[s. 2]
[Heading amended: No. 19 of 2010 s. 4.]
AN AGREEMENT MADE and executed this day of
One
thousand nine hundred and seventy-two
BETWEEN THE HONOURABLE JOHN TREZISE
TONKIN, MLA, THE 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 RHODES RIDGE
MINING CO. LTD. a company incorporated in the State of Delaware in the United
States of America and having its executive offices situate at the 55th Floor,
200 Park Avenue New York in the United States of America and registered in the
State of Western Australia and having its registered office there situate at
the 2nd Floor, 7 Havelock Street West Perth, HANCOCK PROSPECTING PTY. LTD. a
company incorporated in the State of Western Australia and having its
registered office situate at the 14th Floor Lombard House, 251 Adelaide
Terrace Perth in that State and WRIGHT PROSPECTING PTY. LTD. a company
incorporated in the State of Western Australia and having its registered
office situate at the 14th Floor Lombard House, 251 Adelaide Terrace Perth
aforesaid (hereinafter called “the Joint Venturers” which
expression shall where the context so admits or requires extend to and include
the Joint Venturers jointly and each of them severally their and each of their
successors and permitted assigns and appointees) of the second part and TEXAS
GULF INC. a company incorporated in the State of Texas in the United States of
America and having its executive offices situated at the 55th Floor, 200 Park
Avenue, New York aforesaid and having an address for the service of notices in
the State of Western Australia at the 2nd Floor, 7 Havelock Street, West Perth
aforesaid (hereinafter called “the Guarantor” which expression
shall where the context so admits or requires extend to and include the
Guarantor and also its successors and assigns) of the third part being the
Agreement referred to in Section 2 of the enabling Act.
WHEREAS:
(a) For
some time prior to the execution hereof exploration and investigations have
been carried out as to the possibility of the mining areas hereinafter defined
containing large deposits of iron ore and as a result of such exploration and
investigation the parties hereto believe that in the mining areas there are
substantial deposits of iron ore having an average grade of 60% Fe or better
and certain lesser deposits of limited size of higher grade that may after
further study be found to be useable as blending ore in conjunction with lower
grade iron ores which may exist within the mining areas or elsewhere.
(b)
Research has been and is still being conducted by the Joint Venturers in both
Australia and the United States of America with the object of establishing
satisfactory ore crushing screening upgrading and pelletising procedures that
could be used in the treatment of iron ore from the said deposits.
(c) The
Joint Venturers have also prior to the execution hereof caused preliminary
engineering studies to be made as to the construction of a railway between the
mining areas and a port site in or in the vicinity of the area between Dampier
and Cape Lambert and the development of such a port site.
(d) The
said Rhodes Ridge Mining Co. Ltd. is a wholly owned subsidiary of the
Guarantor which as the parent company has agreed to guarantee to the State
performance by the said Rhodes Ridge Mining Co. Ltd. of its obligations
hereunder upon and subject to the terms and conditions of the guarantee
hereinafter contained.
THEREFORE IT IS MUTUALLY AGREED between the State and the Joint Venturers as
follows: —
PART I
Preliminary
CLAUSE I
SECTION 1.01 DEFINITIONS In this
Agreement unless the context otherwise admits or requires each of the
following words has the meaning hereby respectively assigned to that word
namely —
“apply”, “approve”,
“approval”, “consent”, “certify”,
“direct”, “notify”, “require” or
“request” means apply, approve, approval, consent, certify,
direct, notify, require or request in writing, as the case may be;
“assignee” means an associated company
or a third party in whose favour the Joint Venturers jointly have or any of
them has executed an assignment subletting or other disposition pursuant to
paragraph (a) of Section 25.04 and includes an associated company or third
party in whose favour an appointment has been made pursuant to paragraph (b)
of Section 25.04.
“associated company” means —
(a) any
company notified in writing by the Joint Venturers or any of them to the
Minister which has a paid-up capital of not less than two million dollars
($2,000,000) and is incorporated in the United Kingdom, the United States of
America, or the Commonwealth of Australia and which —
(i)
is promoted by the Joint Venturers or any of them for all
or any of the purposes of this Agreement and in which the Joint Venturers or
any of them hold not less than twenty percentum (20%) of the issued ordinary
share capital or —
(ii)
is related within the meaning of the term
“subsidiary” in section (6) of the Companies Act 1961 to any
company in which the Joint Venturers or any of them hold not less than twenty
percentum (20%) of the issued ordinary share capital and —
(b) any
other company which is nominated by the Joint Venturers or any of them and of
which the Minister approves as an associated company for the purposes of this
Agreement.
“commencement date” means the date on
which this Agreement is executed by all parties hereto;
“Commonwealth” means the Commonwealth
of Australia and includes the Government thereof for the time being;
“direct shipping ore” means iron ore
which has an average pure iron content of not less than sixty percentum (60%)
which will not pass through a one half (½) inch mesh screen and which is
sold without concentration or other beneficiation other than crushing and
screening;
“enabling Act” means the Act of
Parliament of the said State entitled “ Iron Ore (Rhodes Ridge)
Agreement Authorization Act 1972 ”;
“export date” means the date on which
the ship carrying the first shipment of iron ore products shipped by the Joint
Venturers under this Agreement (other than iron ore shipped solely for testing
purposes) sails from the port at which it has been loaded;
“financial year” means a year
commencing on and including the 1st day of July;
“fine ore” means iron ore which has an
average pure iron content of not less than sixty per cent (60%) which will
pass through a one half (½) inch mesh screen and which is sold without
concentration or other beneficiation other than crushing and screening;
“fines” means iron ore (not being
direct shipping ore or fine ore) which will pass through a one half (½)
inch mesh screen;
“f.o.b. revenue” means the sum of
money remaining after deducting from the amount of the gross purchase price
(net of any amounts which the purchaser is entitled to deduct from the gross
purchase price by way of penalty or otherwise for any defect in quality
quantity or delay in delivery) payable to the Joint Venturers or an associated
company by a purchaser thereof in respect of a specified quantity of iron ore
products sold by the Joint Venturers or the associated company to the
purchaser for shipment beyond the Commonwealth the following items of cost
namely — all export duties and export taxes payable on the iron ore
products sold and shipped and all other costs and charges properly incurred
and payable in respect of the iron ore products by the Joint Venturers or the
associated company to the State or a third party between the point in time
when the iron ore products are placed on ship at the Joint Venturers’
wharf and the point in time when the iron ore products are delivered to and
accepted by the purchaser there being included in such other costs and charges
—
(1) ocean freight;
(2) marine insurance;
(3) port and handling
charges at port of discharge;
(4) costs of delivery
from port of discharge to a smelter nominated by the purchaser;
(5) weighing,
sampling, assaying, inspection and representation costs incurred on discharge
or delivery;
(6) shipping agency
charges;
(7) import taxes
payable to the country of the port of discharge;
(8) demurrage incurred
after loading and at port of discharge;
(9) such other costs
and charges as the parties (having regard inter alia to such matters as the
parties to and the bona fide nature of the transaction as the result of which
the cost or charge was incurred) shall mutually agree to include or failing
agreement as fixed by arbitration as hereinafter provided.
For the purpose of
this definition —
(a) the
Minister may from time to time in respect of any of the costs or charges
mentioned in items (1) to (8) (inclusive) above incurred in relation to any
particular shipment or sale notify the Joint Venturers in writing that he does
not regard the cost or charge as being properly incurred and in that event
should the Joint Venturers disagree with the Minister’s decision they
may refer the matter in question to arbitration as hereinafter provided but
unless and until it is otherwise determined such cost or charge shall be
treated as being not properly incurred and if otherwise determined the State
will refund to the Joint Venturers any royalty paid by the Joint Venturers on
the basis that the charge was not properly incurred;
(b)
unless and until the Minister determines that the same is a cost or charge
coming within the category of those mentioned in item (9) above a cost or
charge mentioned in any of the said items (1) to (8) (inclusive) which is
directly or indirectly imposed upon or incurred by the Joint Venturers or an
associated company pursuant to an arrangement entered into between the Joint
Venturers and the State shall be treated as being not properly incurred;
(c) in
the event of the parties failing to agree to the inclusion of a cost or charge
which might be included pursuant to item (9) and referring the same to
arbitration then unless and until it is otherwise determined such cost or
charge shall be excluded but if it is determined that the same should be
included the State will refund to the Joint Venturers any royalty paid by
reason of the same having been excluded.
“iron ore” means iron ore from the
mineral lease;
“iron ore concentrates” means products
(whether in pellet or other form) resulting from secondary processing but does
not include metallised agglomerates;
“iron ore pellets” means iron ore in
pellet or other form produced by pelletisation or a more advanced reduction or
other treatment or process from iron ore mined on the mineral lease;
“iron ore products” is an inclusive
term covering iron ore of all grades obtained from the mineral lease and also
all products produced by secondary processing any part of such iron ore;
“Joint Venturers’ wharf” means
any wharf utilised by the Joint Venturers for the purpose of shipping iron ore
products produced as the result of the operation of this Agreement and whether
the same be a wharf constructed by or on behalf of the Joint Venturers a wharf
used by the Joint Venturers in conjunction with another or others (including
the State) or any temporary structure approved by the Minister as the Joint
Venturers’ wharf for the time being for the purposes of this Agreement;
“Land Act” means the Land Act 1933 ;
“locally used ore” means iron ore used
by the Joint Venturers or an associated company within the Commonwealth for
secondary processing or in an integrated iron and steel industry or any plant
for the production of steel;
“metallised agglomerates” means
products resulting from the reduction of iron ore or iron ore concentrates by
any method whatsoever and having an iron content of not less than eighty-five
percent (85%);
“mineral lease” means the mineral
lease referred to in Section 9.01 and includes any renewal thereof and
according to the requirements of the context shall describe the area of land
demised as well as the instrument by which it is demised;
“mine townsite” means a townsite or
townsites established by the Joint Venturers on or near the mining areas
pursuant to this Agreement and may include any existing townsite approved by
the Minister;
“Mining Act” means the Mining Act 1904
;
“mining areas” means the land
described in the “particulars of mining areas” appended to Section
3.02;
“Minister” means the Minister of the
Government of the said State for the time being responsible for the
administration of this Agreement;
“Minister for Mines” means the
Minister in the Government of the said State for the time being responsible
for the administration of the Mining Act and includes any other Minister in
the said Government for the time being temporarily undertaking such
responsibility;
“Minister for Works” means the
Minister for Works in the Government of the said State or such other member of
the Executive Council as the Governor may appoint to administer the
Rights in Water and Irrigation Act 1914 ;
“month” means calendar month;
“mortgagee” means an associated
company or a third party in whose favour the Joint Venturers jointly have or
any of them severally has executed a mortgage or charge pursuant to paragraph
(a) of Section 25.04;
“notice” means notice in writing;
“ore” means iron ore;
“parties” means the parties to this
Agreement of the first and second parts;
“person” or “persons”
includes bodies corporate;
“the port” means and is primarily used
to designate the new port to be established in implementation of proposals
made by the Joint Venturers pursuant to Clause V whether the same be
established by the Joint Venturers exclusively or by them in conjunction with
another or others (including the State) and should no such new port be
established the term means any existing port developed or used by the Joint
Venturers for the purposes of this Agreement by arrangement with another or
others (including the State) and in either case the term extends to and
includes as well as the land upon which the Joint Venturers’ wharf is
erected also the adjacent land serving the Joint Venturers’ wharf and
the adjacent land on which it is proposed to locate or on which could be
located or in fact is located secondary and tertiary processing plants
crushing grinding and screening facilities stockpiling yards electric power
generating plant petroleum storage and other ancillary facilities;
“port townsite” means the townsite to
be expanded or developed near the port;
“said State” means the State of
Western Australia;
“secondary processing” means the
concentration or other beneficiation of iron ore otherwise than by crushing or
screening and includes thermal electrostatic magnetic and gravity processing
and the production of pellets iron ore concentrates metallised agglomerates
and sponge iron;
“tertiary processing” means the
production of pig iron by blast furnace smelting and the production of steel
by any means whatsoever;
“this Agreement” “hereof”
and “hereunder” includes this Agreement 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;
“Transfer of Land Act” means the
Transfer of Land Act 1893 ;
“wharf” includes any jetty structure;
“Year 1” means the year next following
the export date and “year” followed immediately by any other
numeral has a corresponding meaning.
SECTION 1.02 CAPTIONS
(a) The
captions of the Parts into which this Agreement is divided and the Schedule to
this Agreement and each plan or other document referred to in this Agreement
which is marked by the parties for identification are part of this Agreement.
(b) The
Table of Clauses included in this Agreement and the captions of the Clauses
and any headings to sections are for convenience only and do not constitute
part of this Agreement and the same are not to be deemed to define or limit
any of the terms of this Agreement nor to be construed as giving any
indication as to how such terms are to be construed or interpreted.
SECTION 1.03 CONSTRUCTION
(a)
References to money are to be construed as referring to Australian currency.
(b)
References to an Act are to be construed as referring to the amendments to
such Act for the time being in force and also to any Act passed in
substitution therefor or in lieu thereof and also to the regulations for the
time being in force thereunder.
(c)
Where any provision of this Agreement constitutes an agreement or undertaking
by one of the parties to make a payment or to perform some act or to carry out
some obligation or to assume some responsibility or liability or to grant some
right concession or advantage that party by its execution hereof will be
deemed to have covenanted and agreed with the other party accordingly.
(d) By
virtue of Section 3 of the enabling Act this Agreement operates and takes
effect as from the commencement date according to the tenor of the provisions
thereof notwithstanding the provisions of any other relevant existing Act of
the said Parliament and of any rule or law to the contrary.
(e) The
State and the Minister will be deemed to have power and authority to exercise
all such powers and discretions and to do all such other acts matters and
things as may be required or be necessary to be exercised or done in order to
carry out and give effect to the provisions of this Agreement and in
particular the State and the Minister will be deemed to have power —
(i)
to close or vary the alignments or boundaries of any
public road and —
(ii)
to resume as and for a public work any land or other
estate right or interest in land.
SECTION 1.04 EXISTING ACTS For the
purposes of this Agreement (and for those purposes only) the provisions of any
relevant existing Act will be deemed to be modified or amended to the extent
necessary to enable this Agreement to be given full force and effect and in
particular without limiting the generality of the foregoing the Acts mentioned
in Sections 1.05 to 1.08 inclusive shall be deemed to be amended to the extent
indicated therein.
SECTION 1.05 MINING ACT The Mining Act
will be deemed amended as if Sections 277 and 282 thereof were both deleted
therefrom.
SECTION 1.06 LAND ACT The Land Act will
be deemed amended as if —
(a)
subsections (1) and (2) of Section 45A thereof were deleted therefrom and the
following substituted therefor —
45A (1)
Notwithstanding anything contained in the last preceding Sections of this Part
(Part IV) of this Act the Governor may dispense with the requirements thereof
as to the sale of town or country lands and may approve of any lot being
offered for sale or for leasing in the manner prescribed in subsection (2) of
this Section.
(2) Upon the Governor signifying approval pursuant
to subsection (1) of this Section in respect of any such lands the Minister
may offer the said lands or any part thereof for sale or may grant leases or
licences thereof for such price or prices and for such period or periods
(including rights of renewal) and upon and subject to such other terms and
conditions and in such form as the Minister may think fit provided that the
price period or other terms and conditions shall not be inconsistent with the
provisions of any agreement executed by the Premier of the State of Western
Australia acting for and on behalf of the said State pursuant to the authority
in that behalf given by an
Act of the Parliament of the said State. ;
(b) the
proviso to Section 116 thereof was deleted therefrom;
(c)
Sections 135 and 143 thereof were deleted therefrom.
SECTION 1.07 PUBLIC WORKS ACT The Public
Works Act will be deemed amended as if subsections (2) to (7) inclusive of
Section 17 thereof and also the whole of Section 17A thereof were all deleted
therefrom.
SECTION 1.08 FLOATING
CHARGES Section 82 of the Mining Act and Section 81D
of the Transfer of Land Act will be deemed not to apply to a mortgage or
charge in the form commonly known as a floating charge given by the Joint
Venturers or an associated company pursuant to Section 25.04 or to a transfer
or assignment in exercise of a power of sale contained in any such mortgage or
charge.
SECTION 1.09 PARTITION No lease sub-lease
licence or other title or right granted or assigned under or in pursuance of
this Agreement shall be subject to or capable of partition and accordingly the
provisions of Part XIV of the Property Law Act 1969 , will be deemed not to
apply thereto.
PART II
Feasibility Studies and Preparation of Proposals
CLAUSE II
SECTION 2.01 INVESTIGATIONS AND
STUDIES Beginning as soon as practicable after the commencement
date the Joint Venturers will diligently and expeditiously explore and
investigate the mining areas hereinafter mentioned (which operations are
herein referred to as “the investigations”) with the view to
preparing and submitting to the State as soon as practicable feasibility
studies (herein referred to as “the studies”) as to the various
aspects of the development of the mining areas for the mining of iron ore and
the treatment and processing thereof and also with a view to making to the
State detailed proposals as to such development as hereinafter provided.
SECTION 2.02 STATE ASSISTANCE The State
will afford the Joint Venturers all such reasonable assistance as they may
require during the course of the investigations and the studies to enable them
to complete the same and to that end will furnish such advice and commentaries
as the Joint Venturers may require and as may be reasonably practicable for
the State so to do.
CLAUSE III
SECTION 3.01 ENTRY ON CROWN LANDS To the
extent reasonably necessary for the purpose of the investigations and studies
and subject to the adequate protection of the environment (including flora and
fauna) the State will permit the Joint Venturers to enter into and upon Crown
land other than the mining areas (including the lands the subject of a
pastoral lease) and to survey possible sites for their proposed operations
under this Agreement.
SECTION 3.02 RIGHT OF OCCUPANCY As soon
as practicable after the commencement date the State will cause the Minister
for Mines in exercise of the power in that behalf conferred by Section 276 of
the Mining Act to temporarily reserve from occupation the land more
particularly described in the “particulars of mining areas”
appended to this Section and with the approval of the Governor to authorise
the Joint Venturers to temporarily occupy such land (the right of the Joint
Venturers so to do pursuant to such authority being hereinafter referred to as
“the right of occupancy”) for the period and upon and subject to
the terms and conditions hereinafter mentioned.
PARTICULARS OF MINING AREAS
ALL those pieces of land (containing in the aggregate an area of 322 square
miles or thereabouts) being those portions of the land the subject of
Temporary Reserves 4192H, 4193H, 4266H, 4267H, 4737H, 4881H, 4882H, 4883H, and
4884H, as are delineated and coloured green in the plan marked ‘A’
signed by or on behalf of the parties hereto for the purpose of
identification.
SECTION 3.03 SURRENDER OF EXISTING
RIGHTS The right of occupancy will be granted subject to the
condition precedent that the Joint Venturers acquire by transfer all existing
rights of occupancy in to or in respect of the mining areas and surrender the
same to the Crown.
SECTION 3.04 SURVEY
(a) The
Location boundaries and other dimensions of the mining areas other than
Temporary Reserves 4193H, 4881H and 4884H have been ascertained and fixed by
and the area thereof calculated following upon a survey of such land made on
behalf of the Joint Venturers at their cost and expense prior to the
commencement date which said survey has been approved by the State for the
purposes of this Agreement and used in the preparation of the plan marked
‘A’ mentioned in Section 3.02.
(b) The
location boundaries and other dimensions of the land comprised in Temporary
Reserves 4193H, 4881H and 4884H will be ascertained and fixed by and the area
thereof calculated following upon a survey of such land made by or on behalf
of the State at the cost and expense of the Joint Venturers as soon as
practicable after the commencement date.
SECTION 3.05 OCCUPANCY PERIOD Subject as
provided in Section 3.06 the period of the right of occupancy will be a fixed
period expiring twelve months after the commencement date or on the date of
the granting of the mineral lease pursuant to Section 9.01 (notwithstanding
that the instrument of such lease may not be issued) whichever is the earlier
date.
SECTION 3.06 OCCUPANCY RENEWAL If at any
time within one (1) month prior to the expiration of the period of the right
of occupancy (whether the period be that mentioned in Section 3.05 or any
renewed period granted pursuant to this Section) the Joint Venturers make a
written request to the State that the said period be renewed the State will
cause the Minister for Mines to renew the same for such period (not exceeding
twelve months on any one occasion) and upon and subject to the same terms and
conditions but (unless the State shall otherwise agree) the period of the
right of occupancy will not be renewed beyond the fifth anniversary of the
commencement date and will expire at noon on that date.
SECTION 3.07 CONSIDERATION FOR
OCCUPANCY The Joint Venturers will on the commencement date and
thereafter on the first and every subsequent anniversary of the commencement
date during the continuance of the period of the right of occupancy pay to the
State as consideration for the right of occupancy in advance an annual fee of
$1,000 for each Temporary Reserve comprised in the mining areas and also
$26.00 for each square mile or part of a square mile of the mining areas for
the time being subject to the right of occupancy.
SECTION 3.08 OTHER CONDITIONS OF
OCCUPANCY Subject as otherwise provided in this Clause (Clause
III) the right of occupancy may be granted or renewed upon and subject to such
terms and conditions not inconsistent with the provisions for the time being
of the Mining Act as the parties mutually agree and of which the Governor may
approve.
SECTION 3.09 DETERMINATION OF
OCCUPANCY The right of occupancy will forthwith cease and
determine on the happening of any of the following events namely —
(a) upon
the Joint Venturers by notice to the Minister relinquishing the same; or
(b) upon
the initial or any renewed period thereof expiring by effluxion of time; or
(c) upon
the State granting to the Joint Venturers a mineral lease pursuant to section
9.01 (notwithstanding that the instrument of such lease may not be issued); or
(d) upon
the Joint Venturers making default in the due and punctual payment of any
annual fee payable pursuant to Section 3.07 and failing to comply with a
notice from the State specifying such default and calling upon the Joint
Venturers to remedy the same within a period of fourteen (14) days of the
service of such notice, or
(e) upon
the Joint Venturers making default in the due performance or observance of any
of the other of the terms and conditions upon and subject to which the right
of occupancy was granted and failing to comply with a notice from the State
specifying such default and calling upon the Joint Venturers to remedy the
same within a period of fourteen (14) days of the service of such notice.
CLAUSE IV
SECTION 4.01 JOINT VENTURERS
INVESTIGATIONS In the course of the investigations and the
studies the Joint Venturers will insofar as they have not already done so to
the reasonable satisfaction of the Minister commence forthwith and carry out
at their expense (with the assistance of experienced consultants where
appropriate) the following —
(a) a
thorough geological and (as necessary) geophysical investigation and proving
of the iron ore deposits in the mining areas and the testing and sampling of
such deposits;
(b) a
reconnaissance of sites of the operations proposed pursuant to this Agreement
together with the preparation of suitable maps and drawings;
(c) an
engineering investigation of the route for a railway from the mining areas to
the port or (in consultation with the owner) to connect with any existing or
proposed railway operated or to be operated by any other party under an
agreement with the State;
(d) a
general survey and preliminary engineering investigation of possible port
sites in the general Cape Lambert-Dampier area including Legendre Island;
(e) a
study of the technical and economic feasibility of the mining transporting
handling and shipping of iron ore from the mining areas;
(f) the
planning and development of a suitable mine townsite and a suitable port
townsite in consultation with the State having due regard as to the possible
or probable use of the same by others as well as the Joint Venturers;
(g) the
investigation, in areas indicated by the Minister of suitable water supplies
for mining industrial and mine townsite purposes;
(h)
metallurgical and market research;
(i)
a thorough assessment of the environmental impact likely
to result from operations pursuant to this Agreement together with details of
the measures proposed for the treatment of such effects;
SECTION 4.02 PORT INVESTIGATIONS After
consultation with the Minister concerning the result of the investigations and
surveys mentioned in Section 4.01(d) the Joint Venturers will employ or retain
experienced consultant engineers acceptable to the State to investigate report
upon and make recommendations as to the best overall development of a port at
such location as appears to be the location most suitable as the subject of
the investigations report and recommendations contemplated by this Section
4.02. The Joint Venturers will require such engineers when making such report
and recommendations to have full regard for the general development of the
port with a view to its reasonable use by others and the Joint Venturers will
furnish to the State copies of such reports and recommendations. When
submitting to the Minister pursuant to Section 5.02 detailed proposals in
regard to the matters mentioned in this Section 4.02 the Joint Venturers will
so far as reasonably practicable ensure that the detailed proposals —
(a) do
not materially depart from the reports and recommendations of such engineers;
(b)
provide for the best overall development of the port so far as the same
relates to the Joint Venturers’ activities;
(c)
disclose any conditions of user; and
(d)
where alternative proposals are submitted the Joint Venturers’
preferences in regard thereto.
SECTION 4.03 REPORTS TO STATE The Joint
Venturers will collaborate with and keep the State fully informed as to the
progress and results of the investigations and studies and in particular as to
the carrying out of the operations as to the matters mentioned in Sections
4.01 and 4.02. For that purpose the Joint Venturers will at least once in
every quarter submit to the State a comprehensive report of such progress and
results and if and when the Minister may reasonably require furnish the
Minister with copies of all relevant reports made by consultants and of all
findings and conclusions made by the Joint Venturers as the result of the
consultants reports and consequent upon the progress made in the
investigations and studies and in the said operations but the Joint Venturers
will not be required to disclose to the State any information findings
conclusions or reports concerning or touching the economic feasibility of any
of the matters mentioned in paragraph (e) of Section 4.01 which are of a
financial nature and which the Joint Venturers consider are private and
confidential to themselves and if revealed could prejudice them or otherwise
react to their detriment in their dealings with third parties.
SECTION 4.04 STATE INVESTIGATIONS If the
State concurrently carries out its own investigations and reconnaissances in
regard to all or any of the matters mentioned in Sections 4.01 and 4.02 the
Joint Venturers will co-operate with the State therein and so far as it is
reasonably practicable so to do will consult with the representatives or
officers of the State and make full disclosures and give expressions of
opinion regarding the matters mentioned in Sections 4.01 and 4.02.
CLAUSE V
SECTION 5.01 INITIAL PORT PROPOSAL As
soon as practicable after the completion of the investigations mentioned in
Section 4.02 the Joint Venturers will submit to the Minister proposals as to
the location and an outline in sufficient detail to enable the Minister to
satisfy himself as to the suitability technical feasibility and practicability
of the proposed development of the port (having regard to the matters
mentioned in paragraph (a) of Section 5.02) and the Minister will within two
(2) months after such submission notify the Joint Venturers whether he
approves or otherwise of such proposals or the Minister may within that time
himself suggest an alternative proposal. If the Minister does not approve of
the Joint Venturers’ proposals or if he himself submits an alternative
proposal the Minister will disclose his reasons for so doing by specifying the
same in the said notice and afford the Joint Venturers ample opportunity to
consult with him and themselves to submit further or alternative proposals and
to consider any alternative proposal suggested by the Minister. When
considering any of the Joint Venturers’ proposals and in making his own
proposal the Minister will have regard to the possible future requirements of
others (including the State) and no preference or other priority will be given
to the Joint Venturers or their proposals by reason only that the proposals
were submitted for consideration first before proposals from any other party.
SECTION 5.02 DETAILED PROPOSALS Subject
to the proposals or any alternative proposals as to the location and
development of the port being approved the Joint Venturers will on or before
the fifth anniversary of the commencement date or on or before such later date
as the Minister may approve submit to the Minister detailed proposals (herein
referred to as “the said proposals”) which shall include (where
practicable) appropriate plans and (where reasonably required by the Minister)
appropriate specifications in respect of the mining of iron ore on and the
future development of the mining areas (or so much thereof as is comprised in
the mineral lease mentioned in Section 9.01) and detailed particulars as to
the measures proposed to be taken for the protection of the environment should
the same be approved or be deemed to be approved and also (to the fullest
extent reasonably practicable) detailed particulars as to the location area
layout design number materials to be used in and time programme for the
commencement and completion of the construction or the provision (as the case
may be) of each of the following matters —
(a) (to
the extent not already covered by the proposals mentioned in Section 5.01) the
port and port development including the dredging thereof and the disposal and
depositing of the spoil the provision of navigational aids the Joint
Venturers’ wharf the berth and swinging basin proposed in connection
with the Joint Venturers’ use thereof and the port installations
facilities and services to be available all of which are to be of such nature
and extent as to be capable of and suitable for adaption to permit use of the
Joint Venturers’ wharf by ships having a capacity to carry 60,000 tons
of iron ore.
(b) the
railway from the mining areas to the port or to connect with an existing
railway and its proposed operation including joint user conditions (if any)
fencing (if any) crossing places and grade separation or other forms of
acceptable protection at intersections with public roads;
(c) the
development of the mine townsite and the port townsite including services and
facilities in relation thereto;
(d)
housing;
(e)
water supply;
(f)
roads;
(g)
generation transmission and distribution of electricity;
(h)
airfields;
(i)
the leases licenses or other tenures of land (if any)
required from the State;
(j)
disposal of waste materials;
(k)
drainage;
(l) dust
control measures; and
(m) any
other works, services or facilities proposed or required by the Joint
Venturers.
SECTION 5.03 SUBJECT OF
PROPOSALS Initially the said proposals may with the approval of
the Minister and if so required by the State will be submitted as to the
matter or matters mentioned in one or more of paragraphs (a) to (m) of section
5.02 and in that event submission of the said proposals as to the matter or
matters mentioned in the other or others of the said paragraphs will be
deferred but in any event will be finally submitted within the time mentioned
in Section 5.02.
SECTION 5.04 USE OF EXISTING
INFRASTRUCTURE The said proposals relating to any of the
matters mentioned in Section 5.02 may with the approval of the Minister and
that of any third parties concerned instead of providing for the construction
of new facilities of the kind therein mentioned provide for the use by the
Joint Venturers upon reasonable terms and conditions of any existing
facilities of such kind.
SECTION 5.05 MINISTER TO BE SATISFIED At
the time when the Joint Venturers submit the said proposals they will be
required to show to the reasonable satisfaction of the Minister that the
investigations and the studies in so far as the same are relevant to the said
proposals have been completed. In order to be so satisfied the Minister may
require the Joint Venturers to produce to him acceptable evidence of —
(a)
marketing arrangements demonstrating the Joint Venturers’ ability to
sell iron ore and iron ore products in accordance with the said proposals;
(b) the
availability of finance necessary for the fulfilment of the operations to
which the said proposals refer; and
(c) the
readiness of the Joint Venturers to embark upon and proceed to carry out the
operations referred to in the said proposals.
SECTION 5.06 PORT LOCATION The
Minister’s determination in respect of the Joint Venturers’
proposals relating to the location of the port and in respect of proposals
relating to the overall development of the port and the location of the port
townsite will be conclusive final and binding on all parties and the same
shall not be referable to arbitration.
CLAUSE VI
SECTION 6.01 CONSIDERATION OF
PROPOSALS On receipt of the said proposals the Minister
may —
(a)
defer consideration of or decision upon the same until such time as the Joint
Venturers submit a further proposal or proposals in respect of some one or
more of the other matters mentioned in one or more of the paragraphs (a) to
(m) of Section 5.02 not covered by the said proposals; or
(b)
approve of the said proposals either wholly or in part without qualification
or reservation; or
(c)
require as a condition precedent to the giving of his approval to the said
proposals that the Joint Venturers make such alteration thereto or comply with
such conditions in respect thereto as he (having regard to the circumstances
including the overall development of and the use by others as well as the
Joint Venturers of all or any of the facilities proposed to be provided)
thinks reasonable and in such case will disclose to the Joint Venturers the
reasons for requiring such conditions precedent.
SECTION 6.02 MINISTER’S
DECISION The Minister will within two (2) months after
receipt of the said proposals give notice to the Joint Venturers of his
decision in respect to the same and will disclose to the Joint Venturers by
such notice the reasons for such decision.
SECTION 6.03 CONSULTATION WITH
MINISTER If the decision of the Minister is as mentioned in
either of paragraphs (a) or (c) of Section 6.01 he will afford the Joint
Venturers full opportunity to consult with him and should they so desire to
submit new proposals either generally or in respect of some particular matter.
SECTION 6.04 MINISTER’S DECISION SUBJECT TO
ARBITRATION If the decision of the Minister is as mentioned in
paragraph (c) of Section 6.01 and the Joint Venturers consider that such
decision or any condition precedent imposed is technically financially
economically or otherwise unreasonable the Joint Venturers may within two (2)
months after receipt of the notice mentioned in Section 6.02 elect to refer to
arbitration in the manner hereinafter provided the question of the
reasonableness of such decision or of the condition precedent.
SECTION 6.05 REASONABLENESS OF MINISTER’S
DECISION In addition to any other matter to which the
arbitrator is required (whether pursuant to the provisions of Section 32.01 or
otherwise) to have regard in considering the reasonableness of any decision of
the Minister made pursuant to Section 6.01 the Minister will not be regarded
to have acted unreasonably if he shall defer his decision on a proposal made
in relation to the matters mentioned in paragraph (i) of Section 5.02 until
the said proposals in relation to the matters mentioned in the other
paragraphs of Section 5.02 have become or deemed to have become approved
proposals.
SECTION 6.06 ARBITRATING AWARD An award
made on an arbitration pursuant to Section 6.04 shall have force and effect as
follows —
(a) if
by the award it is adjudged that the condition precedent is reasonable then
the decision of the Minister in respect to the said proposals shall stand; or
(b) if
by the award it is adjudged that the condition precedent is unreasonable then
the said proposals shall be deemed to have been approved by the Minister in
the form in which the same were submitted.
SECTION 6.07 APPROVED PROPOSALS
DEFINED Proposals which are approved by the Minister as
provided in paragraph (b) of Section 6.01 and those (if any) which are deemed
to have been approved as provided in paragraph (b) of Section 6.06 are
hereinafter referred to as “approved proposals”.
CLAUSE VII
SECTION 7.01 ADDITIONAL PROPOSALS If the
Joint Venturers at any time during the continuance of this Agreement desire to
expand their activities beyond those specified in any approved proposals they
will give notice of such desire to the Minister and within two (2) months
thereafter will 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 (m) of Section 5.02 as the Minister may require. The
provisions of Clauses V and VI shall mutatis mutandis apply to detailed
proposals submitted pursuant to this Section save that the provisions of
Section 5.05 shall not apply.
SECTION 7.02 BASIS OF SUBMISSION In the
event of the Joint Venturers submitting detailed proposals pursuant to Section
7.01 or if as a consequence of their submitting detailed proposals pursuant to
Section 23.01 the Minister requires further detailed proposals to be submitted
on any of the said matters mentioned in paragraphs (a) to (m) of Section 5.02
(which said detailed proposals and said further detailed proposals are herein
referred to as “additional proposals”) then subject as provided in
Section 7.03 the additional proposals will be submitted on the basis that
should the same become approved proposals the provisions of Clause XVIII will
apply mutatis mutandis in respect of any increase in the extent of the
services and facilities mentioned in Section 18.01 and also in respect of the
provision of the additional services or facilities (whether of the kind
mentioned in Section 18.01 or not) occasioned in either case by the additional
proposals becoming approved proposals.
SECTION 7.03 DETERMINATION OF JOINT VENTURERS’
OBLIGATIONS The extent of the Joint Venturers’
responsibilities under Clause XVIII to provide the capital cost of and to
maintain any increased or additional services and facilities of the kind
mentioned in Section 18.01 occasioned by the additional proposals or any of
them becoming approved proposals will be determined by the Minister after
discussion and negotiation on such matters with the Joint Venturers and in
making such determination the Minister will have regard ( inter alia ) to the
current and anticipated composition of any mining or other town affected and
the extent to which the State’s current capital resources will permit of
its undertaking its responsibilities ordinarily to provide the capital cost of
and maintain such services and facilities.
CLAUSE VIII
SECTION 8.01 DETERMINATION BEFORE
IMPLEMENTATION In any of the following events
namely —
(a) if
the right of occupancy ceases and determines pursuant to Section 3.09; or
(b) if
the Joint Venturers give to the State notice of their intention to abandon or
discontinue the investigations and the studies; or
(c) if
the Joint Venturers fail within the time (or any extension thereof) limited by
Section 5.02 to submit any proposals and fail to satisfy the Minister that
they are then diligently and actively conducting the necessary investigations
and studies incidental to the preparation of the proposals; or
(d) if
the effect of an award made upon an arbitration under Section 6.04 is that the
decision of the Minister is to stand and the Joint Venturers fail within three
(3) months after the making of the award to give notice that they accept the
same and propose forthwith to implement the proposals in respect of which the
award was made —
the State may give to the Joint Venturers one month’s notice determining
this Agreement and on the expiration of such notice this Agreement will cease
and determine and neither party will have any claim against the other in
respect of any matter or thing arising out of or done or performed or omitted
to be done or performed under this Agreement except as provided under Clause
XXVI.
PART III
Implementation of Proposals
CLAUSE IX
SECTION 9.01 MINERAL LEASE As soon as
practicable after the said proposals become approved proposals the State will
in accordance with the relevant approved proposal on the application of the
Joint Venturers cause to be granted to them a mineral lease in the form set
out in the Schedule to this Agreement for the mining of iron ore from such
part or parts of the land comprised in the mining areas as is or are then
subject to the right of occupancy and referred to in the said proposals. The
following provisions will apply to the mineral lease —
(a) the
total area of the land the subject thereof will not exceed three hundred (300)
square miles;
(b) the
boundaries of the land comprising such area will be so located as to form
either a single parallelogram or a number of parallelograms;
(c) the
rent reserved thereby will be that fixed in Section 9.04;
(d) the
Joint Venturers will therein covenant to pay to the State in addition to the
said rent the royalties fixed in Section 21.01;
(e)
subject to the due payment by the Joint Venturers of the said rent and
royalties and to the due performance and observance by them of their other
obligations thereunder and of their obligations under this Agreement the term
thereof will be twenty one (21) years as from the date of the granting thereof
but the Joint Venturers will during the continuance of this Agreement have the
right to take successive renewals of the said term each for a period of twenty
one (21) years upon the same terms and conditions subject to the sooner
determination of the said term upon the cessation or determination of this
Agreement. The said right will be exercisable by the Joint Venturers making
written application for any such renewal not later than one month before the
expiration of the current term of the mineral lease;
(f)
subject to paragraphs (a) to (e) inclusive of this Section and as in this
Agreement otherwise provided all relevant provisions of the Mining Act and the
Regulations thereunder will apply but subject to their discharging and
carrying out their obligations under this Part (Part III) of this Agreement
the Joint Venturers will not be required to comply with the labour conditions
imposed by the said Act in respect of mineral leases.
SECTION 9.02 SURVEY The State will cause
to be made any survey necessary to define the area and boundaries of the land
to be comprised in the mineral lease and the Joint Venturers will upon demand
made on or after the completion of such survey pay to the State the cost
thereof. The Minister for Mines may decline to issue the instrument for the
mineral lease until such survey is completed.
SECTION 9.03 SURRENDER OF
PORTIONS Notwithstanding the provisions of paragraph (e)
of Section 9.01 the Joint Venturers may from time to time (with abatement of
future rent in respect to the area surrendered but without any abatement of
rent already paid or any rent which has become due and has been paid in
advance) surrender to the State all or any portion or portions (of reasonable
size and shape) of the mineral lease.
SECTION 9.04 RENTAL The rent payable by
the Joint Venturers under the mineral lease will be an annual rent (payable
annually in advance) of a sum equal to seventy cents ($0.70) per acre per
annum calculated on the total area of land for the time being the subject of
the mineral lease. The said rent will run as from the date of the granting of
the mineral lease on which date the first payment of rent will become due and
payable notwithstanding that the survey mentioned in Section 9.02 may not have
been commenced or completed or the instrument for the mineral lease may not
have been issued.
SECTION 9.05 OTHER LEASES The State will
to such extent as may be reasonably practicable on the application of the
Joint Venturers from time to time grant to the Joint Venturers or assist them
in obtaining the grant of leases and other rights for limestone, dolomite,
granite, diorite, silica sand and other minerals and substances reasonably
required by the Joint Venturers for the purposes of this Agreement.
SECTION 9.06 EXCLUSIVE MINING RIGHTS The
State will not during the continuance of this Agreement register any claim or
grant any lease or other mining tenement under the Mining Act or otherwise
whereby any person other than the Joint Venturers might under the laws
relating to mining or otherwise obtain any rights to mine or take natural
substances (other than petroleum as defined by the Petroleum Act 1967 ) from
within the mineral lease unless the Minister reasonably determines that the
registration or grant is not likely unduly to prejudice or interfere with the
Joint Venturers’ operations hereunder.
SECTION 9.07 ACCESS OVER MINERAL
LEASE The Joint Venturers will at all times permit the State
and third parties (with or without stock vehicles and rolling stock) to have
access to and to pass over the mineral lease (by separate route, road or
railway) so long as that access and passage does not unduly prejudice or
interfere with the operations of the Joint Venturers under this Agreement.
SECTION 9.08 LAND RESUMPTION The State
will as and for a public work under the Public Works Act 1902 resume any land
required for the purposes of this Agreement and will if it considers it
expedient so to do sell lease or otherwise dispose of the land to the Joint
Venturers.
CLAUSE X
SECTION 10.01 LEASES FOR OTHER
PURPOSES The State will in compliance on its part with the
approved proposals as and when required by the Joint Venturers so to do cause
to be granted to the Joint Venturers such other leases of Crown lands as the
parties may consider reasonable and necessary for all or any of the following
purposes namely town sites, private roads, railway lines and sidings, tailing
areas, over-burden areas, water pipelines, pumping installations and
reservoirs, airport, power transmission lines and stockpile areas and for any
other of the purposes of this Agreement. Such leases will be granted for such
periods at such rentals and upon and subject to such other terms and
conditions as shall be reasonable having regard to the obligations of the
Joint Venturers under this Agreement.
SECTION 10.02 SPECIAL LEASES Pursuant to
Section 10.01 the State will in particular when required by the Joint
Venturers so to do cause to be granted to it —
(a) a
special lease (or special leases) of Crown land at the mine townsite for
residential, professional, business, commercial and industrial purposes and
for the purpose of providing communal facilities. Such special lease will be
granted upon all usual terms and conditions and in particular will contain the
following provisions —
(i)
the term thereof (unless sooner determined) will expire
on the same date as that on which the term of the mineral lease or any renewal
thereof terminates or is determined;
(ii)
the rental payable thereunder will be one peppercorn per
annum payable if and when demanded;
(iii)
the Joint Venturers will have the right during the
continuance thereof to purchase (for a price comparable with that charged by
the State for other Crown land released for freehold sale in similar towns in
the general region of the Joint Venturers’ operations) the fee simple of
any parcel or lot being part of the land thereby demised on which the Joint
Venturers have erected buildings or structures (not being dwellings) costing
at least ten thousand dollars ($10,000) or dwellings costing at least seven
thousand dollars ($7,000);
(b) a
special lease (or special leases) of Crown land at or near the port for
industrial stockpiling, ship loading, power generation and other similar
purposes. Such special lease will be granted upon all usual terms and
conditions and in particular will contain the following provisions —
(i)
the term thereof will (unless sooner determined) expire
on the same date as that on which the term of the mineral lease or any renewal
thereof terminates or is determined;
(ii)
the rental payable thereunder will be an annual rental of
two dollars ($2.00) per acre payable in advance;
(c)
notwithstanding the provisions contained in the mineral lease or any other
lease granted pursuant to either of paragraphs (a) or (b) of this Section
10.02 whereby the rent payable thereunder and the times at which such rent is
so payable are fixed the Joint Venturers will during the continuance of this
Agreement from and after the commencement of Year 16 pay to the State as and
by way of an additional annual rent to that payable under such one or more of
such leases as the Joint Venturers may from time to time at their option in a
notice to the State designate a sum equal to 25 cents per ton on all iron ore
products in respect of which a royalty is payable under this Agreement in the
ensuing financial year. The said additional rent shall be paid within three
(3) months of the shipment sale use or production as the case may be of the
said iron or products being included in a return to the State under Section
21.03.
CLAUSE XI
SECTION 11.01 NO RESUMPTION Subject to
the performance by the Joint Venturers of their obligations hereunder the
State will not resume or suffer or permit to be resumed by any instrumentality
or by any local or other authority of the said State any portion of the land
the subject of any special lease mentioned in Section 10.02 the resumption of
which would unduly prejudice or interfere with the Joint Venturers’
works and activities conducted or reasonably likely or contemplated to be
conducted thereon or any portion of the land the subject of the mineral lease
whereon any of the Joint Venturers’ works are situate or are reasonably
likely or contemplated to be situate the resumption of which would unduly
prejudice or interfere with the Joint Venturers’ mining or other
activities including mining or other activities conducted or reasonably likely
or contemplated to be conducted thereon nor will the State create or grant or
permit or suffer to be created or granted by an instrumentality or authority
of the said State any road right of way or easement of any nature or kind
whatsoever over or in respect of the land comprised in the said leases whereon
any of the Joint Venturers’ works are situate or are reasonably likely
or contemplated to be situate without the consent in writing of the Joint
Venturers first had and obtained which consent the Joint Venturers agree they
will not arbitrarily or unreasonably withhold.
SECTION 11.02 NO DISCRIMINATORY
RATES Except to the extent provided by this Agreement the State
will not impose or permit or suffer any instrumentality of the said State or
any local or other authority to impose discriminatory taxes, rates or charges
of any nature whatever 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 Joint Venturers required to be carried out under this
Agreement and the State will not take or permit any such instrumentality or
any local or other authority to take any other discriminatory action that
would deprive the Joint Venturers of the rights granted or intended to be
granted to them under this Agreement.
SECTION 11.03 ZONING The State will
ensure that land the subject of the mineral lease or any other lease licence
or easement granted under or pursuant to this Agreement and all freehold land
or land of any other tenure used or occupied by the Joint Venturers for any of
the purposes of this Agreement will not except as provided in this Agreement
be made subject to any such restriction as to its use as would prevent or
unreasonably hinder the Joint Venturers carrying out any of the operations
required or permitted to be carried out under this Agreement whether the
restriction be by way of zoning regulation, by-law or other exercise of
statutory power by the State or any local or other authority.
SECTION 11.04 VALUATION BASIS The State
will ensure that notwithstanding the provisions of any Act or anything done or
purported to be done under any Act the valuation of all land (whether of a
freehold or leasehold nature) the subject of this Agreement (except any part
upon which for the time being a permanent residence is erected or which for
the time being is occupied in connection with that residence and except also
any part upon which for the time being there stands any improvements that are
used in connection with a commercial undertaking not directly connected with
the operations of the Joint Venturers under this Agreement) will for rating
purposes be deemed to be on the unimproved value thereof and no such land will
be subject to any discriminatory rate but the Joint Venturers will be at
liberty should they so desire to make the election provided for by Section
533B of the Local Government Act 1960 .
CLAUSE XII
SECTION 12.01 IMPLEMENTATION OF
PROPOSALS The Joint Venturers will within four (4) years next
following the date on which all the said proposals required to be submitted
pursuant to Section 5.02 have become approved proposals at a cost of not less
than sixty million dollars ($60,000,000) construct install provide and do all
things necessary to enable them to mine from the mineral lease to transport by
rail to the Joint Venturers’ wharf and to commence shipment therefrom in
commercial quantities at an annual rate of not less than one million
(1,000,000) tons of iron ore and without lessening the generality of this
provision the Joint Venturers shall within the aforesaid period or extended
period as the case may be —
(a)
construct install and provide upon the mineral lease or in the vicinity
thereof or at the port (as the case may be) mining plant and equipment
crushing screening stockpiling and car loading plant and facilities power
house workshop and other things of a design and capacity adequate to enable
the Joint Venturers to meet and discharge their obligations hereunder and to
mine handle load and deal with not less than three thousand (3,000) tons of
iron ore per diem such capacity to be built up progressively to not less than
ten thousand (10,000) tons of iron ore per diem within three (3) years next
following the export date;
(b)
actually commence to mine transport by rail and ship from the Joint
Venturers’ wharf iron ore from the mineral lease so that the average
annual rate during the first two years after export date shall not be less
than one million (1,000,000) tons.
CLAUSE XIII
SECTION 13.01 CONSTRUCTION OF
RAILWAY Subject to the State assuring to the Joint Venturers
all necessary rights in or over Crown lands available for the purpose the
Joint Venturers will in a proper and workmanlike manner and in accordance with
recognised standards for railways of a similar nature operating under similar
conditions construct along the route specified in the approved proposals (but
subject to the provisions of the Public Works Act 1902 , to the extent that
they are applicable) the railway having a four feet eight and one-half inch (4
ft. 8½ in.) gauge specified in the approved proposals and will also
construct inter alia any necessary deviations loops spurs sidings crossings
points bridges signalling switches and other works and appurtenances and
provide for crossing places and (where appropriate and required by the
Minister) flashing lights boom gates grade separation or other protective
devices at places where the specified railway crosses or intersects with major
roads or existing railways (all of which together with the specified railway
being hereinafter referred to as “the said railway”) and will
operate the said railway with sufficient and adequate locomotives freight cars
and other railway stock and equipment to haul at least one million (1,000,000)
tons of iron ore per annum.
SECTION 13.02 OPERATION OF RAILWAY The
Joint Venturers will during the continuance of this Agreement operate the said
railway in a safe and proper manner and where they can do so without unduly
prejudicing or interfering with their other operations hereunder they will
provide crossing places for livestock and also for any roads or other railways
which now exist or in the future may be constructed and which cross or may be
required to cross the said railway.
SECTION 13.03 OTHER PASSENGERS AND
FREIGHT Where they can do so without unduly prejudicing or
interfering with their operations hereunder and subject to the payment to them
of the charges prescribed by and for the time being payable under any by-laws
made by the Joint Venturers in respect of the transporting of passengers and
the carriage of freight over the said railway and subject to the due
compliance with the other requirements and conditions prescribed by such
by-laws (or should there be no such by-laws for the time being in force then
subject to the payment of such charges and the due compliance with such
requirements and conditions as in either case are reasonable having regard to
the cost to the Joint Venturers of the construction and operation of the said
railway) the Joint Venturers will if and when reasonably required so to do by
the State transport passengers and carry the freight of the State and third
parties over the said railway but in relation to the carriage of such freight
the Joint Venturers will not be deemed to be a common carrier at law or
otherwise.
CLAUSE XIV
SECTION 14.01 ROAD CONSTRUCTION Subject
to the State assuring to the Joint Venturers all necessary rights in or over
Crown lands available for the purpose the Joint Venturers will at their own
cost and expense construct such new roads as they may reasonably require for
the purposes of this Agreement, such roads to be of such widths, of such
materials, with such gates crossings (level or grade separated where required)
and pass-overs for cattle sheep and other livestock and along such routes as
the parties mutually agree after consideration of the requirements of the
Commissioner of Main Roads. Except to the extent that the Joint
Venturers’ relevant approved proposal otherwise provides, the Joint
Venturers will allow the public to use free of charge any roads constructed or
upgraded pursuant to or for the purposes of this Agreement so long as such use
will not unduly prejudice or interfere with the Joint Venturers’
operations hereunder.
SECTION 14.02 USE OF PUBLIC ROADS The
Joint Venturers will have the right to use any public roads that may from time
to time exist in the area of their operations under this Agreement both prior
to the commencement date and also in the course of their operations hereunder.
If the exercise by the Joint Venturers of such right results in or is likely
to result in intensive use of any public road whereby excessive damage or
deterioration is caused thereto or whereby the road becomes inadequate for use
by the Joint Venturers and the public the Joint Venturers will upon demand
(except where and to the extent that the Commissioner of Main Roads agrees to
bear the whole or part of such cost) pay to the State or the local authority
concerned or other authority having control of such road the cost of
preventing or making good such damage or deterioration or of upgrading the
road to a standard commensurate with the increased traffic.
SECTION 14.03 ROAD UPGRADING If required
by the Joint Venturers the State will at the Joint Venturers’ cost and
expense (except where and to the extent that the Commissioner of Main Roads
agrees to bear the whole or any part of the cost) widen upgrade or realign any
public road existing from time to time which the Joint Venturers desire to use
for their operations hereunder.
SECTION 14.04 LIABILITY FOR USE OF ROADS
(a) For
the purpose of determining whether and the extent to which —
(i)
the Joint Venturers are liable to any person or body
corporate (other than the State) or
(ii)
an action is maintainable by any such person or body
corporate
in respect of the
death or injury of any person or damage to any property arising out of the use
of any of the roads for the construction or maintenance of which the Joint
Venturers are responsible hereunder and for no other purpose the Joint
Venturers shall be deemed to be a municipality and the said roads shall be
deemed to be streets under the care control and management of the Joint
Venturers.
(b) For
the purposes of this Section the terms “municipality”
“street” and “care control and management” shall have
the meanings which they respectively have in the Local Government Act 1960 .
CLAUSE XV
SECTION 15.01 COASTAL WATER
REQUIREMENTS The Joint Venturers will give to the State not
less than two (2) years notice of the estimated amount of water likely to be
required for consumption at the port and at the port townsite and of the rate
or rates at which the same in each case will be required to be supplied. The
said estimated amounts or such other amounts as the parties may agree in that
connection are hereinafter called “the Joint Venturers’ coastal
water requirements”.
SECTION 15.02 COASTAL WATER SEARCH Upon
receipt of such notice the State will in collaboration with the Joint
Venturers and in accordance with a mutually agreed programme and budget at the
expense of the Joint Venturers search in areas agreed to by the parties for
subterranean water sources sufficient to supply the Joint Venturers’
coastal water requirements.
SECTION 15.03 DEVELOPMENT OF WATER
SOURCES In the event of the search mentioned in
Section 15.02 identifying and proving subterranean water sources which the
parties mutually agree are adequate to satisfy the Joint Venturers’
coastal water requirements the State will in accordance with a mutually agreed
programme and budget develop the said water sources by constructing or
arranging to have constructed at the Joint Venturers’ expense all bores
valves pipelines meters tanks equipment and appurtenances (in this Clause
called “water works”) necessary to produce a water supply capacity
sufficient to satisfy the Joint Venturers’ coastal water requirements.
SECTION 15.04 PROGRAMME AND
BUDGET If —
(a)
within six (6) months after receipt of the notice mentioned in Section 15.01
the parties fail to produce a mutually agreed programme and budget for the
purposes of Section 15.02 or —
(b)
within six (6) months after identifying and proving the subterranean water
source the parties fail to produce a mutually agreed programme and budget for
the purpose of Section 15.03 —
then the latest proposal of the State in respect of such programme and budget
will in either case be deemed to be the mutually agreed programme and budget
for the purposes of Section 15.02 or Section 15.03 (as the case may be) unless
the Joint Venturers within the time fixed in the paragraph (a) or paragraph
(b) of this Section 15.04 (as the case may be) refer the matter to arbitration
under Section 32.01 but nothing contained in this Section will effect the
obligation of the State at the Joint Venturers’ expense to comply with
Section 15.02.
SECTION 15.05 ADDITIONAL CAPACITY The
State may in its discretion further develop the said water sources by
constructing water works capable of achieving a capacity greater than that
needed to meet the Joint Venturers’ coastal water requirements and in
that event the Joint Venturers will pay to the State a sum or sums to be
mutually agreed as being the Joint Venturers’ fair share of the cost of
constructing the same.
SECTION 15.06 STATE TO SUPPLY WATER To
the extent that the water sources developed by the State pursuant to Sections
15.02 and 15.03 are hydrologically capable so to do the State shall supply the
Joint Venturers’ coastal water requirements from such sources up to an
amount and at a rate not less than that set out in the notice given pursuant
to Section 15.01 but should such sources prove hydrologically inadequate of
meeting the Joint Venturers’ coastal water requirements the State may
limit the amount of water which may be taken from such sources at any one time
or from time to time to the maximum which such sources are hydrologically
capable of meeting.
SECTION 15.07 INLAND WATER
REQUIREMENTS. The Joint Venturers will give to the State not
less than six (6) months notice of the estimated amount of water likely to be
required for consumption at the mine townsite and also elsewhere within or
near the mineral lease in order to enable them to implement their obligations
hereunder and of the rate or rates at which the same in each case will be
required to be supplied. The said estimated amounts or such other amounts as
the parties may agree in that connection are hereinafter called “the
Joint Venturers’ inland water requirements”.
SECTION 15.08 INLAND WATER SEARCH The
Joint Venturers will in collaboration with the State search for and make
investigations to establish the availability of suitable subterranean water
sources within the mineral lease or at other locations approved by the
Minister as the parties mutually agree and will employ and retain experienced
groundwater consultants where appropriate and will furnish the Minister with
copies of the consultants’ reports or alternatively if so requested by
the Joint Venturers the State will carry out the said search and
investigations at the Joint Venturers’ expense.
SECTION 15.09 WATER WORKS CONSTRUCTION In
the event of the search mentioned in Section 15.08 identifying and proving
subterranean water sources which the parties agree are adequate to satisfy the
Joint Venturers’ inland water requirements the Joint Venturers will
provide and construct at their own expense to standards and designs
satisfactory to the reasonable requirements of the said Minister and in
accordance with their relevant proposals all water works necessary to draw
transport use and dispose of water drawn from such sources in accordance with
the licences issued to the Joint Venturers pursuant to Section 15.10.
SECTION 15.10 LICENCE
(a) The
Joint Venturers will make application under the provisions of the
Rights in Water and Irrigation Act 1914 to the Minister for Works for a
licence to draw water up to an amount and at a rate not less than that set out
in the notice given pursuant to Section 15.07 from the subterranean water
sources mentioned in Section 15.09 and the State will ensure that the said
Minister will grant to the Joint Venturers such licence;
(b)
Should such water sources subsequently be found to be hydrologically
inadequate to meet the Joint Venturers’ inland water requirements the
said Minister may limit the amount of water which may be taken from such water
sources at any one time or from time to time to the maximum which the same are
hydrologically capable of meeting.
SECTION 15.11 REVOCATION OF LICENCE If
during the currency of a licence granted under Section 15.10 the Minister is
of the opinion that it is desirable that the water sources from which the
Joint Venturers are licensed to draw water and the water works constructed by
the Joint Venturers pursuant to Section 15.09 be made available to the State
for such purposes, ( inter alia ) as water conservation water management
utilisation of unused hydrological capacity supply of water to third parties
(where such supply will not unduly prejudice or interfere with the Joint
Venturers’ operations hereunder) and the establishment of a regional
water supply system incorporating the area of operations of the Joint
Venturers the Minister will (after first affording the Joint Venturers an
opportunity to consult with him) so notify the Joint Venturers and the Joint
Venturers will after the expiration of 6 months from the date of such notice
relinquish the ownership control and operation of the said water works to the
State and thereupon the State will assume the ownership control and operation
of the same and will cause the Minister for Works to revoke all relevant
licences to draw water previously issued to the Joint Venturers. The State
will not be liable to pay the Joint Venturers compensation in respect of the
water works so relinquished or the licences so revoked. Immediately after the
revocation of such licences the State will (subject only to the continued
hydrological availability of water from the water sources previously the
subject of such licences) commence and thereafter continue to supply water to
the Joint Venturers up to the same amount and at the same rate as that which
the Joint Venturers would have been entitled to draw under such revoked
licences and paragraph (b) of Section 15.10 will apply as if included in this
Section.
SECTION 15.12 REGIONAL WATER SUPPLY The
State may in its discretion develop any district or regional water supply and
for the purposes thereof construct water works to a greater capacity than that
required to supply the Joint Venturers’ inland water requirements but in
that event the cost of the water works so constructed shall be shared by the
parties in such manner as they mutually agree to be fair in all the
circumstances.
SECTION 15.13 NON-POTABLE WATER The Joint
Venturers will so design and construct their plant and facilities for the
mining handling processing and transportation of iron ore that as far as
practicable non-potable water may be used therein.
SECTION 15.14 CHARGES FOR WATER The Joint
Venturers will pay to the State for water supplied by it pursuant to this
Clause a fair price to be mutually agreed between the parties but such rate
will not be less than the actual cost incurred by the State in supplying the
water to the Joint Venturers including operating maintenance and overhead
costs and a provision for replacement of the necessary water works.
Notwithstanding the foregoing provision the Joint Venturers will pay to the
State in respect of water supplied by the State to the Joint Venturers for
domestic purposes such charges as are levied from time to time pursuant to the
provisions of the Country Areas Water Supply Act 1947 .
SECTION 15.15 ADDITIONAL WATER
SEARCH Should the State at any time pursuant to
Section 15.06 or paragraph (b) of Section 15.10 limit the amount of water to
be taken from the water sources therein mentioned to the maximum amount which
such water sources are hydrologically capable of meeting the Joint Venturers
will collaborate with the State in a search at the Joint Venturers’
expense for new or additional subterranean water sources with a view to
restoring the full quantity or quantities of water required by the Joint
Venturers and such search will (if necessary and agreed between the parties)
extend to and include investigations into surface water resources made
pursuant to Section 15.16.
SECTION 15.16 SURFACE WATER Without
prejudice to the provisions of Sections 15.02 and 15.08 the Joint Venturers
will collaborate with the State in an investigation of surface water
catchments storage dams and reticulation facilities should water supplies from
available underground sources prove insufficient to meet the Joint
Venturers’ coastal water requirements and the Joint Venturers’
inland water requirements and the Joint Venturers will if they propose to
utilise such water catchments and/or storage dams pay to the State a sum or
sums to be mutually agreed towards the cost of such investigation and of
constructing any water storage dam or dams and reticulation facilities
required but nevertheless the State may in its sole discretion elect to
construct a water storage dam or dams and reticulation facilities having a
capacity in excess of that required to supply the Joint Venturers’ needs
and in that event the Joint Venturers’ contribution to the cost thereof
will be limited to a fair and reasonable proportion of the total cost of
constructing such water storage dam or dams and reticulation facilities.
SECTION 15.17 RIGHTS IN WATER AND IRRIGATION
ACT The provisions of the Rights in Water and Irrigation
Act 1914 relating to water rights and licences will except where inconsistent
with the provisions of this Agreement apply to any water sources developed by
the Joint Venturers for the purposes of this Agreement.
CLAUSE XVI
SECTION 16.01 ELECTRICITY FACILITIES The
Joint Venturers will in accordance with the approved proposals construct
without cost or expense to the State the necessary plant equipment and systems
(in this Clause called “electricity facilities”) for the
generation and transmission of electricity needed to enable the Joint
Venturers to carry out their obligations hereunder. The Joint Venturers will
so design and construct the electricity facilities as to facilitate the
ultimate connection of the same with similar electricity facilities owned by
the State Electricity Commission (in this Clause called “the
Commission”) or other third parties.
SECTION 16.02 PURCHASE OF
ELECTRICITY Notwithstanding the provisions of
Section 16.01 (and for the purpose of facilitating integration of electricity
generation and transmission facilities in areas where the Joint Venturers
operate) the Joint Venturers will be at liberty to purchase electricity from
the Commission and third parties or to negotiate with the Commission or third
parties for the augmentation of the electricity facilities of the Commission
and such third parties to enable them to supply the Joint Venturers in lieu of
the Joint Venturers providing their own electricity facilities pursuant to the
said Section.
SECTION 16.03 ACQUISITION OF
FACILITIES The State may at any time give the Joint Venturers
twelve (12) months notice of its intention to acquire and may thereafter
acquire the Joint Venturers’ electricity facilities or any part thereof
up to the first point of voltage breakdown or such other appropriate point as
may be agreed at a price to be agreed between the parties and the Joint
Venturers will take all such steps as may be necessary to effect the
acquisitions. The State undertakes that in such event the Joint Venturers will
for their purposes hereunder have first call on the power generated by such
electricity facilities or such part thereof as may be transmitted by the same
and that (subject only to its inability to supply power for any of the reasons
set out in Section 25.02) it will supply to the Joint Venturers with
electrical power for all their purposes hereunder up to the normal continuous
full load capacity of such electrical facilities and that (in the event of
such inability occurring) it will take all possible steps to restore such
supply regardless of the time or day when such inability arises and may call
upon the Joint Venturers to provide employees for that purpose.
SECTION 16.04 CHARGES FOR ELECTRICITY In
the event of the State acquiring the Joint Venturers’ electricity
facilities the Joint Venturers will pay to the Commission for all electricity
supplied to the Joint Venturers by the Commission at a rate equal to the
standard tariff applying from time to time in respect to the supplying of
electricity by the Commission less the difference (if any) between the
Commission’s standard tariff in force at the time of the State’s
acquisition of the said electricity facilities and the Joint Venturers’
costs of operating the same (including (inter alia) appropriate capital
charges) at the time of the acquisition. The said rate will apply only in
respect of an amount of electricity equal to the continuous full load capacity
of the electricity facilities so acquired and the Joint Venturers will pay for
all electricity in excess of such amount supplied to them by the Commission
from other sources at the Commission’s standard tariff from time to
time.
SECTION 16.05 BULK SUPPLY TO STATE Should
the Joint Venturers’ relevant approved proposal provide for the
Commission to reticulate electricity to houses occupied by the Joint
Venturers’ workforce (including their dependants) and by any other
persons (including their dependants) connected directly with Joint
Venturers’ operations whether employees or not and to commercial
establishments directly connected with such operations the Joint Venturers
will sell to the Commission in bulk electricity in sufficient quantities to
meet the needs of such workforce persons and establishments at a price equal
to the Joint Venturers’ actual cost of generating and transmitting such
electricity including inter alia appropriate capital charges.
CLAUSE XVII
SECTION 17.01 PORT DEVELOPMENT
(a) The
Joint Venturers will develop the port, construct the Joint Venturers’
wharf and carry out all necessary dredging of approach channels, swinging
basin and berth at the Joint Venturers’ wharf and provide all necessary
buoys beacons markers navigational aids lighting equipment and services and
facilities in accordance with the Joint Venturers’ relevant approved
proposal.
(b)
Notwithstanding the provisions of paragraph (a) of this Section the parties
recognise that it could be to their mutual advantage if the State provided all
or some of the said works mentioned in the said paragraph and accordingly the
State will confer with the Joint Venturers and the others users and potential
users of the port as to the manner in which and the terms and conditions upon
which the State should provide such works. The Joint Venturers will pay to the
State such sum or sums as the parties agree (not exceeding the amount that
would have been payable had the Joint Venturers carried out the said works)
towards the cost of each of the said works as are provided by the State.
SECTION 17.02 USE OF WHARF
(a)
Subject to the payment to them of the charges prescribed by and for the time
being payable under any by-laws made by the Joint Venturers in respect of the
use by others of the Joint Venturers’ wharf and subject to the due
compliance with the other requirements and conditions prescribed by such
by-laws or should there be no such by-laws for the time being in force then
subject to the payment of such charges and the due compliance with such
requirements and conditions as in either case may be reasonable having regard
to the cost to the Joint Venturers of the construction and operation of the
Joint Venturers’ wharf the Joint Venturers will permit the State and
third parties to use the Joint Venturers’ wharf and the port
installations wharf machinery and port services and facilities constructed or
provided by the Joint Venturers in connection therewith if and for so long as
such user does not unduly prejudice of interfere with the operations of the
Joint Venturers under this Agreement.
(b)
Subject to the provisions of Section 17.03 nothing in this Agreement shall be
construed to limit the application of the Shipping and Pilotage Act 1967 .
SECTION 17.03 NO CHARGE FOR
CARGOES Subject to the Joint Venturers at their own expense
providing all works buildings dredging and things of a capital nature
reasonably required for their operations hereunder at or in the vicinity of
the port the State will not (and ensures that a State agency or authority or
instrumentality will not) make any charge or levy on the Joint Venturers in
relation to the loading of outward or the unloading of inward cargoes from the
Joint Venturers’ wharf whether much cargoes be the property of the Joint
Venturers or of a third party but the State will be under no obligation to
undertake such loading or unloading and will be at liberty to make all
statutory charges from time to time prevailing in respect of services rendered
by the State or by any State agency authority or instrumentality or by any
local or other authority on behalf of the State and to charge vessels using
the Joint Venturers’ wharf ordinary light conservancy and tonnage dues.
CLAUSE XVIII
SECTION 18.01 TOWNSITES
(a)
Should the approved proposals provide for the establishment of a new town at
the port townsite or at the mine townsite or of new towns at both places the
Joint Venturers will at their own cost and in accordance with the approved
proposals —
(i)
provide at the townsite or at each townsite (as the case
may be) such housing accommodation services and works (including sewerage
reticulation and treatment works water supply works and main drainage works
and also educational hospital medical police fire and other services and
social recreational cultural and civic facilities) as may be reasonably
necessary in order to provide for the needs of persons (and the dependants of
those persons) connected directly with the Joint Venturers’ operations
under this Agreement, whether or not such persons are employed by the Joint
Venturers;
(ii)
provide at the townsite or at each townsite (as the case
may be) all necessary public roads public buildings and other public works;
and
(iii)
provide all equipment required for the operation and
proper functioning of the services and works mentioned in paragraph (i) above
established in such new town or new towns;
(iv)
service maintain and where necessary repair and renovate
the housing accommodation services and works mentioned in the said paragraph
(i);
(v)
(subject to and in accordance with by-laws from time to
time to be made and altered by the Joint Venturers which include provisions
for fair and reasonable prices rentals or charges or if no such by-laws are
made or in force then at such prices rentals or charges and upon and subject
to such terms and conditions as are fair and reasonable) ensure that the said
housing accommodation services and works are at all times readily available to
persons requiring the same being employees licensees or agents of the Joint
Venturers or persons engaged in providing a legitimate and normal service to
or for the Joint Venturers or their employees licensees or agents including
the dependants of such persons; and
(vi)
ensure that the roads buildings and other works mentioned
in paragraph (ii) above and the equipment mentioned in paragraph (iii) above
are readily available free of charge to those desiring to use the same.
(b)
Nothing contained in Section 18.01(a) shall be construed as placing on the
Joint Venturers an obligation to provide and pay for personnel required to
operate the educational hospital medical or police services mentioned in such
Section.
SECTION 18.02 EQUIPMENT The Joint
Venturers shall at their own cost equip all the buildings mentioned in Section
18.01(a) to the extent and of a standard at least equal to that normally
adopted by the State in similar types of buildings used for similar purposes
in comparable townsites.
SECTION 18.03 STAFF HOUSING The Joint
Venturers will at their own cost provide adequate housing accommodation for
married and single staff directly connected with the educational hospital
medical and police services mentioned in paragraphs (i) and (iii) of Section
18.01(a).
SECTION 18.04 EXISTING TOWNS If the
approved proposals provide for the assimilation into any existing town of the
whole or part of the Joint Venturers’ workforce (including their
dependants) and any other persons (including their dependants) connected
directly with the Joint Venturers’ operations (whether employees of the
Joint Venturers or not) whereby the population of such existing town is
increased then the Joint Venturers will subject to the provisions of Section
7.03 bear the cost of the provision and maintenance at that existing town of
additional housing accommodation services works and equipment of the kind
mentioned in paragraph (i) of Section 18.01(a) to the extent necessary in
order to provide for the needs of the said increase in population of such
existing town. The said additional housing services works and equipment may be
provided by the State or by another party under an agreement with the State
and in either case will be to the extent and of a standard at least equal to
that normally adopted by the State in similar types of buildings used for
similar purposes in comparable towns. The Joint Venturers will pay to the
State or such other party such proportion of the cost of such additional
housing services works and equipment as is fair and reasonable having regard
to the extent of the said increase in the population of such existing town.
SECTION 18.05 STATE PROVIDED
SERVICES Should the approved proposals place an obligation on
the State itself to provide any services or facilities of the kind mentioned
in paragraph (i) of Section 18.01(a) or require the State to procure and
accept the responsibility of the provision of any such services and facilities
the State will provide or procure the provision of the same but (unless the
approved proposals otherwise provide) subject to the following conditions
namely —
(a) that
the State is satisfied that the need to provide such services and facilities
results solely from or is reasonably attributable solely to the Joint
Venturers’ operations under this Agreement; and
(b) the
Joint Venturers agree to bear the capital cost involved and thereafter to pay
reasonable charges for the maintenance and operation of the said services or
facilities other than the operation charges in respect of education hospital
medical and police services.
CLAUSE XIX
SECTION 19.01 ENVIRONMENTAL
PROTECTION Nothing in this Agreement will be construed to
exempt the Joint Venturers from compliance with any requirement in connection
with the protection of the environment arising out of or incidental to the
operations of the Joint Venturers hereunder that may be made by the State or
any State agency or instrumentality or any local or other authority or
statutory body of the State pursuant to the Environmental Protection Act 1971
or any other Act for the time being in force relating to environmental
protection.
CLAUSE XX
SECTION 20.01 COMPLIANCE WITH STATE
LAWS The Joint Venturers will in the construction operation
maintenance and use of any work installation plant machinery equipment service
or facility provided or controlled by them comply with and observe the
provisions of this Agreement and subject thereto the laws for the time being
in force in the said State.
SECTION 20.02 INSTALLATIONS TO BE KEPT IN GOOD REPAIR The
Joint Venturers will at all times keep and maintain in good repair and working
order and where necessary replace all such works installations plant machinery
and equipment railways wharfs roads (other than public roads unless and to the
extent otherwise provided herein) and water and power supplies for the time
being the subject of this Agreement.
SECTION 20.03 LOCAL LABOUR AND
SUPPLIERS The Joint Venturers will as far as it is reasonably
and economically practicable for them so to do —
(a) use
the labour for the time being available within the said State;
(b) when
calling for tenders and letting contracts for works materials plant equipment
and supplies ensure that Western Australian suppliers manufacturers and
contractors are given reasonable opportunity to tender or quote —
(c) 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 and where price
quality delivery and service are equal to or better than that obtainable
elsewhere.
SECTION 20.04 COMMONWEALTH CONSENTS
(a) The
Joint Venturers will from time to time make application to the Commonwealth or
to the Commonwealth constituted agency, authority or instrumentality concerned
for the grant to them of any licence or consent under the laws of the
Commonwealth of Australia necessary to enable or permit them to enter into
this Agreement and/or to perform any of their obligations hereunder;
(b) On
request by the Joint Venturers the State will make representations to the
Commonwealth or to the Commonwealth constituted agency authority or
instrumentality concerned for the grant to the Joint Venturers of any licence
or consent mentioned in Section 20.04(a).
CLAUSE XXI
SECTION 21.01 ROYALTY The Joint Venturers
will during the continuance of this Agreement pay to the State a royalty on
all iron ore products at the rates herein specified in respect of each
particular class of iron ore product namely —
(a) on
iron ore products (being direct shipping ore and fine ore and fines not sold
or shipped separately as such) sold and shipped beyond the Commonwealth
— at the rate of seven and one half percentum (7½%) of the FOB
revenue (computed at the rate of exchange prevailing on date of receipt by the
Joint Venturers of the purchase price of such iron ore products) PROVIDED
NEVERTHELESS that subject as provided in paragraph (a) of Section 21.02 the
total royalty payable under this paragraph will not be less than the sum
ascertained by multiplying sixty cents ($0.60) by the total tonnage of such
iron ore products.
(b) On
iron ore products (being fine ore and fines so sold or shipped separately as
such) sold and shipped beyond the Commonwealth — at the rate of seven
and one half percentum (7½%) of the FOB revenue (computed as mentioned in
paragraph (a) of this Section) PROVIDED NEVERTHELESS that subject as provided
in paragraph (b) of Section 21.02 the total royalty payable under this
paragraph shall not be less than the sum ascertained by multiplying thirty
cents ($0.30) by the total tonnage of such iron ore products.
(c) on
iron ore products (being such as are produced by secondary processing locally
used ore) sold and shipped beyond the Commonwealth — at the rate of
fifteen cents ($0.15) per ton.
(d) on
any other iron ore products of whatsoever kind —
(i)
where the same are sold and shipped beyond the
Commonwealth — at the rate of seven and one half percentum (7½%) of
the FOB revenue (computed as aforesaid) without any minimum royalty;
(ii)
where the same are not so sold and shipped — at the
rate of fifteen cents ($0.15) per ton.
SECTION 21.02 FURTHER ROYALTY
PROVISIONS The following provisions will also apply in relation
to the payment of the royalty —
(a) if
the amount ascertained by multiplying sixty cents ($0.60) by the total tonnage
of direct shipping ore shipped or sold (and liable to royalty under paragraph
(a) of Section 21.01) in any financial year is less than the total royalty
which would be payable in respect of that ore but for the operation of the
proviso to that paragraph then that proviso shall not apply in respect of
direct shipping ore shipped or sold in that year and at the expiration of that
year any necessary adjustments shall be made;
(b) if
the amount ascertained by multiplying thirty cents ($0.30) by the total
tonnage of fine ore and fines shipped or sold separately as such (and liable
to royalty under paragraph (b) of Section 21.01) in any financial year is less
than the total royalty which would be payable in respect of that ore but for
the operation of that proviso to that paragraph then that proviso shall not
apply in respect of fine ore and fines shipped or sold separately as such in
that year and at the expiration of that year any necessary adjustments shall
be made;
(c) the
rate of royalty of fifteen cents ($0.15) per ton mentioned in paragraphs (c)
and (d) of Section 21.01 will be adjusted up or down (as the case may be) as
at the first day of January 1969 and as at the beginning of every fifth year
thereafter in accordance with any variation in the average of the basic prices
of foundry pig iron CIF Australian capital city ports as announced by BHP from
time to time during the calendar year immediately preceding the date at which
the adjustment is required to be made as compared with such average for the
calendar year 1963;
(d)
where iron ore products produced from secondary processing hereunder are so
produced from an admixture of iron ore from the mineral lease and other iron
ore a portion (and a portion only) of the iron ore products so produced (being
that part of the whole of the iron ore prducts so produced as bears to that
whole the same ratio as the amount of iron in the iron ore from the mineral
lease used in the production of those iron products bears to the total amount
of iron in the iron ore so used) will be deemed to be iron ore products within
the meaning of that term as defined in Section 1.01.
SECTION 21.03 ROYALTY PAYMENT The Joint
Venturers will during the continuance of this Agreement within fourteen (14)
days after the following quarter days namely the last days of March June
September and December in each year (commencing with the quarter day next
following the export date) furnish to the Minister a return showing the
quantity of all iron ore and/or iron ore products on which royalty is payable
hereunder and shipped sold or used (as the case may be) during the quarter
immediately preceding the due date of the return and shall not later than two
(2) months after such due date pay to the Minister the royalty payable in
respect of such of the iron ore products mentioned in Section 21.01 as are
locally used and will also pay to the Minister in respect of such of the said
iron ore products as are shipped or sold a sum on account of the royalty
payable hereunder calculated on the basis of the invoices or provisional
invoices (as the case may be) therefore rendered by the Joint Venturers to the
purchaser (which invoices the Joint Venturers shall render without delay and
simultaneously will furnish copies thereof to the Minister) and will from time
to time when the f.o.b. revenue realised in respect of the shipments has been
ascertained in the next following appropriate return and payment (in the
return and by cash) make all such necessary adjustments and give to the
Minister full details thereof.
SECTION 21.04 INSPECTION OF RECORDS The
Joint Venturers will throughout the continuence of this Agreement permit the
Minister or his nominee at all reasonable times to inspect the books of
account and records of the Joint Venturers relative to any shipment sale or
use of iron ore products hereunder including sales contracts and to take
copies or extracts therefrom and for the purpose of determining the f.o.b.
revenue payable in respect of any shipment or sale of iron ore products
hereunder the Joint Venturers will take reasonable steps (either by the
certificate of a competent independent party acceptable to the Minister or
otherwise to the Minister’s reasonable satisfaction) to satisfy the
State as to the correctness of all relevant weights assays and anaylses and
will give due regard to any objection or representation made by the Minister
or his nominee as to any particular weight assay or analysis that may affect
the amount of royalty payable hereunder. The information obtained by the
Minister or his nominee as a result of any such inspection shall be used only
for the purposes of verifying the amount of royalty payable by the Joint
Venturers and for no other purpose and shall not be disclosed by the State the
Minister or his nominee to any other party for any other purpose.
CLAUSE XXII
SECTION 22.01 OFFLOADING WITHIN COMMONWEALTH Subject to
Section 22.03 the Joint Venturers will not at any time during the continuance
of this Agreement unless the Minister otherwise permits offload or permit to
be offloaded any iron ore products shipped pursuant to this Agreement at a
place within the Commonwealth.
SECTION 22.02 NOTICE OF OFFLOADING Where
iron ore products are off-loaded in breach of Section 22.01 the Joint
Venturers will forthwith after becoming aware of that event give notice of the
same to the Minister and will without prejudice to any other rights or
remedies of the State by reason of the breach on demand pay to the State by
way of additional royalty such sum as the Minister may determine but not more
than a sum representing one dollar ($1.00) per ton on the quantity of iron ore
products off-loaded.
SECTION 22.03 PERMISSIBLE OFFLOADING The
Joint Venturers will not be deemed to have committed a breach of Section 22.01
if iron ore products are off-loaded at a place within the Commonwealth in any
of the following circumstances —
(a)
where the iron ore products are shipped in a vessel that is not owned by the
Joint Venturers or an associated company and the Joint Venturers have taken
appropriate steps to ensure that iron ore products will not again be
off-loaded in breach of Section 22.01; or
(b)
because the vessel in which the iron ore products are being carried is
diverted for necessary repairs or because of a force majeure or other
unforeseeable cause and the Joint Venturers satisfy the Minister that because
of any such event they could not take or be reasonably expected to have taken
steps to prevent the off-loading; or
(c)
where the iron ore products off-loaded are locally used ore and the tonnage of
ore of that kind which has been off-loaded in any part of the Commonwealth in
any year does not exceed fifty percentum (50%) (or such other percentage as
the Minister approves) of the tonnage of locally used ore consumed used or
otherwise applied in the said State.
PART IV
Secondary Processing
CLAUSE XXIII
SECTION 23.01 SECONDARY PROCESSING
PROPOSALS The Joint Venturers will from time to time renew the
investigations already commenced by them as to the feasibility of establishing
within the said State a plant or plants for secondary processing of iron ore
from the mineral lease and will by the end of Year 10 (or within such extended
time as the Minister may allow) submit to the Minister detailed proposals for
the establishment of such a plant or plants on the following basis —
(a) the
plant or plants to be of such design and dimensions that will progressively
have the capacity to process annually —
(i)
by the end of Year 12 — not less than two million
(2,000,000) tons of iron ore,
(ii)
by the end of Year 21 — not less than four million
(4,000,000) tons of iron ore,
(iii)
by the end of Year 30 — not less than six million
(6,000,000) tons of iron ore.
(b) the
capital cost involved to be not less than eighty million dollars ($80,000,000)
unless the Joint Venturers utilize a less expensive but at least equally
satisfactory method of secondary processing of iron ore than any at present
known to either party.
SECTION 23.02 CONSIDERATION OF
PROPOSALS If such detailed proposals are submitted by the Joint
Venturers to the Minister within the time mentioned in Section 23.01 the
Minister will within two months of the receipt thereof give to the Joint
Venturers notice either of his approval of the said proposals or of any
objections he has or alterations he desires thereto. In the latter case the
Minister will afford the Joint Venturers an opportunity to consult with and to
submit new or further proposals to him and if within thirty (30) days after
receipt of such notice agreement is not reached as to the said proposals the
Joint Venturers may within a further period of thirty (30) days by notice to
the State elect to refer to arbitration under Section 32.01 any question as to
the reasonableness of the Minister’s decision. If by the award on the
arbitration the question is decided in favour of the Joint Venturers the
Minister will be deemed to have approved of the said proposals as submitted by
the Joint Venturers.
SECTION 23.03 FAILURE TO SUBMIT
PROPOSALS If such detailed proposals are not submitted by the
Joint Venturers to the Minister within the time mentioned in Section 23.01 or
if such proposals are so submitted but are not approved by the Minister within
two months of receipt thereof (or within such further time as the Minister may
desire to take before delivering his decision) or if upon an arbitration under
Section 23.02 the question is decided against the Joint Venturers then the
following provisions shall apply —
(a)
subject as provided in paragraph (c) of this Section the Joint Venturers shall
not after the end of the Year 12 export iron ore hereunder at an annual rate
in excess of five million (5,000,000) tons unless prior to Year 10 the
Minister has already approved of proposals by the Joint Venturers involving
the export of iron ore at an annual rate in excess of five million (5,000,000)
tons, and —
(b) if
by the end of Year 13 the State gives to the Joint Venturers notice that some
other company or party (hereinafter referred to as “the Third
Party”) has agreed to establish within the said State a plant for
secondary processing of iron ore from the mineral lease on terms not more
favourable on the whole to the Third Party than those proposed by or available
to the Joint Venturers hereunder then this Agreement will (subject as
hereinafter provided) cease and determine at the end of Year 21 or at the date
on which the Third Party substantially establishes the said plant in
accordance with terms agreed between the State and the Third Party whichever
date is the later;
(c) if
by the end of Year 13 the State has not given to the Joint Venturers a notice
pursuant to the provisions of paragraph (b) of this Section then the
provisions of paragraph (a) of this Section shall as from the end of Year 13
cease to operate and have effect.
SECTION 23.04 SUBMISSION OF PROPOSALS AFTER YEAR 10
Notwithstanding the provisions of Section 23.03 the Joint Venturers may
nevertheless at any time after the end of Year 10 submit proposals for the
establishment of the said plant if at the time they have not received a notice
pursuant to the provisions of paragraph (b) of Section 23.03 and the provision
of Section 23.02 will apply to such proposals but the Joint Venturers may not
submit such proposals between the end of Year 10 and the end of Year 21 if by
the end of Year 13 they receive such a notice and the same is not subsequently
withdrawn. In the event of negotiations between the Minister and the Third
Party being terminated the Minister will withdraw such notice.
SECTION 23.05 FAILURE NOT A DEFAULT The
failure by the Joint Venturers to submit proposals to the Minister pursuant to
Section 23.01 or the non-approval by the Minister of any proposals so
submitted shall not constitute a breach of this Agreement by the Joint
Venturers but subject as herein otherwise provided the only consequence
arising from such failure or non-approval will be that set out in Section
23.03.
SECTION 23.06 PROVISIONS APPLYING TO
PROPOSALS Subject as in this Clause (Clause XXIII) otherwise
provided the provisions of Clauses V, VI and VII shall apply mutatis mutandis
to detailed proposals made under this Clause.
SECTION 23.07 “SUBSTANTIALLY
ESTABLISHED” For the purposes of this Clause a plant for
secondary processing will be deemed to have been substantially established
when and not before such plant has a capacity to process not less than two
million (2,000,000) tons of iron ore per annum and the Minister is satisfied
that the party establishing the plant will proceed bona fide to operate and
develop the same.
SECTION 23.08 “TERMS NOT MORE
FAVOURABLE” When considering for the purposes of this
Clause whether or not the terms agreed by the State for the establishment of a
plant for secondary processing are not more favourable on the whole to the
party establishing the same than those proposed by or applicable to the Joint
Venturers regard will be had ( inter alia ) to the following —
(a) the
obligations which would have devolved on the Joint Venturers had their
proposals for the establishment of a plant for secondary processing been
approved by the State and the Joint Venturers had proceeded to the substantial
establishment of such plant;
(b) the
obligations of the Joint Venturers to mine and transport by rail and ship iron
ore mined from the mineral lease and the restrictions relating thereto;
(c) the
obligations of the Joint Venturers to pay rent and royalty hereunder;
(d) the
possible loss of rights under this Agreement by reason of the same ceasing and
determining pursuant to the provisions of this Clause;
(e) the
need for the Third Party to pay on a fair and reasonable basis for or for the
use of property made available by the State to them; and
(f) the
equivalent or additional obligations to the State assumed by the Third Party.
SECTION 23.09 SUPPLIES TO FOURTH PARTY If
at any time after Year 15 or such earlier date as the parties may mutually
agree the Minister shall give to the Joint Venturers notice that some other
company or party (hereinafter referred to as “the Fourth Party”)
has agreed to establish tertiary processing facilities within the said State
the Joint Venturers will upon being requested by the Minister so to do (he
having had due regard to the obligations of the Joint Venturers under existing
sales contracts) at any time after Year 17 after reasonable notice supply to
the Fourth Party at the rate of five million (5,000,000) tons per annum iron
ore of a grade equal to the average grade of direct shipping ore which at the
time is being sold and shipped by the Joint Venturers or if the parties shall
mutually agree then such quantity per annum of iron ore products produced by
the Joint Venturers by secondary processing as shall contain the same quantity
of iron as would be contained in five million (5,000,000) tons of such direct
shipping ore. The Joint Venturers will charge the Fourth Party for all iron
ore or iron ore products so supplied a fair and reasonable price to be
mutually agreed between them and the Fourth Party (or in default of agreement
as fixed by arbitration in accordance with the provisions of the Arbitration
Act 1895 ).
CLAUSE XXIV
SECTION 24.01 PROTECTION FOR CURRENT
CONTRACTS If this Agreement should cease and determine pursuant
to any provision contained in Clause XXIII and if at the date of such
cessation or determination the Joint Venturers are under an obligation arising
under a current contract or contracts with some other party originally entered
into by them pursuant to proposals approved by the Minister to supply iron ore
to that other party the Joint Venturers may give notice of that fact to the
Minister and request the State to ensure that the Third Party agrees itself to
take over and assume liability for the due and punctual discharge of the Joint
Venturers said obligations or alternatively agrees to supply iron ore to
enable them to discharge their said obligations and the State will forthwith
upon receipt of such notice or as soon as possible or practicable thereafter
do or cause to be done all such acts matters or things as may be fair and
reasonable in the circumstances to comply with the Joint Venturers’ said
request.
PART V
General Provisions
CLAUSE XXV
SECTION 25.01 GENERAL APPLICATION The
provisions of this Part (Part V) shall have application throughout this
Agreement.
SECTION 25.02 DELAYS This Agreement is
deemed to be made subject to any delays in the performance of the obligations
hereunder and to the temporary suspension of the continuing obligations
hereunder 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 delays or any temporary suspension caused by or arising from an act
of God force majeure floods storms tempest washaways fire (unless caused by
the actual fault or privity of the Joint Venturers) 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 profitably to sell iron ore 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 but the party whose responsibility it is to perform the obligations
the performances of which are so delayed or suspended will minimise the effect
of the cause thereof as soon as possible after its occurrence.
SECTION 25.03 NOTICE OF DELAYS On the
happening of any event mentioned in Section 25.02 that in the opinion of the
Joint Venturers may delay the performance by them of any of their obligations
hereunder within a specified time the Joint Venturers will promptly give
notice to the Minister of that event and of any likely delay and in that case
the Minister will grant such extension of time for the performance of the
obligation as shall in all the circumstances be fair and reasonable and where
the Joint Venturers object to the decision of the Minister as to what is a
fair and reasonable extension the matter will be referred to arbitration
hereunder.
SECTION 25.04 ASSIGNMENT AND MORTGAGE The
Joint Venturers jointly or any one of them severally may at any time —
(a) by
an assignment mortgage charge subletting or other disposition assign mortgage
charge sublet or otherwise dispose of to an associated company as of right or
to any third party with the consent of the Minister the whole or any part of
their or its rights (including their or its rights to or as the holder of any
lease licence easement grant or other title) and obligations hereunder; or
(b) by
appointment in writing appoint an associated company as of right or any third
party with the consent of the Minister to exercise for and on their or its
behalf all or any of the powers functions and authorities that are or may be
conferred on them hereunder;
subject however to the assignee (as hereinbefore defined) 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 of this Agreement by or on the
part of the Joint Venturers to be complied with observed or performed in
regard to the subject of such assignment subletting or other disposition or
appointment.
SECTION 25.05 JOINT VENTURERS TO REMAIN LIABLE
Notwithstanding anything contained in or anything done under or pursuant to
Section 25.04 but subject as provided in Section 25.06 the Joint Venturers and
each of them will 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 their part contained herein and in any lease
licence easement grant or other title the subject of an assignment mortgage
charge subletting or other disposition or appointment under Section 26.04 but
the Minister may however agree to release the Joint Venturers or any of them
from any such liability where he considers such release will not be contrary
to the interests of the State.
SECTION 25.06 JOINT VENTURERS MAY BE DISCHARGED
Where any agreement that is not inconsistent with the terms of this Agreement
is entered into by the Joint Venturers with some other company or person and
results in that other company or person discharging all or any of the
obligations undertaken by the Joint Venturers under this Agreement or renders
it unnecessary for the Joint Venturers to discharge any obligation undertaken
by them hereunder the Minister may discharge or temporarily relieve the Joint
Venturers from such part of their obligations as is reasonable having regard
to the extent of and the period during which the other company or person
actually effects the discharge of those obligations.
SECTION 25.07 BY-LAWS The Governor in
Executive Council may upon the recommendation of the Joint Venturers make
alter and repeal by-laws for the purpose of enabling the Joint Venturers to
fulfil their obligations under Sections 13.02, 13.03, 16.05 and 17.02 and
(unless and until the townsite concerned is declared a townsite pursuant to
Section 10 of the Land Act) under item (v) of Section 18.01(a) upon terms and
subject to conditions (including terms and conditions as to user charging and
limitation of the liability of the Joint Venturers) consistent with the
provisions hereof. If at any time it appears that any by-law made hereunder
has as a result of altered circumstances become unreasonable or inapplicable
then the Joint Venturers will recommend to the Governor that he makes such
alteration or repeal thereof as the State may reasonably require or (in the
event of there being any dispute as to the reasonableness of such requirement)
as may be decided by arbitration as herein provided.
CLAUSE XXVI
SECTION 26.01 DETERMINATION In any of the
following events namely —
(a) if
the Joint Venturers make default in the due performance or observance of any
of their obligations or responsibilities hereunder (including the breach of
any covenant agreement or condition contained in any lease licence easement
grant or other document of title and by or on their part to be performed or
observed) and fail to remedy such default within a reasonable time after
notice specifying the default is given to them by the State (or if the alleged
default is contested by the Joint Venturers and promptly submitted to
arbitration within a reasonable time fixed by the arbitration award where the
question is decided against the Joint Venturers and the arbitrator finds that
there was a bona fide dispute and that the Joint Venturers had not been
dilatory in pursuing the arbitration); or
(b) if
all of the Joint Venturers and all assignees who have executed or are bound by
a Deed of Covenant mentioned in Section 25.04 abandon their operations or
repudiate their obligations under this Agreement and fail to resume such
operations or resume such performance within a reasonable time after notice
specifying in what respects they have failed to resume operations or resume
performance of their obligations is given to them by the State or (if the
alleged failure is contested by the Joint Venturers or any such assignees and
promptly submitted to arbitration) within the time fixed by the arbitration
award where the question is decided against the Joint Venturers and the
arbitrator finds that there was a bona fide dispute and that the Joint
Venturers or such assignees had not been dilatory in pursuing the arbitration;
or
(c) if
all the Joint Venturers still bound by any of the terms of this Agreement and
all assignees who have executed and are still bound by a Deed of Covenant
mentioned in Section 25.04 go into liquidation (other than a voluntary
liquidation for the purpose of reconstruction); or
(d) if
the Joint Venturers surrender the entire mineral lease —
then and in any of such events the State may by notice to the Joint Venturers
determine this Agreement and the rights of the Joint Venturers hereunder and
under any lease licence easement or right granted hereunder or pursuant hereto
will thereupon cease and determine.
SECTION 26.02 FORM OF NOTICES A notice
given by the State pursuant to paragraph (a) of Section 26.01 or pursuant to
paragraph (b) of that Section shall specify the nature of the default or other
ground (if any) on which the State claims to be entitled to exercise the right
to determine this Agreement and the time within which the default is required
to be remedied and (where appropriate and possible for the State so to do)
shall name the party or parties whose responsibility it is to remedy the same.
Such notice shall be given to the Joint Venturers and to any assignee or any
mortgagee of whose name and address for service the State has had previous
notice in writing.
SECTION 26.03 ASSIGNEE OR MORTGAGEE MAY REMEDY
DEFAULT Any assignee or any mortgagee will be at liberty to
remedy any default specified in any notice given pursuant to paragraph (a) of
Section 26.01 or pursuant to paragraph (b) of Section 26.01 within the time
specified in such notice and such remedying shall be accepted by the State as
and in lieu of a remedying of the default by the Joint Venturers.
SECTION 26.04 STATE MAY REMEDY
DEFAULT Instead of determining this Agreement as provided in
Section 26.01 the State may itself remedy or cause to be remedied any default
on the part of the Joint Venturers for which purpose the State will have full
power and authority by its agents or workmen or otherwise to enter into and
upon land occupied by the Joint Venturers and to use all of any plant
machinery equipment and installations thereon and all costs and expenses
incurred by the State in remedying such default or causing the same to be
remedied will be a debt due by the Joint Venturers to the State and be payable
on demand.
SECTION 26.05 EFFECT OF
DETERMINATION Upon the cessation or determination of this
Agreement —
(a) the
rights of the Joint Venturers and those of any assignee or mortgagee of the
Joint Venturers under this Agreement or under the mineral lease or any other
lease, licence, easement or right granted hereunder or pursuant hereto and all
the right title and interest of the Joint Venturers and of any such assignee
or mortgagee in and to any land wherever situated granted to the Joint
Venturers or to such assignee for any other of the purposes of this Agreement
will except as otherwise agreed by the Minister thereupon cease and determine,
but without prejudice to the liability of either of the parties in respect of
any antecedent breach or default under this Agreement or in respect of any
indemnity given hereunder and the Joint Venturers will without further
consideration at the request and cost of the State transfer or surrender to
the State or the Crown all land the subject of any Crown Grant issued under
the Land Act pursuant to this Agreement;
(b) the
Joint Venturers will forthwith pay to the State all monies that may then have
been payable or accrued due hereunder; and
(c) the
Joint Venturers will forthwith furnish to the State complete factual
statements of the work research surveys and reconnaissance carried out under
Clause IV if and in so far as the statements may not have been furnished; and
(d)
except as provided in Section 26.06 or otherwise provided in this Agreement
neither of the parties will have any claim against the other of them in
respect to any matter or thing contained in or arising out of this Agreement.
SECTION 26.06 PROPERTY PASSES TO
STATE Upon the cessation of this Agreement all buildings
erections and other improvements erected on any land then occupied by the
Joint Venturers or any associate company or assignee of the Joint Venturers
under the mineral lease or any other lease licence easement, right or grant
made hereunder for the purposes hereof (including the said railway and the
appurtenances constructed pursuant to Section 13.01 and including also the
Joint Venturers’ wharf) shall become and remain the absolute property of
the State without the payment of any compensation or consideration to the
Joint Venturers or any other party and freed and discharged from all mortgages
and other encumbrances and the Joint Venturers will do and execute all such
deeds documents and other acts matters and things (including surrenders) as
the State may reasonably require to give effect to the provisions of this
Section.
SECTION 26.07 STATE OPTION TO PURCHASE In
the event of the Joint Venturers immediately prior to the cessation or
determination of this Agreement or subsequently thereto desiring to remove any
of their locomotives rolling stock, or their electricity facilities or any of
their other fixed or movable plant and equipment (excluding the said railway
and appurtenances and the Joint Venturers’ wharf) from any part of the
land occupied by them at the date of such cessation or determination they will
give to the State notice of such desire and thereby will grant to the State
the right or option exercisable within three (3) months thereafter to purchase
at a valuation in situ the said locomotives rolling stock electricity
facilities and other fixed or movable plant and equipment or any part thereof.
Such valuation will be such as is mutually agreed or in default of agreement
shall be made by a competent valuer mutually appointed by the parties or in
default of agreement by two valuers, one to be appointed by each party and an
umpire appointed by such valuers should they fail to agree.
CLAUSE XXVII
SECTION 27.01 INDEMNIFICATION The Joint
Venturers will 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 Joint Venturers pursuant to this Agreement or relating to
their operations or arising out of in connection with the construction
maintenance operation or use by them or their servants agents contractors
appointees or assignees of the works or services constructed maintained
operated or used by them under this Agreement or the plant apparatus or
equipment installed in connection therewith.
CLAUSE XXVIII
SECTION 28.01 VARIATION The parties 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 or of any lease licence
easement or right granted hereunder or pursuant hereto for the purpose of
implementing or facilitating any of the purposes and objects of this
Agreement.
SECTION 28.02 VARIATIONS TO BE TABLED IN PARLIAMENT Where
in the opinion of the Minister an agreement made under Section 28.01
constitutes a material or substantial alteration of the rights or obligations
of either party hereto, the agreement will contain a declaration to that
effect and the Minister will cause the agreement to be laid before each House
of the Parliament of the said State for the twelve (12) sitting days of that
House next following the execution of the Agreement. If within that time
neither House passes a resolution disallowing the same, the agreement shall
have effect as and from the last day on which the agreement might have been
disallowed.
CLAUSE XXIX
SECTION 29.01 MINISTER MAY GRANT EXTENSION OF TIME
Notwithstanding any other provision of this Agreement the Minister may at the
request of the Joint Venturers from time to time extend or further extend any
period or vary or further vary any date referred to in this Agreement 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.
CLAUSE XXX
SECTION 30.01 NOTICES Any notice consent
or other writing required by this Agreement to be given or sent by the State
to the Joint Venturers will be deemed to have been duly given or sent if the
same be signed by the Minister or by a senior officer of the Civil Service of
the said State acting by the direction of the Minister and forwarded by
pre-paid post to the Joint Venturers at their principal place of business for
the time being in Perth in the said State or at the registered office or
address for the time being in the said State and any notice consent or other
writing required by this Agreement to be given or sent by the Joint Venturers
to the State will be deemed to have been duly sent if the same be executed by
the Joint Venturers or signed for and on behalf of the Joint Venturers by any
person or persons authorised by the Joint Venturers in that behalf or by the
solicitors for the time being appointed to act on their behalf (of whose
appointment the State has had previous notice) and forwarded by pre-paid post
to the Minister at his office in Perth in the said State and every such notice
consent or writing will be deemed to have been duly given or sent on the day
on which it would be delivered to the addressee in the ordinary course of
post.
CLAUSE XXXI
SECTION 31.01 STAMP DUTY EXEMPTION The
State will cause all of the following documents to be exempted from any stamp
duty which but for the operation of this Section would or might be chargeable
thereon —
(a) this
Agreement;
(b) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Joint Venturers or any associated company or permitted assignee
of the Joint Venturers any tenement lease easement licence or other right or
interest;
(c) any
assignment sublease or disposition (other than by way of mortgage or charge)
and any appointment to or in favour of the Joint Venturers or an associated
company of any interest right obligation power function or authority made
pursuant to the provisions of this Agreement.
SECTION 31.02 EXEMPTION TIME
LIMIT Section 31.01 will not apply to any instrument or
other document executed or made after Year 7.
SECTION 31.03 REFUND If prior to the
commencement date stamp duty has been assessed and paid on any instrument or
other document referred to in Section 31.01 the State will after the passing
of the enabling Act refund the stamp duty paid on any such instrument or other
document to the person by whom it was paid.
CLAUSE XXXII
SECTION 32.01 ARBITRATION Except where
otherwise specifically provided in this Agreement to the contrary any dispute
or difference between the parties in respect to any act matter or thing
arising out of or in connection with this Agreement or any agreed amendment or
variation thereof or addition thereto and particularly as to the construction
of this Agreement or any such amendment variation or addition or as to the
rights duties or liabilities of either party hereunder or thereunder or as to
any matter left to be agreed upon between the parties shall in default of
agreement between the parties be referred for decision to two (2) arbitrators
one to be appointed by each party and an umpire appointed by the arbitrators
before proceeding in the reference and every such arbitration shall be
conducted in accordance with the provisions of the Arbitration Act 1895 .
SECTION 32.02 ARBITRATOR MAY EXTEND
TIME If when hearing a reference made pursuant to this Clause
it shall appear or be made to appear to the arbitrators and the umpire that in
consequence of the reference having been made or because of any delay in the
issuing of the award made thereon either party to the reference had been or is
likely to be prevented from doing performing or carrying out within a time
prescribed by this Agreement some act matter or thing required by this
Agreement to be done performed or carried out by that party within that time
whereby the rights of that party hereunder have been or could be put in
jeopardy and the arbitrators and the umpire consider it reasonable in order to
protect such rights that the prescribed time be extended the arbitrators and
the umpire shall have and are hereby granted full power and authority for and
on behalf of the Minister on the application of the party concerned to grant
such extension of the prescribed time as they in the circumstances considered
reasonable and by their award to order accordingly.
CLAUSE XXXIII
SECTION 33.01 APPLICABLE LAW This
Agreement will be interpreted according to law for the time being in force in
Western Australia.
AND THEREFORE THE GUARANTOR AGREES WITH THE STATE as follows —
CLAUSE XXXIV
SECTION 34.01 GUARANTEE The Guarantor
will and hereby guarantees to the State the due and punctual performance by
the said Rhodes Ridge Mining Co. Ltd (hereinafter in this Clause referred to
as “the Subsidiary”) of all the covenants agreements and
obligations of the Subsidiary under this Agreement notwithstanding any time or
indulgence granted to the Subsidiary or any addition to or amendment of or
variation of the provisions of this Agreement or the cancellation thereof.
THE SCHEDULE
WESTERN AUSTRALIA
Mining Act 1904-1970
MINERAL LEASE
LEASE No. MINERAL FIELD
ELIZABETH THE SECOND, by the Grace of God of the United Kingdom, Australia and
Her other Realms and Territories Queen, Head of the Commonwealth, Defender of
the Faith.
TO ALL TO WHOM these presents shall come, GREETING: KNOW YE that —
WHEREAS by an Agreement made the day of
1972
between the Honourable JOHN TREZISE TONKIN, MLA the Premier of the State of
Western Australia acting for and on behalf of the said State and its
instrumentalities for the time being (hereinafter called “the
State”) of the first part RHODES RIDGE MINING CO. LTD a company
incorporated under the laws of the State of Delaware in the United States of
America and having its executive offices situate at the 55th Floor, 200 Park
Avenue, New York in the United States of America and registered in the State
of Western Australia and having its registered office in the said State
situate at the 2nd Floor, 7 Havelock Street, West Perth, HANCOCK PROSPECTING
PTY LIMITED a company incorporated in the State of Western Australia and
having its registered office at the 14th Floor, Lombard House, 251 Adelaide
Terrace, Perth in that State and WRIGHT PROSPECTING PTY LIMITED a company also
incorporated in the said State and having its registered office situate at the
14th Floor, Lombard House, 251 Adelaide Terrace, Perth aforesaid (in the said
Agreement and herein called the “Joint Venturers” which expression
shall where the context so admits or requires extend to and include the Joint
Venturers jointly and each of them severally their and each of their
successors and permitted assigns and appointees) of the second part and TEXAS
GULF INC. a company incorporated under the laws of the State of Texas in the
United States of America and having its executive offices situate at the 55th
Floor, 200 Park Avenue, New York aforesaid of the third part (being the
Agreement referred to in Section 2 of “ Iron Ore (Rhodes Ridge)
Agreement Authorization Act 1972 ”) the State agreed to cause to be
granted to the Joint Venturers a mineral lease of a portion or portions of the
land referred to in the said Agreement as the mining areas (being the land
hereinafter described)
AND WHEREAS the said Agreement was executed by the State pursuant to the
authority granted by the Iron Ore (Rhodes Ridge) Agreement Authorization Act
1972 and the same operates and takes effect as provided in the said Act.
NOW WE in consideration of the rents and royalties reserved by and of the
provisions of the said Agreement and in pursuance of the said Act DO BY THESE
PRESENTS GRANT AND DEMISE unto the Joint Venturers as tenants in common in the
following shares that is to say —
as to one undivided half share the said Rhodes Ridge Mining Co. Ltd. and as to
the remaining one undivided half share the said Hancock Prospecting Pty. Ltd.
and the said Wright Prospecting Pty. Ltd. as tenants in common in equal shares
—
subject to the said provisions ALL THOSE pieces and parcels of land
situated in the Mineral Field containing by
admeasurement acres (be the same more or less) and particularly
described and delineated on the plan in the Schedule hereto and all those
mines, veins, seams, lodes and deposits of iron ore in on or under the said
land (hereinafter called “the said mine”) together with all
rights, liberties, easements, advantages and appurtenances thereto belonging
or appertaining to a lessee of a mineral lease under the Mining Act 1904 ,
including all amendments thereof for the time being in force and all
regulations made thereunder for the time being in force (which Act and
regulations are hereinafter referred to as “the Mining Act”) or to
which the Joint Venturers are entitled under the said Agreement TO HOLD the
said land and mine and all and singular the premises hereby demised for the
full term
of twenty-one years from the day of
19 with the right to renew the same from time to time for further
periods each of twenty-one years as provided in (but subject to) the said
Agreement for the purposes of the said Agreement but upon and subject to the
terms covenants and conditions set out in the said Agreement and to the Mining
Act (as modified by the said Agreement) YIELDING and paying therefor the rent
and royalties as set out in the said Agreement. AND WE do hereby declare that
this lease is subject to the observance and performance by the Joint Venturers
of the following covenants and conditions, that is to say —
(1) The Joint
Venturers shall and will use the land bona fide exclusively for the purposes
of the said Agreement.
(2) Subject to the
provisions of the said Agreement the Joint Venturers shall and will observe,
perform, and carry out the provisions of the Mines Regulation Act 1946 , and
all amendments thereof for the time being in force and the regulations for the
being in force made thereunder and (subject to and as modified by the said
Agreement) those of the Mining Act in so far as the same affect or have
reference to this lease.
PROVIDED THAT this lease and any renewal thereof shall not be determined or
forfeited otherwise than under and in accordance with the provisions of the
said Agreement.
PROVIDED FURTHER that all mineral oil on or below the surface of the demised
land is reserved to Her Majesty with the right to Her Majesty or any person
claiming under her or lawfully authorised in that behalf to have access to the
demised land for the purpose of searching for and for the operations of
obtaining mineral oil in any part of the land under the provisions of the
Petroleum Act 1967 .
IN WITNESS whereof we have caused our Minister for Mines to affix his seal and
set his hand hereto at Perth in our said State of Western Australia and the
common seals of the Joint Venturers have been affixed hereto this
day of 19 .
IN WITNESS WHEREOF this Agreement has been executed the day and year first
hereinbefore written.
SIGNED by the said THE HONOURABLE JOHN TREZISE TONKIN, MLA in the presence of
— |
|
Minister for Development
and Decentralisation
Minister for Mines
THE COMMON SEAL OF RHODES RIDGE MINING CO. LTD was hereunto affixed with the
authority of a resolution of the Board of Directors and in the presence of
— Secretary |
|
THE COMMON SEAL OF HANCOCK PROSPECTING PTY LTD. was hereunto affixed with the
authority of a resolution of the Board of Directors and in the presence of
— Director Secretary |
|
THE COMMON SEAL OF WRIGHT PROSPECTING PTY LTD. was hereunto affixed with the
authority of a resolution of the Board of Directors and in the presence of
— Director Secretary |
|
THE COMMON SEAL OF TEXAS GULF INC. was hereunto affixed with the authority of
a resolution of the Board of Directors and in the presence of — Secretary |
|