Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading amended: No. 50 of 1974 s. 4; No. 19 of
2010 s. 4.]
AN AGREEMENT under seal made the 21st day of November One thousand nine
hundred and sixtyseven BETWEEN THE HONOURABLE DAVID BRAND, M.L.A. Premier and
Treasurer of the State of Western Australia acting for and on behalf of the
said State and instrumentalities thereof from time to time (hereinafter
referred to as “the State”) of the one part AND DAMPIER SALT
LIMITED a company incorporated under the provisions of the statutes of Western
Australia and having its registered office in the State of Western Australia
at Perth (hereinafter called “the Company” which term shall
include the successors and assigns of the Company including where the context
so admits the assignees and appointees of the Company under Clause 23 hereof)
of the other part.
WHEREAS the parties hereto desire to enter into this Agreement with the object
of the establishment and carrying on at and in the vicinity of Dampier of a
solar salt industry and such other allied mining and ancillary industries as
may conveniently be carried on in conjunction therewith and to do all acts
matters and things to attain and to facilitate the abovementioned object.
NOW THIS AGREEMENT WITNESSETH and the parties hereto COVENANT AND AGREE with
one another as follows: —
Definitions 3
1. In this Agreement subject to the context
—
“Director of Engineering” means the
Director of Engineering for the time being in the Public Works Department of
the State of Western Australia or the officer for the time being discharging
the duties of that office;
“Land Act” means the Land Act 1933 ;
“Mining Act” means the Mining Act 1904
;
“Minister” means the Minister of the
Crown to whose administration the ratifying Act is for the time being
committed or if there is no such committal the Minister for Industrial
Development;
“month” means calendar month;
“notice” means notice in writing;
“person” or “persons”
includes bodies corporate;
“production site” means any land
leased to and held by the Company pursuant to the provisions of Clause 3
hereof;
“ratifying Act” means the Act referred
to in subclause (1) of Clause 2 hereof;
“shipped” includes removal from the
work sites by ship or any other means;
“stockpile site” means the land for
the time being leased from the State pursuant to subclause 3 of Clause 4 or
held by the Company under any other tenure for the purpose of being used for
stockpiling salt;
“this Agreement” “hereof”
and “hereunder” refer to this Agreement whether in its original
form or as from time to time added to varied or amended;
“ton” means a ton of two thousand two
hundred and forty (2 240) lbs. net dry weight;
“work sites” includes the production
site, stockpile site whether or not leased from the State) and the land
comprised in or the subject of any lease license or easement granted or given
hereunder other than any grant or lease under Clause 13 hereof;
“year” means a year commencing on the
1st day of July;
reference in this Agreement to an Act shall
include the amendments to such 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;
marginal notes shall not affect the interpretation
or the construction of this Agreement 3 .
Ratifying Act 3
2. (1) The State shall
introduce and sponsor a Bill in the Parliament of Western Australia to ratify
this Agreement before the 15th day of December, 1967, or such later day as the
parties hereto may agree upon. If the Bill is not so passed as an Act before
the 31st day of December, 1967 (or such later day as the parties hereto may
agree upon) this Agreement shall be of no force or effect and neither of the
parties hereto shall have any claim against the other of them with respect to
any matter or thing arising out of done performed or omitted to be done or
performed under this Agreement.
(2) If the Bill to
ratify this Agreement is passed as an Act before the 31st day of December,
1967 (or such later day as aforesaid) the following provisions of this clause
shall notwithstanding the provisions of any Act or law thereupon operate and
take effect namely: —
(a) the
State may by Agreement acquire or compulsorily take or resume as for a public
work within the meaning of the Public Works Act 1902 any land or any estate
or interest in land which in the opinion of the State is reasonably required
for the objects of this Agreement and may thereafter dispose or deal with the
same in accordance with or for the purposes of this Agreement apart from the
provisions of that Act or any other Act AND when any land is to be so
compulsorily taken or resumed under the powers conferred by this paragraph the
provisions of subsections (2) to (7) inclusive of section 17 and section 17A
of the Public Works Act 1902 shall not apply to or in respect of the land or
to the taking thereof except that notice of intention to take or resume the
land shall be given in accordance with the provisions of paragraph (b) of
subclause 2 of the said Act;
(b) all
land the subject of any lease hereunder shall for the purposes of the Mining
Act 1904 be deemed to be “Private Land” for the purposes of that
Act.
Production Site 3
3. (1) As soon as
conveniently may be after the coming into operation of the ratifying Act the
State shall on the written application of the Company cause all that land
edged in red in the Plan initialled on behalf of the parties hereto for the
purpose of identification and comprising approximately 28,600 acres or so much
of it as the Company in that application specifies to be leased to the Company
under the provisions of the Mining Act 1904 which shall be deemed to be so
amended varied and modified as to enable the lease to be granted on the
following terms and conditions namely: —
(a) for
a term of twenty-one (21) years commencing from a day to be agreed upon by the
parties hereto;
(b) at a
rental computed at the rate of $4 per one hundred (100) acres per annum;
(c)
subject to the payment by the Company of the royalties hereinafter mentioned
and to the due and punctual performance by the Company of its obligations
hereunder;
(d) that
the Company shall be entitled (provided the right of re-entry contained in the
lease or the renewal thereof (as the case may be) has not been exercised) to
the options to renew the lease for a further term of twenty-one (21) years and
on the expiry thereof to further renew the lease for a further term of
twenty-one (21) years on the same terms and conditions as are contained in
paragraphs (b) (c) (f) and (g) of this subclause;
(e) that
the cost of any survey required by the State be paid by the Company;
(f)
subject to the reservations required in Crown Leases pursuant to the
Petroleum Act 1936 or required for the purpose of preserving rights that have
been or may be granted under the Petroleum (Submerged Lands) Act 1967 ;
(g)
otherwise on such terms and conditions as are reasonably required to give
effect to the provisions and objects of this Agreement; and
(h) that
the State without compensation to the Company may at any time excise from the
lease such area adjacent or near to the existing railway as shall be
sufficient to permit the construction of another railway or road, or both,
across the leased area.
The Company on demand shall pay to the State a sum sufficient to reimburse the
State for the cost of resuming or taking any land required for the production
site.
(2) Until the 31st day
of December, 1977, subject to the provisions of subclauses (4) and (5) of this
Clause the Company shall have options exercisable at any time and from time to
time on notice to the State to have added to the area leased pursuant to
subclause (1) of this clause the whole or such part of the area edged in blue
in the Plan referred to in subclause (1) of this Clause (hereinafter referred
to as “the optioned areas”) as the Company specifies in any such
notice.
(3) If at any time
before the 31st day of December, 1977, the Company gives notice to the State
that it desires an option over the whole or any specified part of the area
edged in green on the plan referred to in subclause (1) of this clause then
providing that it is satisfied that the area nominated by the Company is not
important for the breeding or development of prawns the State shall extend to
the said area the option referred to in subclause (2) of this clause. Any
reference in this Agreement to “the optioned areas” shall include
any such area to which the option is extended pursuant to the provisions of
this subclause.
(4) If the State
should ever require any part of the optioned areas either for its own use or
for any other public purpose or for lease to any other business enterprise
then it may notify the Company accordingly and thereafter in respect of the
area notified the date by which the Company may exercise the options granted
in subclause (2) of this clause will be two years from the date of the
State’s notice if the State’s notice be given within five years of
the date of the production site lease or otherwise one year.
(5) The Company may
not exercise any option given pursuant to this clause in respect of any land
leased by Hamersley Iron Pty. Ltd. without its prior written consent.
(6) The Company may
not exercise any option pursuant to this clause without first giving not less
than 3 months’ notice to the Director of Engineering of its wish to
exercise the option in respect of the land described in such notice and
thereafter the Company shall not exercise an option in respect of so much of
that land as the Director of Engineering informs the Company will in his
opinion be reasonably required for public or private road or rail purposes.
Lease for Shiploading Facilities 3
4. (1) If the Company
notifies the Minister that it wishes to construct a jetty with berthing and
loading facilities in the vicinity of Dampier harbour then the State shall
grant the Company an appropriate lease at a nominal rental of the area
reasonably necessary for the Company’s requirements and a licence
therefor under the provisions of the Jetties Act 1926 and the Company may
thereupon construct such jetty and berthing and loading facilities provided
that the Minister has approved of the specifications therefor and is satisfied
that ships using the same would not be likely to unduly interfere with the
traffic of ships to and from the service wharf and any other wharf constructed
by Hamersley Iron Pty. Ltd. under the Iron Ore (Hamersley Range) Agreement
Act 1963 .
(2) If the Company
makes all necessary arrangements with Hamersley Iron Pty. Ltd. for the
construction of such a jetty and facilities as an extension to the northern
end of the said service wharf then the Company may construct such jetty and
facilities provided that the State has first approved of the specifications
therefor and the State shall issue a license therefor under the provisions of
the Jetties Act 1926 .
Lease for Stockpile Site 3
(3) If the Company
notifies the Minister that it requires a stockpile site in the vicinity of a
jetty used for the loading into ships of salt produced at the production site
and if having regard for the general development of the vicinity with a view
to the reasonable use thereof by others there is available to the State land
sufficient for the Company’s requirements (which are presently estimated
would be 20 acres) then, the State shall grant to the Company a lease thereof
subject to the same term and options of renewal as apply in respect of the
production site lease and at a rental of Five Dollars ($5) per acre per annum.
Flood Protection 3
5. The State shall not unreasonably refuse
applications by the Company for licenses to establish and maintain levees,
channels or other like works on Crown lands adjacent to the production site
for the purpose of diverting the flow of ground waters away from the
Company’s production facilities provided that the Company first obtains
the written approval of any lessee of the lands and provided also that the
Company submits to the Minister and receives his written approval of the plans
and specifications of the works.
Road Rail or Conveyor Transport 3
6. (1) If the Company
notifies the Minister that it requests from the State appropriate rights to
permit the Company to construct and operate between the production site and
the stockpile site or jetty used by the Company for loading salt into ships,
or, between the stockpile site and such jetty a railway, a private roadway or
an apparatus for conveying salt by other mechanical means (including without
limitation pumping in slurry or transferring by conveyor or aerial ropeway)
and if the Company’s notice —
(a)
gives a general description of a proposed route and of the intended railway,
roadway or apparatus, and
(b)
bears the approval of Hamersley Iron Pty. Ltd. insofar as the proposed route
traverses any lands owned or leased by that Company or to which it is entitled
to a lease pursuant to the Iron Ore (Hamersley Range) Agreement Act of 1963;
then subject to subclause 4 of this Clause the State after consulting with
Hamersley Iron Pty. Ltd. and the Company will cause to be surveyed at the cost
of the Company the route which the State considers would be most practicable
and convenient.
(2) As soon as
practicable after the completion of that survey and subject to the payment by
the Company of all incidental costs and expenses including the cost and
expense of any necessary acquisition or resumption of lands over which the
route passes the State shall cause to be granted to the Company a lease
easement or license (whichever is most appropriate in the circumstances) over
the surveyed route (exclusive of any part which is a public road), on such
terms as are reasonably required to give effect to the objects and provisions
of this Agreement and to ensure compliance with the conditions (if any) upon
which Hamersley Iron Pty. Ltd. approved of the grant and thereafter the
Company shall be entitled to construct and use the particular railway (with or
without compliance with the requirements of section 96 of the Public Works
Act 1902 ) roadway or apparatus in accordance with the terms of the said lease
easement or license.
(3) The lease easement
or license will continue for so long as the Company is the lessee of the
production site and will enable the Company to use the surveyed route for the
purposes only of constructing, operating, repairing renewing and, subject to
Clause 19, removing the railway, private roadway or apparatus as the case may
be.
(4) Notwithstanding
anything hereinbefore contained the State shall have no obligations to cause a
survey to be made or grant a lease, easement or license under this Clause
insofar as to do so would be inconsistent with the obligations of the State
and the rights of Hamersley Iron Pty. Ltd. pursuant to the
Iron Ore (Hamersley Range) Agreement Act of 1963, or would unreasonably
prejudice or interfere with the general requirements of the State in regard to
the use of the area for public purposes or industrial development.
By-laws 3
7. At the reasonable request of the Company from
time to time the Minister shall recommend to the Governor in Executive Council
that he make alter or repeal as may be desirable by-laws in respect of the
management or use of any of the Company’s facilities that have been
constructed pursuant to this Agreement.
8. (1) On application
by the Company the State shall cause to be granted to the Company such
machinery and tailings leases and such other leases, licenses, reserves and
tenements under the Mining Act or under the provisions of the Land Act
modified as in subclause (2) of this Clause provided as the Company may
reasonably require and request for its purposes under this Agreement on or
near the production site. Without limiting the generality of the foregoing the
State shall grant to the Company appropriate rights enabling the Company to
take without royalty stone, gravel, sand, or earth, for the purpose of making
improvements to the work sites.
(2) For the purposes
of the preceding subclause the Land Act shall be deemed to be modified by
—
(a) the
substitution for subsection (2) of section 45A of the following subsection:
—
(2)
Upon the Governor signifying approval pursuant to subsection (1)
of this section in respect of any such land the same may subject to this
section be sold or leased;
(b) the
deletion of the proviso to section 116;
(c) the
deletion of section 135;
(d) the
deletion of section 143;
(e) the
inclusion of a power to offer for sale or leasing land within or in the
vicinity of any townsite notwithstanding that the townsite has not been
constituted a townsite under section 10; and
(f) the
inclusion of a power to offer for sale or grant leases or licenses for terms
or periods and on such terms and conditions (including renewal rights) and in
forms consistent with the provisions of this Agreement in lieu of the terms or
periods and the terms and conditions and the forms referred to in the Act.
(3) The provisions of
subclause (2) of this Clause shall not operate so as to prejudice the rights
of the State to determine any lease, license or other right or title in
accordance with the other provisions of this Agreement.
Company’s Obligations 3
9. If the Company gives to the Minister the notice
referred to in subclause 1 of Clause 34 then
(a) the
Company shall not later than the thirty-first day of December, 1968, commence
and thereupon diligently proceed with the construction and establishment on
the work sites of a solar salt plant designed to have the capacity to produce
and to load into ships not less than 475,000 tons of salt per annum, and
estimated with its equipment and staff housing to cost not less than
$5,000,000. The Company shall complete the construction and establishment of
the plant not later than the thirty-first day of December, 1972.
(b) the
Company will be obliged subject to it obtaining satisfactory markets and
finance to progressively increase the capacity of the plant to produce and
load into ships not less than one million tons of salt per annum.
Royalty 3
10. (1) Throughout the
continuance of this Agreement the Company shall pay to the State a royalty on
all salt produced at the work sites and shipped computed as set out hereunder:
—
Rate per ton
On the first 500,000 tons in any year
5 cents
On the second 500,000 tons in any year
6.25 cents
On all tonnages in excess of 1,000,000 tons
in any
year 7.5 cents
Tonnages shall be ascertained at Dampier in such
manner as the parties hereto may from time to time agree upon.
Returns 3
(2) Within twenty-one
days after the quarter days being the last days of March, June, September and
December in each year commencing with the quarter day next following the first
shipment of salt produced at the work sites the Company shall furnish to the
Minister for Mines a return showing the quantity of all salt the subject of
royalty hereunder shipped during the quarter ending on the respective quarter
day and shall not later than one month after the date on which such return is
due pay to the State the royalty in respect of all salt shipped during that
quarter.
Inspection of Records 3
(3) Throughout the
continuance of this Agreement the Company shall permit a nominee of the
Minister for Mines to inspect at all reasonable times the books of account and
records of the Company relative to the production of salt on the work sites
and any sale or shipment thereof and to take copies or extracts therefrom so
far as is necessary for the purpose of determining the royalty payable in
respect of salt shipped hereunder. The Company will take reasonable steps to
satisfy the State either by the certificate of a competent independent party
acceptable to the State or otherwise to the reasonable satisfaction of the
Minister for Mines as to all relevant weights and will give due regard to any
objection or representation made by the Minister for Mines or his nominee as
to any particular weight of salt which may affect the amount of royalty
payable hereunder.
Other Charges 3
11. The State may make or cause to be made against
vessels using any jetty erected by the Company the usual charges from time to
time prevailing in respect of services rendered to vessels by the State or any
agency instrumentality or other authority of the State and may charge vessels
using any such jetty such conservancy and pilotage charge or dues as are
payable from time to time pursuant to the provisions of any Act.
Escalation 3
12. (1)
Notwithstanding anything herein contained it is hereby agreed by and between
the parties hereto in order to provide for the equitable performance of this
contract that in the event of the price of salt (as hereinafter defined) on
the 14th, 21st, 28th, 35th, 42nd, 49th or 56th anniversaries of the
commencement date (being the day of the commencement of the term of the lease
of the production site) exceeding the price of salt on the 7th anniversary of
the commencement date, then the percentage by which the price of salt on the
relevant anniversary exceeds the price of salt on the 7th anniversary of the
commencement date shall be calculated and the several amounts and payable by
the Company to the State as —
(a)
rental under paragraph (b) of subclause (1) of Clause 3;
(b)
rental under subclause (3) of Clause 4;
(c)
royalty under subclause (1) of Clause 10;
shall be increased by the percentage so calculated and such increased amounts
in respect of those items shall be payable by the Company to the State during
the seven (7) years next following the relevant anniversary.
(2) For the purposes
of this Clause the price of salt on the 7th anniversary of the commencement
date and on each of the aforesaid anniversaries means the average price of
salt shipped from the work sites during the previous year payable by the
purchaser or purchasers thereof to the Company less all export duties taxes
and fees payable to the Commonwealth on the export of salt and the costs and
expenses properly incurred and payable by the Company in respect of that sale
from the time it is shipped to the time it is delivered to and accepted by the
purchaser or purchasers including —
(a)
ocean freight;
(b)
marine insurance;
(c) port
and handling charges at the port of discharge:
(d) all
costs properly incurred in delivering the salt from the port of discharge to
the purchaser as evidenced by relevant invoices;
(e) all
weighing, sampling, analysis, inspection and representation costs;
(f) all
shipping agency charges after shipment; and
(g) all
import taxes imposed or levied by the country or the port of discharge.
(3) Throughout the
continuance of this Agreement the Company shall use its best endeavours to
obtain for the salt produced at the production site the best price possible
having regard to market conditions from time to time prevailing.
Housing 3
13. (1) Subject to the
provisions of this Clause the state will on the written application made from
time to time by the Company for land for housing or staff amenity purposes
grant to the Company in such locality as land is available therefor a lease of
such vacant lots as the Company requests on the following terms and conditions
namely: —
(a) for
a term of five years commencing from a day to be agreed upon by the parties
hereto;
(b) at a
rental sufficient to reimburse a reasonable proportion of the costs (if any)
incurred by the State in the preparation of the land for subdivision;
(c) that
the lessee will within eighteen months of the commencement of the term of each
lease granted for housing purposes complete on the land the subject of that
lease the erection of a building for the accommodation for a family or single
persons at a cost of not less than $15,000;
(d) that
on the expiration of the term of the lease and subject to the due and punctual
observance and performance by the lessee of all the covenants agreements and
conditions on the lessee’s part therein contained, on the request of the
lessee the State will grant to the lessee an estate in fee simple in the land
the subject of the lease at a price not exceeding two hundred dollars ($200)
plus Crown Grant and survey fees;
(e) that
the Company will not sell transfer assign sub-let or mortgage charge or
encumber any lease without the consent of the Minister first had and obtained
PROVIDED THAT the consent of the Minister shall not be required to the
transfer assignment or sub-lease to an employee of the Company of a lot leased
for housing purposes nor to any mortgage of a lot in respect of which the
Company has complied with paragraph (c) of this Clause in relation to that
lot;
(f) that
the Company will pay to the relevant local authority (when requested by the
local authority so to do) such amount as the local authority reasonably
requires at the time of the grant of the lease to enable it to supply or make
available the usual services;
(g)
otherwise on such terms and conditions as are reasonably required to give
effect to the provisions and objects of this Agreement.
(2) The State shall
not be required to lease to the Company pursuant to this Clause more than one
hundred lots. The request for each lot shall be made by the Company at least
six months before the Company requires the lease of that lot to be granted to
it. In the event of the Minister consenting under the provisions of paragraph
(e) of subclause (1) of this Clause to a transfer assignment or subletting of
the lot the State shall not be required to lease another lot in lieu of the
lot so transferred assigned or sublet.
Road Transport 3
14. (1) Subject to the
provisions of subclause (2) of this Clause it shall be lawful for the Company
to use for the carriage of salt on any public road between the production site
and the stockpile site prime movers each with two trailers the combined length
of which shall not exceed eighty-five (85) feet notwithstanding any provision
in any Act to the contrary.
(2) The right
conferred by subclause (1) of this Clause shall operate until the tenth
anniversary of the day of the first shipment of salt and thereafter until
determined by not less than three years’ notice in writing by the State.
Such notice may be given to expire on the tenth anniversary of the day of the
first shipment of salt or at any time thereafter.
Sea Water 3
15. The Company may without charge draw, take and
use sea water for all or any one or more of its operations in respect of the
mining extraction and production of salt on the work sites and the Company may
store at such place within the work sites as may be convenient or discharge at
or below high water mark at such points near to the work sites as are approved
by the State residual brines resulting from those operations. If requested by
the Company the State shall grant to the Company any necessary easement or
licence for these purposes over Crown lands upon such terms and conditions as
shall be reasonable having regard to the requirements of the Company under
this Clause and the overall development and use by others of those Crown
lands. Subject to the Company’s compliance with the Mining Act and all
other relevant statutes and regulations for the time being in force the
Company if and when it becomes economical so to do shall have the right to the
exclusion of any other person to mine and recover any other minerals,
substances or chemicals in the said residual brines.
Rights of Ingress and Egress 3
16. The State shall from time to time on the
written application of the Company grant to the Company a license or licenses
over Crown lands to permit the Company by its servants agents contractors
invitees and customers the right of ingress to and egress from all or any one
or more part or parts of the work sites on such terms and conditions as shall
be reasonable having regard to the requirements of the Company in respect of
the construction maintenance operation and inspection of the improvements from
time to time constructed or installed on the work sites and to the overall
development and use by others of those Crown lands.
Export License 3
17. If at any time or times under Commonwealth law
an export license is required by the Company for the export of salt then on
written request by the Company the State shall make representations to the
Government of the Commonwealth of Australia for the grant to the Company of a
license or licenses under Commonwealth law for the export of salt in such
quantities and at such rate or rates is shall be reasonable having regard to
the tonnage of salt being produced by the Company at such time or times as a
license is so required and to all contracts made or likely to be made by the
Company for the export or supply of salt from the work sites.
Limitation of Liability 3
18. Where the Company from time to time constructs
a levee or other works on the production site for or incidental to the
production of salt and thereafter a third party makes improvements to lands or
becomes the owner of improvements so made on lands adjacent to the production
site and subsequent to those improvements being made the Company removes
(either wholly or partly) or fails to maintain or to repair that levee or
other works and in consequence thereof the third party suffers sustains or
incurs damage to those improvements or any part thereof then notwithstanding
any Act or any rule of law or equity to the contrary, the Company shall not be
liable for those damages to any person or persons whatsoever.
Default 3
19. The parties hereto covenant and agree with
each other as follows: —
(a) that
in any of the following events namely if the Company fails in any year after
the 30th June, 1977 to ship at least 350,000 tons of salt and furthermore the
average of the tonnage shipped in that year and in the previous three years is
less than 350,000 tons a year or if the Company makes default in the due and
punctual performance of any of the covenants agreements or obligations to the
State herein or in any lease sub-lease easement license or other right or
title granted under this Agreement on its part to be performed or observed and
shall fail to remedy that default within reasonable time after notice
specifying the default is given by the State to the Company and also to any
Mortgagee approved pursuant to Clause 23 hereof if it has a registered office
in Perth (or if the alleged default is contested by the Company and promptly,
submitted to arbitration within a reasonable time fixed by the arbitration
award where the question is decided against the Company the arbitrator finding
that there was a bona fide dispute and that the Company had not been dilatory
in pursuing the arbitration) or if the Company abandons or repudiates its
operations under this Agreement or if the Company goes into liquidation (other
than a voluntary liquidation for the purpose of reconstruction) then and in
any of such events the State may by notice given to the Company determine this
Agreement and the rights of the Company hereunder and under any lease license
easement or right granted or demised hereunder or pursuant hereto PROVIDED
HOWEVER that if the Company fails to remedy any default after notice is given
to the Company specifying the default 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 its 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 costs and expenses incurred by the State remedying or causing to be
remedied such default shall be a debt payable by the Company to the State on
demand made by the State;
Effect of determination of Agreement 3
(b) that
on the cessation or determination of this Agreement:
(i)
except as otherwise agreed by the Minister the rights of
the Company to in or under this Agreement and the rights of the Company or any
assignee of the Company or any mortgagee to in or under any lease license
easement or right granted or demised hereunder or pursuant hereto 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 AND the Company shall without further consideration but
otherwise at the request and cost of the State transfer or surrender to the
State or the Crown all land the subject of any lease license easement or right
granted or demised hereunder or pursuant hereto AND the Company hereby
irrevocably constitutes and appoints the Minister or such person as he may
from time to time nominate the true and lawful attorney of the Company to
execute the transfer or surrenders aforesaid;
(ii)
the Company shall forthwith pay to the State all moneys
which may then have become payable or accrued due;
(iii)
save as aforesaid and as provided in paragraph (c) of
this Clause neither of the parties hereto shall have any claim against the
other with respect to any matter or thing in or arising out of this Agreement;
(c) that
on the cessation or determination of any lease license easement or right
granted or demised hereunder or pursuant hereto by the State to the Company or
(except as otherwise agreed by the Minister) to an assignee of the Company
under Clause 23 hereof the improvements and things erected on the relevant
land other than machinery equipment and removable buildings shall remain or
become the absolute property of the Crown without compensation and freed and
discharged from all mortgages and encumbrances and the Company will do such
things and execute such documents (including surrenders) as the State may
reasonably require to give effect to this provision AND the Company hereby
irrevocably constitutes and appoints the Minister or such person as he may
from time to time nominate the true and lawful attorney of the Company to do
those things and to execute those documents (including surrenders). In the
event of the Company immediately prior to such expiration or determination or
subsequent thereto deciding to remove its machinery equipment and removable
buildings or any of them from the work sites the Company shall not do so
without first notifying the State in writing of its decision and thereby
granting to the State the right or option exercisable within three (3) months
thereafter to purchase at valuation in situ the said machinery equipment and
removable buildings or any of them. Such valuation will be mutually agreed or
in default of agreement shall be made by such competent valuer as the parties
hereto may appoint or failing agreement as to such appointment then by two
competent valuers one to be appointed by each party or by an umpire appointed
by such valuers should they fail to agree;
(d) the
provisions of this Clause shall not apply to any land which at or prior to the
date of cessation or termination of this Agreement had been the subject of a
lease granted to the Company pursuant to Clause 13 and which at that date is
held for an estate in fee simple by any person, or is held for an estate in
leasehold by any person other than the Company, or is held for an estate in
leasehold by the Company and in respect of which the Company has effected some
improvements and has not failed to observe any obligation on its part under
the lease.
20. Any hospital or educational facilities
including staff accommodation which appear to be reasonably necessary to meet
the needs of employees of the Company or contractors engaged by the Company
and their families shall be supplied by the State subject to the Company
bearing and paying the capital cost thereof and if the State and the Company
are unable to agree upon the necessity for such facilities or the standard or
cost thereof then the matter shall be determined by arbitration.
Salt for use in Australia 3
21. The Company acknowledges the desire of the
State to have available a constant and reliable source of supply of salt for
use in Australia. To attain this object the Company, subject to the fulfilment
of its overseas contracts will use its best endeavours to have such quantities
of salt available at all times during the currency of this Agreement for sale
for use in Australia as will meet reasonable demands therefor made on the
Company from time to time at a price which is competitive in the Australian
market provided that such price is not less than that which the Company is
receiving or able to receive for similar quantities of salt sold on similar
terms and conditions for use outside Australia.
Restrictions on resumption 3
22. The State further covenants with the Company
that the State —
(a)
having regard to the particular nature of the industry proposed to be
established by the Company under this Agreement and subject to the performance
by the Company of its obligations hereunder shall not resume or suffer or
permit to be resumed by any State instrumentality or by any local or other
authority of the said State any portion of the work sites the resumption of
which would unreasonably impede the Company’s activities nor shall the
State create grant or permit or suffer to be created or granted by an
instrumentality or authority of the said State as aforesaid any road right of
way or easement of any nature or kind whatsoever over or in respect of the
work sites which may unduly prejudice or interfere with the Company’s
operations hereunder without the consent in writing of the Company first
having been obtained which consent shall not be arbitrarily or unreasonably
withheld; nothing in this paragraph shall prevent the State exercising any
power given it pursuant to paragraph (h) of subclause (1) of Clause 3 of this
Agreement;
No discriminatory taxes or charges 3
(b)
except as provided in this Agreement shall not impose or 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 operations of the
Company in the conduct of the Company’s business hereunder nor shall the
State take or permit to be taken by any such agency instrumentality or
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;
Upgrading of Roads 3
(c)
shall at the request and cost of the Company (except where and to the extent
that the Commissioner of Main Roads agrees to bear the whole or part of the
cost involved) widen upgrade or realign any public road over which the State
has control subject to the prior approval of the said Commissioner to the
proposed work;
Rating 3
(d)
shall ensure that notwithstanding the provisions of any Act or anything done
or purported to be done under any Act the valuation of all lands (whether of a
freehold or leasehold nature) the subject of this Agreement (except as to any
part upon which a permanent residence shall be erected or which is occupied in
connection therewith) shall for rating purposes be deemed to be on the
unimproved value thereof and no such lands shall be subject to any
discriminatory rate;
Labour Conditions 3
(e)
shall ensure that during the currency of this Agreement and subject to
compliance with its obligations hereunder the Company shall not be required to
comply with the labour conditions imposed by or under any Act in regard to any
lease of any land within the work sites.
Assignment 3
23. (1) Subject to the
provisions of this Clause and of paragraph (e) of subclause (1) of Clause 13
hereof the Company may at any time with the prior written consent of the
Minister —
(a)
assign mortgage charge sublet or dispose of to any company or person the whole
or any part of the rights of the Company hereunder (including its rights to or
as the holder of any lease license easement grant or other title) and of the
obligations of the Company hereunder,
and
(b)
appoint any other company or person to exercise all or any of the powers
functions and authorities which are or may be conferred on the Company
hereunder;
subject however to the assignee or the appointee executing in favour of the
State 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 to
be complied with observed or performed in regard to the matter or matters so
assigned or the subject of the appointment.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) of
this Clause the Company unless the Minister otherwise agrees 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 herein and in any lease license easement grant or other
title the subject of an assignment under the said subclause (1).
Arbitration 3
24. Any dispute or difference between the parties
arising out of or in connection with this Agreement or any agreed amendment or
variation thereof or agreed addition thereto or as to the construction of this
Agreement or any such amendment variation or addition as to the rights duties
or liabilities of either party hereunder 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
Arbitration Act 1895 .
Variation 3
25. The parties hereto may from time to time by
mutual agreement in writing add to, vary or cancel all or any of the
provisions of the Agreement or any lease license easement or right granted or
demised hereunder or pursuant hereto for the purpose of more efficiently or
satisfactorily implementing or facilitating any of the objects of this
Agreement.
26. During the period of this Agreement the State
shall not authorise the construction of any works which could reasonably be
considered as having the possible effect of stopping the from of sea water
around the northern or southern ends of West Intercourse Island to or from the
production site or so diminishing such flow as to result in the drawing of sea
water by the Company from the western side of the production site being either
impracticable or only practicable with the expenditure by the Company of
additional money for capital or in operating costs.
Force Majeure 3
27. This agreement shall be deemed to be made
subject to any delays in the performance of obligations under this Agreement
and to the temporary suspension of continuing obligations hereunder and to
relief from forfeiture for failure to produce the annual and average tonnages
referred to in paragraph (a) of Clause 19 which may be occasioned by or arise
from circumstances beyond the power and control of the party responsible for
the performance of such obligations including delays or any such temporary
suspension or failure as aforesaid caused by or arising from Act of God force
majeure floods storms tempests washaways abnormal tides and waves fire (unless
caused by the actual fault or privity of the Company) act of war act of public
enemies riots civil commotions strikes lockouts stoppages restraint of labour
or other similar acts (whether partial or general) shortages of labour or
essential materials reasonable failure to secure contractors delays of
contractors and inability (common in the salt export industry) to profitably
sell salt or factors due to overall world economic conditions or factors which
could not reasonably have been foreseen PROVIDED ALWAYS that the party whose
performance of obligations is affected by any of the said causes shall
minimise the effect of the said causes as soon as possible after their
occurrence.
Continuance of Agreement 3
28. (1) If the Company
is desirous of a further continuance of this Agreement (whether in the same or
any varied or modified form) and if the parties hereto have not at least
fifteen (15) months prior to the expiration of the second term of renewal of
the lease of the production site (hereinafter referred to as “the
expiration of the second renewal”) agreed upon the terms and conditions
in respect of a further agreement for the production at and shipment of salt
from the work sites then the State shall at least fourteen (14) months prior
to the expiration of the second renewal make the Company such written offer
(hereinafter called “the offer”) of the terms and conditions of
the further agreement as it deems reasonable and unless the Company has
—
(i)
within the month next following the receipt of the offer
accepted it (either in the form so offered or as modified or varied by
negotiation between the parties hereto), or
(ii)
within the fourteen days next following the receipt of
the offer referred that offer or the part or parts thereof which the Company
considers unreasonable to arbitration as provided in subclause (2) of this
Clause;
the State may at the expiration of that month proceed as in manner set out in
subclause 3 of this Clause.
(2) Within the
fourteen (14) days next following the receipt of the offer the Company may
elect by notice to the State to refer to arbitration any dispute concerning
the reasonableness of the State’s offer or any part or parts thereof and
will within fourteen (14) days next following such election refer to
arbitration that dispute. Unless the Company within the fourteen (14) days
next following the receipt by it of the award on arbitration by notice to the
State accepts the offer as valid or modified by the award on arbitration the
State may proceed as in manner set out in subclause (3) of this Clause.
(3) If the Company has
not accepted the offer or the offer as varied or modified by the award on
arbitration subject to and in accordance with the provisions set out in
subclause (1) or (2) respectively of this clause then the State may enter into
an agreement for the production and shipment of salt from the sites previously
leased to the Company with any other person on terms and conditions more
favourable on the whole than the offer made by the State or in the event of
the offer having been submitted to arbitration the offer as varied or modified
by the award on arbitration provided the State has first offered to the
Company the right of first refusal of such terms and conditions and such offer
is not accepted by the Company within a reasonable time.
Indemnity 3
29. The Company will indemnify and keep
indemnified the State and its servants agents (including all Ministers of the
Crown in right of the State of Western Australia and contractors in respect of
all actions suits claims demands or costs 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 solar salt plant, jetty,
berthing or loading facilities, roads, railways or other works or services the
subject of this Agreement or any plant apparatus or equipment associated
therewith.
Compliance With Laws 3
30. Subject to this Agreement the Company in the
construction operation maintenance and use of any work installation plant
machinery equipment service or facility provided or controlled by it shall
comply with and observe the laws for the time being in force in the State of
Western Australia.
Notices 3
31. Any notice consent request or other writing
authorised or required by this Agreement to be given shall be deemed to have
been duly given by the State or the Minister if signed by the Minister or by
any senior officer of the Civil Service of the said State acting by the
direction of the Minister and forwarded by pre-paid registered post to the
Company or an approved mortgagee or assignee as the case may require at its
registered office for the time being in the said State and by the Company if
signed on its behalf by any person or persons for the time being appointed by
it for the purposes of this Clause and forwarded by pre-paid registered post
to the Minister at his office in Perth AND any such notice consent or writing
shall be deemed to have been duly given on the day on which it would be
delivered in the ordinary course of post.
Relevant Law 3
32. (1) This Agreement
shall be interpreted according to the law for the time being in force in the
said State.
(2) All payments made
or to be made under this Agreement shall be made in the State of Western
Australia in Australian currency unless otherwise agreed. All sums mentioned
herein are in Australian currency.
Expiration of Agreement 3
33. This Agreement shall expire on the expiration
or sooner determination of the lease of the production site (including the
respective renewals thereof) but without prejudice to the right of action of
either party hereto in respect of any breach of the covenants agreements and
conditions herein contained.
Conditions 3
34. (1) This Agreement
is conditional upon the Company at any time prior to the 31st day of December,
1968, giving notice to the Minister that —
(a) the
Company has entered into or intends to enter into contracts or arrangements
satisfactory to the Company for the sale by the Company of salt; and
(b) the
Company has made or is about to make arrangements satisfactory to the Company
for financing the works referred to in Clause 9 hereof and that the Company
proposes to proceed with such works.
Determination by Company 3
(2) Notwithstanding
anything herein contained the Company may at any time give notice to the State
that matters have arisen which make the completion or continuance of the works
impracticable or uneconomic and desires to determine this Agreement whereupon
this Agreement will then cease and determine and the State may enforce all or
any one or more of its rights remedies or powers set out in Clause 19 hereof.
Right of Surrender 3
(3) The Company shall
have the right at any time and from time to time to surrender to the Crown in
right of the State any reasonably substantial part of the work sites which is
no longer required by the Company.
Power to extend periods 3
35. Notwithstanding any provision hereof the
Minister may at the request of the Company from time to time extend any period
or alter any date referred to in this Agreement for such period or to such
other date as the Minister thinks fit and the extended period or other date
when advised to the Company by notice from the Minister shall be deemed for
all purposes hereof substituted for the period or date so extended or altered.
Provided that where any such extension of period
or alteration of date would have the effect either directly or indirectly of
extending the term of any lease license temporary reserve or other concession
granted under the Mining Act the consent of the Minister shall not operate
until the Company has also obtained the like consent of the Minister for
Mines.
36. The State shall exempt from any stamp duty
which but for the operation of this clause would or might be chargeable on
—
(a) this
Agreement;
(b) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Company or any permitted assignee of the Company any lease
license easement or right granted or demised hereunder or pursuant hereto:
PROVIDED THAT this clause shall not apply to any instrument or other document
executed or made more than seven years from the date hereof.
IN WITNESS whereof this Agreement has been
executed by or on behalf of the parties hereto the day and year first
hereinbefore mentioned.
|
SIGNED SEALED AND DELIVERED by THE HONOURABLE DAVID BRAND, M.L.A. in the
presence of — |
|
[L.S.] |
|
C. W. COURT, | | |
|
THE COMMON SEAL OF DAMPIER SALT LIMITED WAS HEREUNTO AFFIXED BY AUTHORITY OF
THE DIRECTORS, in the presence of — |
|
[L.S.] |
|
S. CHRISTIE, NEIL R. CAFFIN, | | |
