Victorian Current Acts Victorian Current ActsSCHEDULE
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THIS AGREEMENT is made the 24th day of October One thousand nine hundred and sixty-seven BETWEEN The Honourable Sir HENRY BOLTE in his capacity as the Premier for the time being of the State of Victoria and for and on behalf of the Crown in right of the said State of the one part and HEMATITE PETROLEUM PROPRIETARY LIMITED a company incorporated under the Companies Act 1961 of the said State, the registered office of which in the said State is situate at 500 Bourke-street, Melbourne, and ESSO EXPLORATION AND PRODUCTION AUSTRALIA INC. a company incorporated in Delaware one of the United States of America and registered as a foreign company under the said Companies Act 1961 , the registered office of which in the said State is situate at 380 Lonsdale-street, Melbourne, aforesaid (hereinafter called "the Companies") of the other parts—
WHEREAS:
I. The Companies desire to establish, in the vicinity of the Port of Westernport in the said State, a plant for the processing of petroleum.
II. The State, for the purpose of encouraging decentralization of industry, desires to facilitate the establishment of the said plant.
III. Before the Companies incur the expense involved in the establishment of the said plant, it is necessary that certain rights and powers incidental to the establishment and operation of the said plant should be conferred on the Companies.
IV. For the purpose of conferring the said rights and powers and making provision for other matters, the parties hereto have agreed to execute this Agreement.
NOW IT IS HEREBY AGREED as follows:
PART I
Preliminary
This Agreement shall not be of any force or effect nor shall the parties hereto have any claim against the other in respect of any matter arising out of or in connexion therewith unless such matter arises after this Agreement has been ratified, validated, approved or otherwise given effect to by an Act of Parliament of the said State.
In this Agreement unless inconsistent with the context or subject-matter—
"the Act" means the Act of the Parliament of the said State ratifying validating approving or otherwise giving effect to this Agreement;
"Chief Engineer" means the Chief Engineer of Ports and Harbors for the State of Victoria, or any other person authorized by him in writing to act for him either generally or in relation to any particular matter under this Agreement;
"commencing date" means the date on which the Act comes into operation;
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"Commissioning Date" means the date on which the Companies or either of them first use the jetty for the receipt or dispatch of petroleum;
"Companies" means Hematite Petroleum Proprietary Limited and Esso Exploration and Production Australia Inc. and any assigns of these companies;
"Governor in Council" has the same meaning as in the Acts Interpretation Act 1958 ;
"jetty" means the jetty to be constructed by the Companies pursuant to this Agreement and includes any additions renovations and alterations made thereto;
"petroleum" includes mineral oil liquefied petroleum gas and other hydrocarbons of any description or source whether crude or refined including but without limiting the generality of the foregoing all products obtained from these substances and mixtures of these substances or their products with other substances;
"pipelines" means pipelines installations and attendant facilities erected, constructed, laid down, established or fixed by the Companies on the jetty or between the plant and the jetty or between the plant and petroleum installations established or to be established in other parts of the said State;
"the plant" means the Fractionation Plant to be constructed on the plant site to the plans and specifications of the Companies in accordance with the provisions of this Agreement and includes all additions and alterations that may be made to the plant;
"plant site" means the whole of the land described in Certificates of Title volume 7926 folio 090 and volume 4784 folio 753 and any other land in the vicinity thereof which has or may be acquired by the Companies;
"Premier" means the Premier for the time being of the State and includes any Minister of the Crown acting for or on behalf of the Premier;
"reclamation area" means the area of land at or near Old Tyabb containing 250
acres 2 roods 30 perches more or less, commencing in the Parish of Tyabb
County of Mornington at the south-western angle of the site temporarily
reserved for a cemetery by Order in Council of the 24th February, 1862;
bounded thence by that site bearing 93° 46′ 1000 links; by
allotment 76 bearing 180° 2′ 200 links, 93° 46′ 2960
links, and 355° 28′ 1495 2 / 10 links; and thence by lines bearing
and measuring approximately 90° 0′ 1000 links,
180° 0′
7652 links, 270° 0′ 682 links, 308° 23′ 5296 links, and
0° 0′ 3333 links to the point of commencement;
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"the State" means the State of Victoria.
The headings and side-notes shall not affect the interpretation of this Agreement.
PART II
Obligations of the Companies
The Companies jointly covenant that they will—
(a) after the commencing date and without undue delay commence and complete the construction of the plant and thereafter so long as this Agreement shall continue maintain operate and use the plant for the processing of petroleum, such construction, maintenance and operation to comply with accepted good industry practice and the standards and specifications required for the time being of similar plants in Great Britain and in the United States of America;
(b) at the cost of the State not exceeding 3 500 000 dollars and to the satisfaction, at all times, of the Chief Engineer—
(i) carry out such preliminary investigations in addition to those conducted by the State as may be necessary in connexion with the design and construction of the jetty;
(ii) design erect and establish a jetty (which shall be and remain the property of the State) extending seaward from the shore adjacent to the south-eastern boundary of the plant site; and
(iii) after
giving at least 14 days notice of their intention so to do to the Minister of
Public Works carry out such dredging as shall provide (at mean low water,
ordinary spring tide)—
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(A) a navigable channel of 40 feet minimum depth and a bottom width of approximately 800 feet through the northern arm of Westernport Bay and between the northern boundary of the swinging circle opposite the Refinery Pier at Crib Point and the area next hereinafter mentioned by a route which is to be agreed with the Chief Engineer;
(B) an adequate area in the vicinity of the jetty with a minimum depth of 40 feet to enable safe and unrestricted berthing of vessels and including a turning circle off the jetty of a diameter of approximately 1800 feet and a minimum depth of 40 feet;
(C) an area approximately 1100 feet long by 275 feet wide alongside the jetty with a minimum depth of 42 feet;
(D) a 30-foot wide area along the berthing line with a minimum depth of 52 feet;
(c) to the satisfaction of the Chief Engineer properly maintain the jetty and make such repairs to the jetty as may from time to time be necessary during the period of 20 years after the commissioning date and for such further periods as are from time to time agreed by the Companies and the Premier but the State shall reimburse the Companies for any cost reasonably incurred by the Companies for so maintaining or repairing the jetty;
(d) at their own cost construct,
erect and establish with any additions thereto that they may from time to time
consider necessary such pipelines as they desire, in accordance with the port
rules in force in the Port of Westernport and to the satisfaction of the Chief
Engineer, for the loading, unloading of petroleum, provision of a
fire-fighting service and the provisioning, bunkering, servicing and watering
of vessels using the jetty PROVIDED that such pipelines shall be and remain
the property of the Companies;
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(e) not cause, or permit to be caused any pollution of the waters of Westernport Bay from within the Plant, the Plant site, the Pipelines, or other sources within the control of the Companies: PROVIDED that this clause shall not be understood to impose any obligation or operating restrictions on the Companies more stringent that those imposed on any other persons engaged in similar operations in the Westernport Bay area;
(f) comply with all statutes, regulations and rules relating to standards health or safety in the construction, operation and maintenance of the plant and of the facilities attendant thereto including the jetty and all pipelines.
PART III
The Premier, on behalf of the State, covenants that the State will—
(a) by virtue of the Act [and without the necessity for any other authority, approval, permit, licence or consent, other than any authority approval permit licence or consent required under the Town and Country Planning Act 1961 and the Local Government Act 1958 in connexion with the construction operation and maintenance of any building or structure], authorize—
(i) the performance by the Companies of the covenants contained in paragraphs (a), (b), (c) and (d) of clause 4; and
(ii) subject to the port rules for the time being applicable to Westernport, the Companies to manage and control the jetty together with the pipelines of the Companies thereon and permit the Companies the prior but not exclusive right to the use of the jetty PROVIDED that the State will not authorize any other person to use the jetty in a way that would prejudicially affect or interfere with the operations of the Companies;
(b) maintain the dredging of the
channel and areas mentioned in clause 4(b)(iii) hereof;
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(c) install and maintain adequate navigational aids for both day and night navigation;
(d) maintain repair and operate tugs and small craft sufficient and adequate to provide normal harbour services at all times including a fire-fighting service (all of which tugs craft and services are hereinafter called "the harbour services"), and shall make same available as necessary to satisfy the operational requirements of the plant and of the vessels entering and leaving Westernport for purposes connected with the Plant, at rates no higher than the rates at which such services are made available to any other user;
(e) from time to time consult with the Companies as to the extent and methods of operation of the harbour services;
(f) facilitate through the State Electricity Commission of Victoria and ensure the provision to the Companies at a point on the boundary of the Plant site as may be mutually agreed an adequate supply of electricity for construction and operational purposes at rates agreed between the Commission and the Companies;
(g) facilitate through the State Rivers and Water Supply Commission and ensure the provision to the Companies at a point on the boundary of the plant site as may be mutually agreed an adequate supply of water at such pressure as is determined by the Commission for construction and operational purposes at rates to be agreed between the Commission and the Companies;
(h) provide adequate roads from the plant site to principal roads and such other roads as are required along the foreshore for construction and access purposes;
(i) ensure that an adequate pilotage service is provided at all times of the day and night for vessels entering and leaving Westernport Bay for purposes connected with the Plant, at rates not exceeding those charged for such service to any other vessels;
(j) permit the Companies—
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(i) to draw sea water without charge from Westernport Bay for their operations on the plant site and for this purpose to construct such works and use such portions of the sea bed as may be mutually agreed; and
(ii) to discharge in a manner approved by the Minister of Public Works into the waters of Westernport without fee, charge or royalty any effluent which in the opinion of the Minister of Public Works is of a kind and at a temperature that will not cause pollution or harm to or in those waters;
(k) grant to the Companies the exclusive right to reclaim in accordance with plans and specifications approved by the Minister of Public Works the whole or any part of the land in the reclamation area at any time within 10 years after the execution of this Agreement or within such further period as is before the expiration of that period agreed to by the Premier;
(l) subject to sub-paragraphs (i) (ii) (iii) (iv) and (v) of this paragraph grant to the Companies a lease or leases of the whole or any part of the land in the reclamation area that has been reclaimed to the satisfaction of the Minister of Public Works for a term of 75 years at a rental of not more than $10 per acre per annum:
Provided that—
(i) the companies shall not be entitled to a lease of any of the land that in the opinion of the Minister of Public Works is necessary for or in connexion with the jetty to be established pursuant to this Agreement;
(ii) any such lease shall authorize the use of the land by the Companies for purposes associated with the manufacture processing and storage of petroleum or such other purposes as are from time to time authorized by the Governor in Council and not otherwise;
(iii) any such
lease shall be subject to such covenants conditions reservations exceptions
and provisions as the Governor in Council thinks fit;
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(iv) a lease shall not be granted pursuant to this paragraph after the expiration of twenty years from the execution of the Agreement;
(v) the companies shall be liable to pay costs of any survey in connexion with any such lease and the fees applicable to leases under the Land Act 1958 shall supply to any such lease;
(m) authorize the Governor in Council for a consideration of not less than the full market value of the land as determined by an appraiser appointed by the Minister of Lands in accordance with the provisions of the Land Act 1958 at the time of the grant, to grant in fee simple to the Companies the whole or any part of the land in the reclamation area that has been reclaimed to the satisfaction of the Minister of Public Works:
Provided that—
(i) the State shall not be required to grant access to the land comprised in any such grant;
(ii) the companies shall be liable to pay the costs of any survey undertaken in connexion with the grant and the requirement to make a contribution to the Assurance Fund established under the Transfer of Land Act 1958 and the fees applicable to Crown grants under the Land Act 1958 shall apply to any grant under this paragraph; and
(iii) any such grant shall be subject to such covenants conditions reservations exceptions and provisions as the Governor in Council thinks fit;
(n) enable the Governor in Council to grant any easement right or privilege over any Crown land to the companies for any purpose which in his opinion is necessary or expedient to facilitate the operations of the Companies;
(o) revoke the temporary reservation
for public purposes made by Order in Council dated 12th July, 1937, and
published in the Government Gazette on 21st July, 1937, as to so much of the
reservation as is within the reclamation area.
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PART IV
(a) Notwithstanding any provision of any other law or regulation which would otherwise be applicable to goods of the kinds described in the table below which are received or dispatched from the jetty for the purposes of or in connexion with the plant (but not including ship's bunkers, lubricants, stores or other vessel supplies not shipped as cargo), there shall be payable therefor (subject however to the provisions of sub-clause (b) of this clause) only the wharfage charges calculated at the rates set out in the said table opposite the description of those goods.
TABLE
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Inward Wharfage Charges | ||
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Description of Goods | ||
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(i) |
Goods of any kind received over the jetty in each year of the said period of twenty years commencing on the commissioning date. |
The rates generally applicable from time to time in the Port of Westernport pursuant to any Statute or Statutes and the regulations thereunder made from time to time. |
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Outward Wharfage Charges | ||
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(ii) |
Goods of any kind (other than petroleum) dispatched over the jetty in each year of the said period of twenty years commencing on the commissioning date. |
The rates generally applicable from time to time in the Port of Westernport pursuant to any Statute or Statutes and the regulations thereunder made from time to time. |
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(iii) |
Petroleum dispatched over the jetty in each year of the said period of twenty years commencing on the commissioning date. |
10 cents a ton as defined in sub-clause (d) on the first 4 500 000 tons and 5 cents per ton thereafter, subject to the minimum annual payments as provided for in sub-clause (b). |
(b) Where in any year during the
said period of twenty years the total of the inward and outward wharfage
charges pursuant to the above Table on petroleum is less than the total
wharfage charges shown below for any such year, the Companies shall
within fourteen (14) days after demand in writing is made by the Public Works
Department of the said State, pay to the State the amount of the difference
between these charges and—
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(i) in the
first second or third year
after the Commissioning date
$300 000
(ii) in the
fourth fifth sixth seventh
eighth or ninth year after the
Commissioning date
$350 000
(iii) in any
subsequent year after the
Commissioning date $450 000.
(c) After the said period of twenty years the wharfage charges on inward and outward petroleum shall be determined from time to time by the State after consultation with the Companies but in making any such determination the State shall have regard to comparable wharfage charges in force in other ports in Australia.
(d) For the purpose of any calculation under or in relation to sub-clauses (a) and (b) of this Agreement it is agreed that—
One ton of Propane is equal to 430 Imperial Gallons.
One ton of Butane is equal to 400 Imperial Gallons.
One ton of Condensate/Crude Oil is equal to 280 Imperial Gallons at 60°F.
If petroleum having characteristics significantly different from those shown above is moved across the jetty the State may establish other equivalents for these products.
(e) There shall be exempted from all wharfage charges hereunder all materials, supplies and equipment which are moved across the jetty in connexion with the construction, reconstruction, alterations or additions to the jetty, pipelines or plant.
(f) Wharfage rates, if any, charged
for ship's bunkers, lubricants, stores or other vessel supplies not shipped as
cargo shall not be greater than the rates, from time to time, applicable by
law in the port of Melbourne.
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(g) If the State grants another person or persons the right to use the jetty under clause 5(a)(ii) the wharfage fees charged to them shall not be less than those specified in sub-clause 6(a). In addition, total wharfage charges payable by all such persons will be considered to be payments made by the Companies for purposes of application of the minimum payment provisions of sub-clause 6(b).
(h) The Companies shall, from time to time during the progress of the works to be carried out by them under this Agreement at the cost of the State, submit to the State statements audited by independent auditors selected by the Companies of the progress expenditure by each Company on such works, and subject to the approval of such statements by the State or its nominee, the State shall reimburse the Companies for the amount expended by them on the said works within a reasonable time as mutually agreed.
PART V
General
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.
(1) This Agreement or any rights therein shall not be assigned or otherwise dealt with by the Companies or either of them except as provided hereinafter.
(2) Either of the Companies may assign its rights in this Agreement to a Company which is its subsidiary Company within the meaning of the Companies Act 1961 .
(3) With the consent in writing of the Premier the
Companies may assign their rights under this Agreement or either of the
Companies may assign its rights under this Agreement and such consent shall
not be unreasonably withheld but may be given subject to such reasonable
conditions as the Premier thinks fit.
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(4) A subsidiary Company to which rights under this Agreement have been assigned shall have the like rights to assign its rights either alone or jointly with the other company as the Companies have under this clause.
This Agreement is made subject to any delay in the performance of any obligation under this Agreement which may be occasioned by or arise from circumstances beyond the power and control of the party responsible for the performance 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, strikes, lock-outs, stoppages, restraint of labour, whether partial or general, shortage of essential materials, reasonable failure to secure or delays of contractors, riots and civil commotion and a failure by either party to perform its obligation for any such reason shall not be deemed a breach of this Agreement and such obligations shall be performed within a reasonable period following the cessation of the circumstances which so delayed performance.
The Premier, on the one part, and the Companies, on the other part, may from time to time enter into agreements or arrangements with each other for better giving effect to the provisions of this Agreement.
If the Companies or either of them—
(a) enters into liquidation (other than a voluntary liquidation for the purpose of reconstruction); or
(b) delays the commencement of the construction of the plant beyond the period of one year from the commencing date for any cause other than one or more of those specified in clause 9 hereof; or
(c) abandons or repudiates this Agreement—
the Premier may by notice in writing determine this Agreement but such determination shall not affect the enforcement of any right, obligation or liability theretofore accrued or incurred.
The Companies may, at their own cost, with the prior approval in writing of the Premier and to the satisfaction of the Chief Engineer, construct erect and establish such additions and alterations to the jetty, and carry out such dredging as, in the opinion of the Companies, may be necessary to provide for any increase in the designed capacity or throughput of the plant.
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If there shall be any difference or dispute between the parties hereto in respect of any matter arising out of or in connexion with this Agreement either party may give notice to the other of the difference or dispute and if the difference or dispute is not settled within one month after service of the notice—
(a) that matter shall be referred to two arbitrators one to be appointed by the Companies and one by the Premier; and
(b) the provisions of the Arbitration Act 1958 (in particular the provision allowing arbitrators to appoint an umpire) shall apply to the reference as if it were a reference by consent under that Act.
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 registered office of the Companies (or either of them) in the said State or to the plant site, and by the Companies if signed by a director or the secretary of either company in the said State, and forwarded by prepaid post to the Premier and any such notice consent or writing shall be deemed to have been received on the day on which it would be delivered in the ordinary course of post.
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This Agreement shall be interpreted according to the laws for the time being in force in the said State.
IN WITNESS whereof the parties hereto have executed this Agreement the day and year first above written.
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Signed sealed and delivered by the said SIR HENRY BOLTE in the presence of MURRAY PORTER— |
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K. A. ROWELL |
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Signed sealed and delivered by Esso Exploration and Production Australia Inc. by its attorney EDWIN JAMES STANLEY in the presence of L. H. BODNARUK— |
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