Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading amended: No. 19 of 2010 s. 4.]
THE AGREEMENT
DARDANUP PINE LOG SAWMILL AGREEMENT
THIS AGREEMENT is made this 26th day of May 1992
BETWEEN
THE HONOURABLE CARMEN MARY LAWRENCE , B.Psych.,Ph.D., M.L.A., Premier of the
State of Western Australia, acting for and on behalf of the said State and its
instrumentalities from time to time (hereinafter called “the
State”) of the first part
WESPINE INDUSTRIES PTY. LTD. ACN 052 954 337 a company incorporated in the
State of Western Australia and having its registered office at 10th Floor, 225
St George’s Terrace, Perth (hereinafter called “the Company”
in which term shall be included its successors and permitted assigns) of the
second part WESTRALIAN FOREST INDUSTRIES LIMITED ACN 008 672 740 a company
incorporated in the State of Western Australia and having its registered
office at 1-27 Somersby Road, Kewdale (hereinafter called “WESFI”)
of the third part
AND BUNNINGS LIMITED ACN 008 673 363 a company incorporated in the State of
Western Australia and having its registered office at 4th Floor, 255 Adelaide
Terrace, Perth (hereinafter called “Bunnings”) of the fourth part.
W H E R E A S:
(a) the Company is desirous of expanding the
operations of the existing pine log sawmill at Dardanup for the production of
finished timber for sale into domestic and international markets by
progressively over ten years increasing the throughput of the sawmill from the
current log input capacity of 70,000 cubic metres to 400,000 cubic metres per
annum;
(b) timber to the pine log sawmill is to be
sourced in part from State softwood forest pursuant to an agreement to be
entered into between the Company and the Executive Director of the Department
of Conservation and Land Management;
(c) the State for the purpose of promoting
employment opportunity and industrial development in Western Australia desires
to assist the proposed expansion upon and subject to the terms of this
Agreement.
NOW THIS AGREEMENT WITNESSES:
Definitions
1. In this Agreement subject to the context
—
“advise” , “apply” ,
“approve” , “approval” , “consent” ,
“certify” , “direct” , “notify” ,
“request”, or “require”, means advise, apply, approve,
approval, consent, certify, direct, notify, request, or require in writing as
the case may be and any inflexion or derivation of any of those words has a
corresponding meaning;
“approved proposal” means a proposal
approved or determined under this Agreement;
“Bunnings softwood plantations” means
—
(a) land
as at the date of this Agreement which is owned by Bunnings or its related
bodies corporate in the said State on which trees of Pinus species radiata or
pinaster are grown;
(b) land
on which trees of Pinus species radiata or pinaster are grown and in respect
of which Bunnings or its related bodies corporate has, at the date of this
Agreement, a contractual right to acquire sawlogs; and
(c)
lands on which trees of Pinus species radiata or pinaster are grown and which
after the date of this Agreement are owned by Bunnings or its related bodies
corporate or in respect of which Bunnings or its related bodies corporate has,
after the date of this Agreement, a contractual right to acquire sawlogs;
“CALM Act” means the
Conservation and Land Management Act 1984 ;
“Clause” means a clause of this
Agreement;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“EP Act” means the
Environmental Protection Act 1986 ;
“Executive Director” means the
Executive Director of the Department of Conservation and Land Management
referred to in section 38(1) of the CALM Act;
“local authority” means the council of
a municipality that is a city, town or shire constituted under the Local
Government Act 1960 ;
“log timber” means sawlog quality
timber comprising Pinus species radiata and pinaster grown in State softwood
forest and felled for the purpose of the agreement referred to in subclause
(1) of Clause 10;
“management plans” means management
plans published under section 60 of the CALM Act;
“Minister” means the Minister in the
Government of the State for the time being responsible for the administration
of the Act to ratify this Agreement and pending the passing of that Act means
the Minister for the time being designated in a notice from the State to the
Company and includes the successors in office of the Minister;
“Minister for Planning” means the
Minister in the Government of the State for the time being responsible for the
administration of the Town Planning and Development Act 1928 ;
“month” means calendar month;
“notice” means notice in writing;
“person” or “persons”
includes bodies corporate;
“pine log sawmill” means the sawmill
and ancillary buildings on the sawmill site;
“public road” means a road as defined
by the Road Traffic Act 1974 ;
“related bodies corporate” means
bodies corporate related within the meaning of that term in section 50 of the
Corporations Act 1989 of the Commonwealth to Bunnings or WESFI as the case may
require;
“said State” means the State of
Western Australia;
“sawmill site” means the land at
Dardanup shown coloured red on the plan marked “A” initialled by
or on behalf of the parties hereto for the purpose of identification;
“scheduled works” means the expansion
in stages, pursuant to market demand, of the pine log sawmill as outlined in
the Schedule to this Agreement;
“State Energy Commission” means The
State Energy Commission of Western Australia as described in section 7 of the
State Energy Commission Act 1979 ;
“State softwood forest” means any land
in the Swan, Central and Southern Forest Regions as those areas are at the
date of this Agreement defined under the relevant management plans on which
trees of Pinus species radiata or pinaster are grown and which is held or
occupied by the Executive Director under the CALM Act or in respect of which
an agreement for harvesting and selling softwood on that land has been made
between the Executive Director and another person under or pursuant to the
CALM Act, but not including any land the subject of Bunnings softwood
plantations or WESFI softwood plantations;
“subclause” means subclause of the
Clause in which the term is used;
“this Agreement” “hereof”
and “hereunder” refer to this Agreement (including the Schedule)
whether in its original form or as from time to time added to varied or
amended;
“WESFI softwood plantations” means
—
(a) land
as at the date of this Agreement which is owned by WESFI or its related bodies
corporate in the said State on which trees of Pinus species radiata or
pinaster are grown;
(b) land
on which trees of Pinus species radiata or pinaster are grown and in respect
of which WESFI or its related bodies corporate has, at the date of this
Agreement, a contractual right to acquire sawlogs.
(c)
lands on which trees of Pinus species radiata or pinaster are grown and which
after the date of this Agreement are owned by WESFI or its related bodies
corporate or in respect of which WESFI or its related bodies corporate has,
after the date of this Agreement, a contractual right to acquire sawlogs.
Interpretation
2. In this Agreement —
(a)
monetary references are references to Australian currency unless otherwise
specifically expressed;
(b)
power given under any clause other than Clause 22 to extend any period or date
shall be without prejudice to the power of the Minister under Clause 22;
(c)
clause headings do not affect the interpretation or construction;
(d)
words in the singular shall include the plural and words in the plural shall
include the singular according to the requirements of the context; and
(e)
reference to an Act includes the amendments to that Act for the time being in
force and also any Act passed in substitution therefor or in lieu thereof and
the regulations for the time being in force thereunder.
Ratification of Agreement
3. The State shall introduce and sponsor a Bill in
the Parliament of Western Australia to ratify this Agreement and endeavour to
secure its passage as an Act prior to 1 July 1992 or such later date as the
parties hereto may agree.
Commencement and operation of Agreement
4. (1) The provisions
of this Agreement other than this Clause and Clauses 1, 2 and 3 shall not
commence to operate until the Bill referred to in Clause 3 has been passed by
the Parliament of Western Australia and comes into operation as an Act.
(2) If before 1 July
1992 or such later date as may be agreed pursuant to Clause 3 the said Bill
has not come into operation as an Act then unless the parties hereto otherwise
agree this Agreement shall then cease and determine and no party hereto shall
have any claim against any other party hereto with respect to any matter or
thing arising out of, done, performed, or omitted to be done or performed
under this Agreement.
(3) On the said Bill
coming into operation as an Act all the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law.
Company to submit proposals
5. (1) The Company
shall on or before 30 September 1992 and subject to EP Act and to the
provisions of this Agreement submit to the Minister to the fullest extent
reasonably practicable its detailed proposals for the scheduled works which
proposals shall include plans where appropriate and specifications where
reasonably required by the Minister and shall include the location, area,
lay-out, design, quantities, materials and time programme for the commencement
and completion of construction or the provision (as the case may be) of each
of the following matters, namely —
(a) the
expansion in stages of the pine log sawmill to a log input capacity of 400,000
cubic metres per year in accordance with the scheduled works;
(b)
personnel requirements and recruitment policies;
(c)
transport;
(d)
power supply;
(e)
water supply;
(f) use
of local labour professional services manufacturers suppliers contractors and
materials and measures to be taken with respect to the engagement and training
of employees by the Company, its agents and contractors in connection with the
scheduled works; and
(g) an
environmental management programme as to measures to be taken, in respect of
the Company’s obligations under the EP Act, for the protection and
management of the environment in relation to its activities under this
Agreement.
Order of proposals
(2) The proposals
pursuant to subclause (1) may with the approval of the Minister or if so
required by him shall be submitted separately and in any order as to the
matter or matters mentioned in one or more of paragraphs (a) to (g) of
subclause (1).
Use of existing infrastructure
(3) The proposals
pursuant to subclause (1) may with the approval of the Minister and that of
any other parties concerned instead of providing for the construction of new
facilities or equipment or the provision of new services of the kind therein
mentioned provide for the use by the Company of any existing facilities
equipment or services of such kind belonging to the Company or, upon
reasonable terms and conditions, of any other existing facilities equipment or
services of such kind.
Additional submissions
(4) At the time when
the Company submits the said proposals it shall submit to the Minister details
of any services (including any elements of the project investigations design
and management) and any works materials plant equipment and supplies that it
proposes to consider obtaining from or having carried out or permitting to be
obtained from or carried out outside Australia together with its reasons
therefor and shall, if required by the Minister, consult with the Minister
with respect thereto.
Marketing and financial arrangements
(5) At the time when
the Company submits the said proposals it shall furnish to the
Minister’s reasonable satisfaction —
(a)
details of marketing arrangements demonstrating the Company’s ability to
profitably sell or use pine log products and by-products manufactured at the
pine log sawmill;
(b)
details of the availability of finance necessary for the fulfilment of the
operations to which the said proposals refer; and
(c)
confirmation of the readiness of the Company to embark upon and proceed to
carry out the operations referred to in those proposals.
Consideration of proposals
6. (1) Subject to the
EP Act, in respect of each proposal submitted pursuant to subclause (1) of
Clause 5 the Minister shall —
(a)
approve of the proposal without qualification or reservation; or
(b)
defer consideration of or decision upon the same until such time as the
Company submits a further proposal or proposals in respect of some other of
the matters mentioned in subclause (1) of Clause 5 not covered by the said
proposal as shall be specified by the Minister; or
(c)
require as a condition precedent to the giving of his approval to the said
proposal that the Company make such alteration thereto or comply with such
conditions in respect thereto as he thinks reasonable and in such a case the
Minister shall disclose his reasons for such conditions,
PROVIDED ALWAYS that
where implementation of any proposals hereunder has been approved pursuant to
the EP Act subject to conditions or procedures, any approval or decision of
the Minister under this Clause shall if the case so requires incorporate a
requirement that the Company make such alterations to the proposals as may be
necessary to make them accord with those conditions or procedures.
Advice of Minister’s decision
(2) The Minister shall
within 2 months after receipt of proposals pursuant to subclause (1) of Clause
5 or where the proposals are to be assessed under section 40(1)(b) of the EP
Act then within two months after service on him of an authority under section
45(7) of the EP Act give notice to the Company of his decision in respect to
the proposals.
Consultation with Minister
(3) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(1) the Minister shall afford the Company full opportunity to consult with him
and should it so desire to submit new or revised proposals either generally or
in respect to some particular matter.
Minister’s decision subject to arbitration
(4) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(1) and the Company considers that the decision is unreasonable the Company
within two months after receipt of the notice mentioned in subclause (2) may
elect to refer to arbitration in the manner hereinafter provided the question
of the reasonableness of the decision PROVIDED THAT any requirement of the
Minister pursuant to the proviso to subclause (1) shall not be referable to
arbitration hereunder.
Arbitration award
(5) An award made on
an arbitration pursuant to subclause (4) shall have force and effect as
follows —
(a) if
by the award the dispute is decided against the Company then unless the
Company within 3 months after delivery of the award gives notice to the
Minister of its acceptance of the award this Agreement shall on the expiration
of that period of 3 months cease and determine; or
(b) if
by the award the dispute is decided in favour of the Company the decision
shall take effect as a notice by the Minister that he is so satisfied with and
approves the matter or matters the subject of the arbitration.
Effect of non-approval of proposals
(6) Notwithstanding
that under subclause (1) any proposals of the Company are approved by the
Minister or determined by arbitration award, unless each and every such
proposal and matter is so approved or determined by 30 September 1993 or by
such extended date or period if any as the Company shall be granted pursuant
to the provisions of this Agreement then the Minister may give to the Company
12 months notice of intention to determine this Agreement and unless before
the expiration of the said 12 months period all the detailed proposals and
matters are so approved or determined this Agreement shall cease and determine
subject however to the provisions of Clause 24.
Implementation of proposals
(7) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act the Company shall implement the approved proposals in accordance with the
terms thereof.
Additional proposals
7. (1) If the Company
at any time during the continuance of this Agreement desires to significantly
modify expand or otherwise vary its activities at the pine log sawmill carried
on pursuant to this Agreement beyond those activities specified in any
approved proposals it shall give notice of such desire to the Minister and
within 2 months thereafter shall submit to the Minister detailed proposals in
respect of all matters covered by such notice and such of the other matters
mentioned in paragraphs (a) to (g) of subclause (1) of Clause 5 as the
Minister may require.
(2) The provisions of
Clause 5 and Clause 6 (other than subclauses (5) and (6) of Clause 6) shall
mutatis mutandis apply to detailed proposals submitted pursuant to this
subclause with the proviso that the Company may withdraw such proposals at any
time before approval thereof or, where any decision of the Minister in respect
thereof is referred to arbitration,within 3 months after the award by notice
to the Minister that it shall not be proceeding with the same. Subject to and
in accordance with the EP Act and any approvals and licences required under
that Act the Company shall implement approved proposals pursuant to this
Clause in accordance with the terms thereof.
Protection and management of the environment
8. (1) The Company
shall in respect of the matters referred to in paragraph (g) of subclause (1)
of Clause 5 and which are the subject of approved proposals, carry out a
continuous programme including monitoring to ascertain the effectiveness of
the measures it is taking pursuant to such approved proposals for the
protection and management of the environment and shall as and when reasonably
required by the Minister from time to time submit to the Minister a detailed
report thereon.
(2) Whenever as a
result of its activities pursuant to subclause (1) or otherwise information
becomes available to the Company which in order to more effectively protect or
manage the environment may necessitate or could require any changes or
additions to any approved proposals or require matters not addressed in any
such proposals to be addressed the Company shall forthwith notify the Minister
thereof and with such notification shall submit a detailed report thereon.
(3) The Minister may
within 2 months of the receipt of a detailed report pursuant to subclause (1)
or (2) notify the Company that he requires additional detailed proposals to be
submitted in respect of all or any of the matters the subject of the report
and such other reasonable matters as the Minister may require in connection
therewith.
(4) The Company shall
within 2 months of receipt of a notice given pursuant to subclause (3) submit
to the Minister additional detailed proposals as required and the provisions
of subclauses (1), (2), (3) and (4) of Clause 6 shall mutatis mutandis apply.
(5) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act the Company shall implement the decision of the Minister or an award on
arbitration as the case may be in accordance with the terms thereof.
Use of local labour professional services and materials
9. (1) The Company
shall, for the purposes of this Agreement —
(a)
except in those cases where the Company can demonstrate it is impracticable so
to do, use labour available within Western Australia (using all reasonable
endeavours to ensure that as many as possible of the Company’s workforce
be recruited from the South West region of the said State) or if such labour
is not available then, except as aforesaid, use labour otherwise available
within Australia;
(b) as
far as it is reasonable and economically practicable so to do, use the
services of engineers surveyors architects and other professional consultants
experts and specialists, project managers, manufacturers, suppliers and
contractors resident and available within Western Australia or if such
services are not available within Western Australia then, as far as
practicable as aforesaid, use the services of such persons otherwise available
within Australia;
(c)
during design and when preparing specifications, calling for tenders and
letting contracts for works materials plant equipment and supplies in
connection with the scheduled works (which shall at all times, except where it
is impracticable so to do, use or be based upon Australian Standards and
Codes) ensure that suitably qualified Western Australian and Australian
suppliers manufacturers and contractors are given fair and reasonable
opportunity to tender or quote;
(d) give
proper consideration and where possible preference to Western Australian
suppliers manufacturers and contractors when letting contracts or placing
orders for works, materials, plant, equipment and supplies in connection with
the scheduled works where price quality delivery and service are equal to or
better than that obtainable elsewhere or, subject to the foregoing, give that
consideration and where possible preference to other Australian suppliers
manufacturers and contractors; and
(e) if
notwithstanding the foregoing provisions of this subclause a contract is to be
let or an order is to be placed in connection with the scheduled works with
other than a Western Australian or Australian supplier, manufacturer or
contractor, give proper consideration and where possible preference to tenders
arrangements or proposals that include Australian participation.
(2) Except as
otherwise agreed by the Minister the Company shall in every contract entered
into with a third party for the supply of services labour works materials
plant equipment or supplies for the purposes of this Agreement require as a
condition thereof that such third party shall undertake the same obligations
as are referred to in subclause (1) and shall report to the Company concerning
such third party’s implementation of that condition.
(3) The Company shall
submit a report to the Minister at quarterly intervals or such longer period
as the Minister determines commencing from the date of this Agreement
concerning its implementation of the provisions of this Clause together with a
copy of any report received by the Company pursuant to subclause (2) during
that quarter or longer period as the case may be PROVIDED THAT the Minister
may agree that any such reports need not be provided in respect of contracts
of such kind or value as the Minister may from time to time determine.
(4) The Company shall
keep the Minister informed on a regular basis as determined by the Minister
from time to time or otherwise as required by the Minister during the currency
of this Agreement of any services (including any elements of the project
investigations design and management) and any works materials plant equipment
and supplies in connection with the scheduled works that it may be proposing
to obtain from or have carried out or permit to be obtained from or carried
out outside Australia together with its reasons therefor and shall as and when
required by the Minister consult with the Minister with respect thereto.
Supply of timber
10. (1)
(a) The State shall ensure that the Executive
Director shall supply to the Company over a 20 year period not less than
5,500,000 and up to 6,000,000 cubic metres of log timber in accordance with
log specifications, at rates and upon reasonable and commercial terms and
conditions to be agreed between the Executive Director and the Company with
provision for an extension by the Company of the said term for a further term
of 20 years subject to the capacity of the State to supply log timber within
the limits of good forest management over such further term and the Executive
Director is hereby empowered to enter into such agreement.
(b) If
the Company desires an expansion of the capacity of the pine log sawmill above
400,000 cubic metres per annum the State shall investigate its capacity to
supply to the Company upon reasonable and commercial terms and conditions
further quantities of log timber within the limits of good forest management
as it is at that time able to supply from the State softwood forest or, if the
State determines that the requisite supplies are not available from that
source then such other forest under its control, if any, as may be a
practicable and commercial source of supply for the Company having regard for
the place or places of its operation.
(2) For the purpose of
subclause (1), subsection (2) of section 91 of the CALM Act 1984 shall be
deemed to be modified by the deletion of “15 years” and the
substitution of the following —
“40
years”.
(3) The State shall
ensure that the Executive Director shall not contract to supply from State
softwood forest Pinus radiata or Pinus pinaster of sawlog quality suitable for
the production of sawn timber by the Company at the pine log sawmill to a
third party on terms more favourable on the whole to the third party than
those under which the Company is being supplied pursuant to subclause (1)
without similar terms being made available to the Company.
Bunnings commitment
11. (1) Bunnings
agrees with the State that Bunnings and its relevant related bodies corporate
shall contract with the Company on reasonable commercial terms to sell to the
Company all sawlog quality timber from the Bunnings softwood plantations at
prices equivalent to the prices payable by the Company to the Executive
Director under the agreement to be entered into in accordance with Clause 10.
(2) The contract
referred to in subclause (1) will also contain terms to the following effect:
—
(a)
nothing in the contract shall restrict or affect the manner in which Bunnings
or its related bodies corporate may manage the Bunnings softwood plantations
from time to time. Without limiting the generality of the foregoing, Bunnings
or any of its related bodies corporate may at any time utilise any of the
trees on the Bunnings softwood plantations for the purposes of producing chip
logs or round logs;
(b) if
to do so would increase the financial value of the Bunnings softwood
plantations, Bunnings or its related bodies coporate may remove trees from the
Bunnings softwood plantations;
(c)
Bunnings or its related bodies corporate (as the case may be) shall take
reasonable steps to preserve their rights under any contracts existing as at
the date of this Agreement with third parties in respect of sawlog quality
timber which may be supplied to the Company;
(d)
Bunnings and its related bodies corporate shall be free to sell any Bunnings
softwood plantation from time to time: —
(i)
if the trees have previously been removed from it in
accordance with paragraph (b) of this subclause; or
(ii)
if the Purchaser delivers to the Company an agreement in
a form which the Company may reasonably require, agreeing to be bound by and
to perform and observe all of the obligations of Bunnings or its related
bodies corporate as the case may be, to supply sawlog quality timber to the
Company.
WESFI commitment
12. (1) WESFI agrees
with the State that WESFI and its relevant related bodies corporate shall
contract with the Company on reasonable commercial terms to sell to the
Company all sawlog quality timber from the WESFI softwood plantations at a
price equivalent to the price payable by the Company to CALM in accordance
with the agreement to be entered into in accordance with Clause 10.
(2) The contract
referred to in subclause (1) will also contain terms to the following effect:
—
(a)
nothing in the contract shall restrict or affect the manner in which WESFI or
its related bodies corporate may manage the WESFI softwood plantations from
time to time. Without limiting the generality of the foregoing, WESFI or any
of its related bodies corporate may at any time utilise any of the trees on
the WESFI softwood plantations for the purposes of producing chip logs or
round logs;
(b) if
to do so would increase the financial value of the WESFI softwood plantations,
WESFI or its related bodies corporate may remove trees from the WESFI softwood
plantations;
(c)
WESFI or its related bodies corporate (as the case may be) shall take
reasonable steps to preserve their rights under any contracts existing as at
the date of this Agreement with third parties in respect of sawlog quality
timber which may be supplied to the Company;
(d)
WESFI and its related bodies corporate shall be free to sell any WESFI
softwood plantation from time to time: —
(i)
if the trees have previously been removed from it in
accordance with paragraph (b) of this subclause; or
(ii)
if the Purchaser delivers to the Company an agreement in
a form which the Company may reasonably require, agreeing to be bound by and
to perform and observe all of the obligations of WESFI or its related bodies
corporate as the case may be, to supply sawlog quality to the Company.
Roads
13. (1) The Company
shall —
(a) be
responsible for the cost of the construction and maintenance of all its
private roads used in its activities hereunder;
(b) at
its own cost erect signposts and take other steps that may be reasonable in
the circumstances to prevent any persons and vehicles other than those engaged
upon the Company’s activities and its invitees and licensees from using
the private roads; and
(c) at
any place where any private roads are constructed by the Company so as to
cross any railways or public roads provide at its cost such reasonable
protection and signposting as may be required by the Commissioner of Main
Roads or the Railways Commission as the case may be.
Maintenance of public roads
(2) The State shall
maintain or cause to be maintained those public roads under the control of the
Commissioner of Main Roads or a local authority which may be used by the
Company for the purposes of this Agreement to a standard similar to comparable
public roads maintained by the Commissioner of Main Roads or a local authority
as the case may be.
Upgrading of public roads
(3) (a)
In the event that for or in connection with the
Company’s activities hereunder the Company or any person engaged by the
Company uses or wishes to use a public road (whether referred to in subclause
(2) or otherwise) which is inadequate for the purpose, or any use by the
Company or any person engaged by the Company of any public road results in
excessive damage to or deterioration thereof (other than fair wear and tear)
then the Company shall pay to the State or the local authority as the case may
require the whole or an equitable part of the total cost of any upgrading
required or of making good the damage or deterioration as may be reasonably
required by the Commissioner of Main Roads having regard to the use of such
public road by others.
(b) It
is declared and agreed for the purposes of this subclause that the Executive
Director supplying log timber to the sawmill site pursuant to the agreement
referred to in subclause (1) of Clause 10 is not a person engaged by the
Company referred to in paragraph (a) of this subclause.
Transport permits
14. Subject to the observance of all statutory
requirements by the Company, the Executive Director and persons carting logs
for the Company or the Executive Director (as the case may require), those
persons shall be issued with extra-mass and overlength vehicle permits by the
Commissioner of Main Roads appropriate to the road transport routes used by
the Company, the Executive Director or other persons aforesaid as the case may
be and as may be required to enable the efficient cartage of logs to the
sawmill site.
Power
15. (1) The Company
shall confer with the State Energy Commission with respect to the
Company’s power requirements from time to time for the Company’s
operations at the sawmill site.
(2) The Company and
the State Energy Commission shall enter into arrangements for the provision of
power to the sawmill site if required during the currency of this Agreement on
the terms and conditions to be negotiated between them.
Water
16. The water requirements of the Company for its
operations at the sawmill site shall be obtained in accordance with the
provisions of the Water Authority Act 1984 or other relevant Act.
No discriminatory rates
17. Except as provided in this Agreement the State
shall not impose, nor shall it permit or authorise any of its agencies or
instrumentalities or any local or other authority of the State to impose
discriminatory taxes rates or charges of any nature whatsoever on or in
respect of the titles property or other assets products materials or services
used or produced by or through the Company’s pine log sawmill operations
on the sawmill site nor will the State take or permit to be taken by any such
authority any other discriminatory action which would deprive the Company of
full enjoyment of the rights granted and intended to be granted under this
Agreement.
Zoning
18. (1) The State
shall ensure after consultation with the local authority having jurisdiction
in respect of the sawmill site that the sawmill site shall be and remain zoned
for use or otherwise protected during the currency of this Agreement so that
the activities of the Company hereunder may be undertaken and carried out
thereon without any interference or interruption by the State or by any State
agency or instrumentality or by any local or other authority of the State on
the ground that such activities are contrary to any zoning by-law regulation
or order.
Surrounding land
(2) (a)
The State shall ensure in respect of the land
shown coloured blue on the said plan marked “A” that the zoning
thereof shall not be changed during the currency of this Agreement to a zoning
that is determined by the Minister for Planning, after consultation with the
Minister and the relevant local authority, to be incompatible with or likely
to restrict or adversely affect the activities of the Company under this
Agreement.
(b) The
Minister may in his discretion extend the provisions of paragraph (a) of this
subclause from time to time to include some or all of the land shown coloured
brown on the said plan marked “A” .
(c) In
relation to the lands to which this subclause applies the State shall have due
regard to the Preston Industrial Park Structure Plan as adopted by the
Minister for Planning from time to time.
Resumption for the purposes of this Agreement
(3) The State may as
and for a public work under the Public Works Act 1902 , resume the whole or
any part or parts of the land referred to in paragraph (a) of subclause (2)
and any land to which the provisions of that paragraph are extended pursuant
to paragraph (b) of subclause (2) where the Minister determines that the same
should be acquired for the purpose of providing land for a buffer to the
sawmill site and notwithstanding any other provisions of that Act the State
may sell lease or otherwise dispose of that land to the Company or other
person and the provisions of subsections (2) to (7) inclusive of section 17
and section 17A of that Act shall not apply to or in respect of that land or
the resumption thereof.
Assignment
19. (1) Subject to the
provisions of this Clause the Company WESFI or Bunnings may at any time assign
mortgage charge sublet or dispose of to any company or persons with the
consent of the Minister the whole or any part of their respective rights
hereunder and of their respective obligations hereunder subject however in the
case of an assignment subletting or disposition to the assignee sublessee or
disponee (as the case may be) executing in favour of the State (unless the
Minister otherwise determines) a deed of covenant in a form to be approved by
the Minister to comply with observe and perform the provisions hereof on the
part of the Company WESFI or Bunnings as the case may require to be complied
with observed or performed in regard to the matter or matters the subject of
such assignment subletting or disposition.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) the
Company WESFI or Bunnings as the case may be shall at all times during the
currency of this Agreement be and remain liable for the due and punctual
performance and observance of all the covenants and agreements on its part
contained in this Agreement PROVIDED THAT the Minister may agree to a release
from such liability where the Minister considers such release will not be
contrary to the interests of the State.
Variation
20. (1) The parties to
this Agreement may from time to time by agreement in writing add to substitute
for cancel or vary all or any of the provisions of this Agreement for the
purpose of more efficiently or satisfactorily implementing or facilitating any
of the objects of this Agreement.
(2) The Minister shall
cause any agreement made pursuant to subclause (1) to be laid on the Table of
each House of Parliament within 12 sitting days next following its execution.
(3) Either House may,
within 12 sitting 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 from and after that last day.
Force majeure
21. This Agreement shall be deemed to be made
subject to any delays in the performance of the obligations under this
Agreement and to the temporary suspension of continuing obligations under this
Agreement that may be caused by or arise from circumstances beyond the power
and control of the party responsible for the performance of those obligations
including without limiting the generality of the foregoing delays or any such
temporary suspension as aforesaid caused by or arising from act of God force
majeure earthquakes floods storms tempest washaways fire (unless caused by the
actual fault or privity of the party responsible for such performance) act of
war act of public enemies riots civil commotions strikes lockouts stoppages
restraint of labour or other similar acts (whether partial or general) acts or
omissions of the Commonwealth shortages of labour or essential materials
reasonable failure to secure contractors delays of contractors or inability
(common in the pine products industry) to sell profitably pine products or
factors due to overall world economic conditions or factors due to action
taken by or on behalf of any government or governmental authority (other than
the State or any authority of the State) or factors that could not reasonably
have been foreseen PROVIDED ALWAYS that the party whose performance of
obligations is affected by any of the said causes shall promptly give notice
to the other party of the event or events and shall use its best endeavours to
minimise the effects of such causes as soon as possible after the occurrence.
Power to extend periods
22. Notwithstanding any provision of this
Agreement the Minister may at the request of the Company from time to time
extend or further extend any period or vary or further vary any date referred
to in this Agreement or in any approved proposal for such period or to such
later date as the Minister thinks fit whether or not the period to be extended
has expired or the date to be varied has passed.
Determination of Agreement
23. (1) In any of the
following events namely if —
(a)
(i) the Company makes default
which the State considers material in the due performance or observance of any
of the covenants or obligations of the Company in this Agreement; or
(ii)
the Company abandons or repudiates this Agreement or its
activities under this Agreement
and such default is
not remedied or such activities resumed within a period of 180 days after
notice is given by the State as provided in subclause (2) or, if the default
or abandonment is referred to arbitration, then within the period mentioned in
subclause (3); or
(b) the
Company goes into liquidation (other than a voluntary liquidation for the
purpose of reconstruction) and unless within 3 months from the date of such
liquidation the interest of the Company is assigned to an assignee approved by
the Minister under Clause 19
the State may by
notice to the Company determine this Agreement.
(2) The notice to be
given by the State to the Company in terms of paragraph (a) of subclause (1)
shall specify the nature of the default or other ground so entitling the State
to exercise such right of determination.
(3) (a)
If the Company contests the alleged default
abandonment or repudiation referred to in paragraph (a) of subclause (1) the
Company shall within 60 days after notice given by the State as provided in
subclause (2) refer the matter in dispute to arbitration.
(b) If
the question is decided against the Company, the Company shall comply with the
arbitration award within a reasonable time to be fixed by that award PROVIDED
THAT if the arbitrator finds that there was a bona fide dispute and that the
Company was not dilatory in pursuing the arbitration, the time for compliance
with the arbitration award shall not be less than 90 days from the date of
such award.
(4) If the default
referred to in paragraph (a) of subclause (1) shall not have been remedied
after receipt of the notice referred to in that subclause within the period
specified in that paragraph or within the time fixed by the arbitration award
as aforesaid the State instead of determining this Agreement as aforesaid
because of such default may itself remedy such default or cause the same to be
remedied (for which purpose the State by agents workmen or otherwise shall
have full power to enter upon lands occupied by the Company and to make use of
all plant machinery equipment and installations thereon) and the actual costs
and expenses incurred by the State in remedying or causing to be remedied such
default shall be a debt payable by the Company to the State on demand.
Effect of cessation or determination of Agreement
24. On the cessation or determination of this
Agreement —
(a)
except as otherwise agreed by the Minister the rights of the Company to in or
under this Agreement shall thereupon cease and determine but without prejudice
to the liability of either of the parties hereto in respect of any antecedent
breach or default under this Agreement or in respect of any indemnity given
under this Agreement;
(b) the
Company shall forthwith pay to the State all moneys which may then have become
payable or accrued due;
(c) save
as aforesaid and as otherwise provided in this Agreement neither of the
parties shall have any claim against the other of them with respect to any
matter or thing in or arising out of this Agreement.
Environmental protection
25. Nothing in this Agreement shall be construed
to exempt the Company from compliance with any requirement in connection with
the protection of the environment arising out of or incidental to its
activities under this Agreement that may be made by the State or by any State
agency or instrumentality or any local or other authority or statutory body of
the State pursuant to any Act from time to time in force.
Indemnity
26. The Company shall indemnify and keep
indemnified the State and its servants agents and contractors in respect of
all actions suits claims demands or costs of third parties arising out of or
in connection with any work carried out by or on behalf of the Company
pursuant to this Agreement or relating to its activities hereunder or arising
out of or in connection with the construction maintenance or use by the
Company or its servants agents contractors or assignees of the Company’s
works or services the subject of this Agreement or the plant apparatus or
equipment installed in connection therewith PROVIDED THAT subject to the
provisions of any other relevant Act such indemnity shall not apply in
circumstances where the State, its servants, agents, or contractors are
negligent in carrying out work for the Company pursuant to this Agreement.
Commonwealth licences and consents
27. (1) The Company
shall from time to time make application to the Commonwealth or to the
Commonwealth constituted agency, authority or instrumentality concerned for
the grant to it of any licence or consent under the laws of the Commonwealth
necessary to enable or permit the Company to enter into this Agreement and to
perform any of its obligations hereunder.
(2) On request by the
Company the State shall make representations to the Commonwealth or to the
Commonwealth constituted agency authority or instrumentality concerned for the
grant to the Company of any licence or consent mentioned in subclause (1).
Subcontracting
28. The State shall ensure that without affecting
the liabilities of the parties under this Agreement either party shall have
the right from time to time to entrust to third parties the carrying out of
any portions of the activities which it is authorised or obliged to carry out
hereunder.
Stamp duty exemption
29. (1) Subject to
subclause (2) the State shall exempt from stamp duty which but for the
operation of this Clause would or might be chargeable on the conveyance or
transfer by WESPINE Lumber Pty. Ltd. ACN 008 854 304 to the Company of the
land comprising the sawmill site and the buildings and fixtures thereon and
any agreement relating thereto PROVIDED THAT such document or documents are
executed before 31 December 1992.
(2) The amount of
exemption of stamp duty under this Clause shall not exceed $225,000 and if the
stamp duty on the said document or documents exceeds that amount the Company
shall pay the duty exceeding $225,000 to the State.
(3) If prior to the
date on which the Bill referred to in Clause 3 to ratify this Agreement is
passed as an Act stamp duty has been assessed and paid on the said document or
documents the State when such Bill is passed as an Act shall on demand refund
the stamp duty paid or pay the said amount of $225,000 as the case may require
to the person who paid the stamp duty.
Arbitration
30. (1) Any dispute or
difference between the parties arising out of or in connection with this
Agreement the construction of this Agreement or as to the rights duties or
liabilities of either party under this Agreement or as to any matter to be
agreed upon between the parties under this Agreement shall in default of
agreement between the parties and in the absence of any provision in this
Agreement to the contrary be referred to and settled by arbitration under the
provisions of the Commercial Arbitration Act 1985 and notwithstanding section
20(1) of that Act each party may be represented before the arbitrator by a
duly qualified legal practitioner or other representative.
(2) Except where
otherwise provided in this Agreement, the provisions of this Clause shall not
apply to any case where the State the Minister or any other Minister in the
Government of the said State is by this Agreement given either expressly or
impliedly a discretionary power.
(3) The arbitrator of
any submission to arbitration under this Agreement is hereby empowered upon
the application of either of the parties to grant in the name of the Minister
any interim extension of any period or variation of any date referred to
herein which having regard to the circumstances may reasonably be required in
order to preserve the rights of that party or of the parties under this
Agreement and an award may in the name of the Minister grant any further
extension or variation for that purpose.
Consultation
31. The Company shall during the currency of this
Agreement consult with and keep the State fully informed on a confidential
basis concerning any action that the Company propose to take with any third
party (including the Commonwealth or any Commonwealth constituted agency
authority instrumentality or other body) which might significantly affect the
overall interest of the State under this Agreement.
Notices
32. Any notice consent or other writing authorised
or required by this Agreement to be given or sent by the State to the Company
shall be deemed to have been duly given or sent if signed by the Minister or
by any senior officer of the Public Service of the said State acting by the
direction of the Minister and forwarded by prepaid post or handed to the
Company at its address hereinbefore set forth or other address in the said
State nominated by the Company to the Minister and by the Company to the State
if signed on its behalf by any person or persons authorised by the Company or
by its solicitors as notified to the State from time to time and forwarded by
prepaid post or handed to the Minister and except in the case of personal
service 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 post.
Term of Agreement
33. Subject to the provisions of subclause (6) of
Clause 6 and Clauses 23 and 24, this Agreement shall expire on the expiration
or sooner determination of the agreement for supply of timber between the
Executive Director and the Company referred to in subclause (1) of Clause 10
PROVIDED HOWEVER that if the said agreement determines prior to the expiration
of the term or an extended term thereof through no fault of the Company the
Minister and the Company may agree that this Agreement (other than Clauses 10,
11 and 12) may continue for the balance of the term or extended term as the
case may be that was current immediately before the determination.
Applicable law
34. This Agreement shall be interpreted according
to the law for the time being in force in the State of Western Australia.
THE SCHEDULE
The upgrade of the pine log sawmill will occur over ten years in a series of
stages or modules, each of which represents a discrete lift in plant capacity
to match the increasing quantities of pine sawlogs becoming available.
First Stage
This will increase annual log input capacity by 80,000 m 3 up to 150,000 m 3
, and will be completed in 1992/93. The First Stage will involve the
installation of: —
1. a new high temperature kiln. This will double
the drying capacity and will operate 24 hours per day on a 7 day week basis;
2. a new debarker, which will be part of a new
scanner/sorter line. The new line will operate on a single shift, and debark
and scan logs in order to determine the input volume for payment purposes; and
3. a new moulder with input and output conveyors
as necessary to allow the upgrading of the surface finish on furniture grade
timber.
The green mill and dry mill will operate on a two shift basis, while the high
temperature kilns will operate continuously.
Second Stage
This will increase annual log input capacity by 50,000 m 3 up to 200,000 m 3
, and will be completed in 1994/95. The Second Stage will involve: —
1. the replacement of existing green mill
equipment as below: —
(a) the
present main twin band saw will be replaced with a quad reducer bandsaw, and
(b) the
present single band resaw and edger will be replaced with optimising edger;
2. the installation of a rotary gang saw;
3. the installation of a bin/sorter with an
optimising trimmer. This will improve the handling of timber and improve
productivity;
4. the upgrading of the dry mill with a new
moulder and more effective timber handling equipment; and
5. the installation of a new high temperature kiln
and reconditioner to meet the increased capacity.
Third Stage
This will increase annual log input capacity by 50,000 m 3 up to 250,000 m 3
, and will be completed in 1996/97. The Third Stage will involve upgrades to
the debarker/sorting line, and a modernising of the original high temperature
kiln.
Fourth Stage
This will increase annual log input capacity by 50,000 m 3 up to 300,000 m 3
, and will be completed in 1998/99. The Fourth Stage will involve: —
1. the installation in the green mill of a curve
canter/gang saw and a two saw edger optimiser;
2. an increase in log handling plant capacity;
3. the establishment of a remanufacturing section;
4. modifications to the high temperature kilns;
and
5. the installation of a new moulder into the dry
mill.
Fifth Stage
This will increase annual log input capacity by 50,000 m 3 up to 350,000 m 3
, and will be completed in 2000/01. The Fifth Stage will involve: —
1. the installation of a fourth high temperature
kiln;
2. the installation of a third reconditioner;
3. the purchase of additional mobile plant; and
4. the extension of the despatch area.
Sixth Stage
This will increase annual log input capacity by 50,000 m 3 up to 400,000 m 3
, and will be completed in 2002/03. The Sixth Stage will involve refinement of
existing mill operations with newly developed equipment where appropriate.
The foregoing is a description of the pine log sawmill upgrade stages
(including plant capacities, components and timing thereof) planned as at the
date of this Agreement. As technologies, timber supplies, equipment
availability, efficiencies, market demands or other circumstances dictate
these stages (including plant capacities, components and the timing thereof)
may vary or alter during the period of the upgrade.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
|
SIGNED by the said |
) |
|
IAN TAYLOR
MINISTER FOR STATE DEVELOPMENT
|
THE COMMON SEAL of |
) | |
Director DENIS CULLITY
Director I. C. R. MACKENZIE
|
THE COMMON SEAL of |
) | |
Director DENIS CULLITY
Director M. WRIGHT
|
THE COMMON SEAL of |
) | |
Director D. W. ZINK
Secretary P. J. JOHNSTON