly given or sent by the State if signed by the Premier or other Minister of the Crown acting on his behalf and forwarded by prepaid post to the Company at its registered office in the State and by the Company if signed by a director or the secretary of the Company in the State, and forwarded by prepaid post to the Premier and any such notice consent or writing shall be deemed to have been duly given or sent on the day on which it would be delivered in the ordinary course of the post.
( h ) Notwithstanding any provision hereof the State may at the request of the Company from time to time extend any period or date referred to in this Agreement for such period or to such later date as the State and the Company agree and the extended period or later date when confirmed in writing shall be deemed for all purposes hereof substituted for the period or date so referred to herein.
Sch. Pt 2 Div. D cl. 8A inserted by No. 10115/1984 s. 6(2)(Sch. item 10).
(1) If Alcoa of Australia Limited enters into partnership or joint venture with any person for the purpose of carrying on either or both of the establishment and operation of the smelter then on and from the date upon which that partnership or joint venture as the case may be is established or upon any person becoming an additional party to such partnership or joint venture as the case may be and notice of the establishment of or addition to the partnership or joint venture as the case may be and the names of the partners or joint venturers or additional partners or joint venturers as the case may be have been given to the State that person or those persons shall become a party to this Agreement and shall assume severally from Alcoa of Australia Limited the obligations of the Company under this Agreement and shall be severally with Alcoa of Australia Limited entitled to the benefits to which the Company is entitled under this Agreement in each case in proportion and to the extent of that person's interest or those persons interests in the smelter from time to time as determined in accordance with the agreement establishing or governing such partnership or joint venture provided that any limitation on the liability of a person contained in such an agreement shall apply equally to the liability of the person under this Agreement.
(2) Where—
( a ) by reason of the operation of sub-clause (1), a person becomes, or, for any reason, Alcoa of Australia Limited substitutes an Associated company as a party to this Agreement; and
( b ) the smelter site is, within the period of five years after the date on which the Alcoa (Portland Aluminium Smelter) (Amendment) Act 1984 comes into operation, transferred by the Company to the Company or the Associated company and the person who so becomes a party—
stamp duty is not payable in respect of the transfer.
(3) Stamp duty is not payable in respect of an agreement entered into on 31 July 1984 in relation to the establishment of a partnership or joint venture referred to in sub-clause (1) of this clause.
The State hereby acknowledges that the Company is to construct the Smelter under the sanction given by this Agreement and accordingly the State will use its best endeavours to ensure that the rights of the Company under this Agreement are protected for the duration of the Agreement.
This Agreement shall be governed by and interpreted according to the laws applying in the State of Victoria.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinbefore written.
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SIGNED SEALED AND DELIVERED by the said RUPERT JAMES HAMER in the presence of: MICHAEL McDONALD |
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THE COMMON SEAL of ALCOA OF AUSTRALIA LIMITED was hereunto affixed in the presence of: |
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GEORGE T. HAYMAKER Jr. Director P. SPRY-BAILEY Secretary (L.S.) | ||
Sch. First Annexure substituted by No. 10115/1984 s. 6(2)(Sch. item 11).
FIRST ANNEXURE
Commencing at the north-eastern angle of allotment 84, section 13, Parish of
Portland; thence westerly and southerly by the northern and western boundaries
of that allotment to the south-eastern angle of allotment 19; thence westerly
by the southern boundary of that allotment and a line in continuation of that
boundary to the eastern boundary of allotment 18; thence northerly by that
boundary, westerly by the southern alignment of Rebecca Road and northerly by
the eastern boundary of allotment 81 to the southern boundary of allotment 78;
thence westerly by that boundary to the south-eastern angle of the land
contained in Certificate of Title Volume 8719 Folio 884; thence northerly and
westerly by the eastern and northern boundaries of that land and further
westerly by a line in continuation of the northern boundary of that land to
the western alignment of Wellington Road; thence north-easterly by that
alignment to the northern boundary of the land contained in Certificate of
Title Volume 9439 Folio 352; thence westerly, southerly and westerly by that
boundary and southerly and easterly by the western and southern boundaries of
the said Certificate of Title and further easterly by a line in continuation
of the southern boundary thereof to the eastern alignment of Wellington Road;
thence southerly by that alignment and easterly by the northern alignment of
Orana Drive to a point in line with the eastern alignment of Thistle Road;
thence southerly by a line and further southerly and south-easterly by the
eastern and north-eastern alignments of Thistle Road and the land proclaimed
as road by the Governor in Council on 19 October 1982 to the south-western
boundary of allotment 86; thence easterly by a line bearing 97º52´
56·11 metres to the south-eastern boundary of the said allotment; thence
north-easterly by that boundary, a line and the south-eastern boundary of
allotment 24 to the south-eastern angle of the latter allotment; thence
northerly by the eastern boundary of that allotment to the south-eastern angle
of allotment 88A; thence north-westerly by a line bearing 349º06´
883·4 metres, westerly by a line bearing 277º13´ 347·40
metres; north-westerly by lines bearing
340º03´ 550·8 metres
and 349º00´ 405·97 metres; and thence westerly by a line
bearing 277º18´30´´ 63·53 metres to the point of
commencement.
Sch. Second Annexure substituted by No. 10115/1984 s. 6(2)(Sch. item 12).
SECOND ANNEXURE
1. Certificate of Title Volume 9366 Folio 530.
2. Certificate of Title Volume 9363 Folio 963.
3. Certificate of Title Volume 9366 Folio 529.
4. Crown Grant Volume 6952 Folio 298.
5. Certificate of Title Volume 9366 Folio 528.
6. Certificate of Title Volume 7672 Folio 183.
7. Certificate of Title Volume 6155 Folio 975.
8. Certificate of Title Volume 6541 Folio 017.
9. Certificate of Title Volume 8719 Folio 884.
10. Certificate of Title Volume 9498 Folio 204.
11. Certificate of Title Volume 9439 Folio 352.
Sch. Third Annexure inserted by No. 10115/1984 s. 6(2)(Sch. item 12).
THIRD ANNEXURE
The land within the boundaries commencing at the south-eastern angle of
allotment 24, section 13, Parish of Portland; thence northerly by the eastern
boundary of that allotment to the south-eastern angle of allotment 88A; thence
north-westerly by a line bearing 349º06´ 883·4 metres, westerly
by a line bearing 277º13´ 347·40 metres; north-westerly by
lines bearing
340º03´ 550·8 metres and 349º00´
405·97 metres to a point in line with the northern boundary of allotment
84; thence easterly by a line bearing
97º18´ 30ʺ to the sea
coast; thence generally south-easterly, generally westerly, generally
south-easterly and generally north-westerly by the sea-coast to a point in
line with the south-eastern boundary of the balance of the land temporarily
reserved as a site for Public Recreation by Order in Council of 20 October
1884; thence north-easterly by a line bearing 56º49´ 676 metres,
north-westerly by a line bearing 344º32´ 405·1 metres and
westerly by a line bearing 277º52´ 151·58 metres to a point in
line with the south-eastern boundary of allotment 86; and thence
north-easterly by a line, the south-eastern boundary of allotment 86, a line
and the south-eastern boundary of allotment 24 to the point of commencement.
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