Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT is made the 3rd day of July, 1985 BETWEEN:
THE HONOURABLE BRIAN THOMAS BURKE, M.L.A., Premier of the State of Western
Australia, acting for and on behalf of the said State and its
instrumentalities from time to time (hereinafter called “the
State”) of the one part and
WOODSIDE PETROLEUM DEVELOPMENT PTY. LTD. a company incorporated in Victoria
and having its registered office at Level 40,
385 Bourke Street, Melbourne
(hereinafter called “WPD”), WOODSIDE OIL LTD. a company
incorporated in Victoria and having its registered office at Level 40, 385
Bourke Street, Melbourne (hereinafter called “Woodoil”),
MID-EASTERN OIL LTD. a company incorporated in Victoria and having its
registered office at Level 40, 385 Bourke Street, Melbourne (hereinafter
called “Mid-Eastern”), SHELL DEVELOPMENT (AUSTRALIA) PROPRIETARY
LIMITED a company incorporated in Queensland and having its principal offices
in Victoria at 155 William Street, Melbourne (hereinafter called
“SDA”), BHP PETROLEUM PTY. LTD. (formerly called Hematite
Petroleum Pty. Ltd.) a company incorporated in Victoria and having its
registered office at 140 William Street, Melbourne (hereinafter called
“BHP Petroleum”), BP DEVELOPMENTS AUSTRALIA LTD. a company
registered in Western Australia as a foreign company and having its registered
office in that State at 1 Mount Street, Perth (hereinafter called
“BPDAL”) and CALIFORNIA ASIATIC OIL COMPANY a company registered
in Western Australia as a foreign company having its registered office in that
State care of Messrs. Jackson MacDonald and Co., 6 Sherwood Court, Perth
(hereinafter called “Calasiatic”) of the other part.
WHEREAS:
(a) the State of the one part entered into an
agreement (hereinafter called “the 1979 Agreement”) dated 27th
November, 1979 with WPD, Woodside, Mid-Eastern, North West Shelf Development
Pty. Ltd., BP Petroleum Development Australia Proprietary Limited and
Calasiatic of the other part (which agreement was ratified by and is scheduled
to the North West Gas Development (Woodside) Agreement Act 1979 );
(b) by Deed of Assignment dated 20th January, 1981
North West Shelf Development Pty. Ltd. assigned to SDA and BHP Petroleum in
equal shares the whole of its right title interest and obligations in and
under the 1979 Agreement with effect on and from 29th September, 1980;
(c) by endorsement dated 21st January, 1981 to the
said Deed of Assignment North West Shelf Development Pty. Ltd. was discharged
and released with effect on and from 29th September, 1980 from all its
obligations undertakings duties and liabilities arising out of the 1979
Agreement;
(d) by an agreement (hereinafter called “the
1982 Agreement”) dated 15th September, 1982 between the parties hereto
(other than BPDAL) and BP Petroleum Development Australia Proprietary Limited
entered into pursuant to the provisions of Clause 27 of the 1979 Agreement,
the 1979 Agreement was varied in certain respects;
(e) the 1979 Agreement as varied by the 1982
Agreement is hereinafter referred to as “the Principal Agreement”;
(f) by Deed of Assignment dated 15th September,
1983 BP Petroleum Development Australia Proprietary Limited assigned to BPDAL
the whole of its right title and interest in and under the Principal Agreement
with effect from that date;
(g) by Deed dated 4th May, 1984 BP Petroleum
Development Australia Proprietary Limited was released and discharged with
effect from 15th September, 1983 from all liabilities and obligations arising
under the Principal Agreement;
(h) in the light of a restructuring by the Joint
Venturers of the overall project to enable it to be conducted in two ventures
with different ownership of the ventures the parties hereto desire to vary the
Principal Agreement in the manner hereinafter set out.
NOW THIS AGREEMENT WITNESSETH:
1. Subject to the context the words and
expressions used in this Agreement have the same meanings respectively as they
have in and for the purpose of the Principal Agreement.
2. The State shall introduce and sponsor a Bill in
the Parliament of Western Australia to ratify this Agreement and endeavour to
secure its passage as an Act prior to 31st July, 1985.
3. The provisions of this Agreement other than
this Clause and Clause 2 shall not come into operation until the Bill referred
to in Clause 2 has been passed by the Parliament of Western Australia and
comes into operation as an Act.
4. The Principal Agreement is hereby varied as
follows:
(1) By deleting in the
statement of the names and addresses of the parties at the commencement of the
Principal Agreement the following —
“(hereinafter collectively called “the Joint Venturers” in
which term shall be included their respective successors and permitted assigns
and appointees)”.
(2) Clause 1 —
(a) in
the definition of “associated company”, by adding after “the
Netherlands” the following —
“Japan”;
(b) in
the definition of “Joint Ventures’ workforce”, by deleting
“the Joint Venturers’ activities” and substituting the
following —
“the activities
of the Joint Venturers or any of them”;
(c) in
the definition of “onshore facilities”, by inserting after
“treatment plant” the following —
“the port
facilities”;
(d) in
the definition of “treatment plant”, by inserting after
“this Agreement” the following —
“and which will
include facilities for the Domgas Venture, facilities for the LNG Venture and
facilities common to both Ventures as identified in proposals submitted by the
Joint Venturers under this Agreement”;
(e) by
inserting, in their appropriate alphabetical positions, the following
definitions —
“ “BHP
Petroleum” means BHP Petroleum Pty. Ltd. a company incorporated in
Victoria;
“BPDAL”
means BP Developments Australia Ltd. a company registered in Western Australia
as a foreign company;
“Calasiatic” means California Asiatic Oil Company a company
registered in Western Australia as a foreign company;
“Common
Property” means —
(i)
the onshore facilities use of which is shared by the
Domgas Joint Venturers and the LNG Joint Venturers; and
(ii)
those rights, conferred by this Agreement (including
rights in or under any lease, licence, easement, grant or other title or right
granted hereunder), which are vested in or exercisable by both the Domgas
Joint Venturers and the LNG Joint Venturers in connection with each of the
Domgas Venture and the LNG Venture;
“Domgas Joint
Venturers” means the following, each holding the initial percentage
interest in the Domgas Venture set opposite its name —
WPD 16-2/3%
Woodoil 25%
Mid-Eastern 8-1/3%
SDA 8-1/3%
BHP Petroleum 8-1/3%
BPDAL 16-2/3%
Calasiatic 16-2/3%
(as may be varied or
adjusted from time to time pursuant to Clause 26) and their respective
successors, permitted assigns and appointees;
“Domgas
Property” means —
(i)
the onshore facilities which are exclusively owned by the
Domgas Joint Venturers and the use of which is vested exclusively in the
Domgas Joint Venturers; and
(ii)
those rights, conferred by this Agreement (including
rights in or under any lease, licence, easement, grant or other title or right
granted hereunder) which are vested exclusively in or exercisable exclusively
by the Domgas Joint Venturers in connection with the Domgas Venture;
“Domgas
Venture” means the construction of Domgas Property the subject of
approved proposals and the use of Domgas Property and Common Property by the
Domgas Joint Venturers;
“Joint
Venturers” means both the Domgas Joint Venturers and the LNG Joint
Venturers unless the context otherwise requires;
“LNG Joint
Venturers” means the following, each holding the initial percentage
interest in the LNG Venture set opposite its name —
WPD 16-2/3%
Woodoil 25%
Mid-Eastern 8-1/3%
SDA 8-1/3%
BHP Petroleum 8-1/3%
BPDAL 16-2/3%
Calasiatic 16-2/3%
(as may be varied or
adjusted from time to time pursuant to Clause 6) and their respective
successors, permitted assigns and appointees;
“LNG
Property” means —
(i)
the onshore facilities which are exclusively owned by the
LNG Joint Venturers and the use of which is vested exclusively in the LNG
Joint Venturers; and
(ii)
those rights, conferred by this Agreement (including
rights in or under any lease, licence, easement, grant or other title or right
granted hereunder) which are vested exclusively in or exercisable exclusively
by the LNG Joint Venturers in connection with the LNG Venture;
“LNG
Venture” means the construction of LNG Property the subject of approved
proposals and the use of LNG Property and Common Property by the LNG Joint
Venturers;
“Mid-Eastern” means Mid-Eastern Oil Ltd. a company incorporated in
Victoria;
“SDA”
means Shell Development (Australia) Proprietary Limited a company incorporated
in Queensland;
“Ventures”
means the Domgas Venture and the LNG Venture and “Venture” means
each of the Domgas Venture and the LNG Venture individually;
“Woodoil”
means Woodside Oil Ltd. a company incorporated in Victoria;
“WPD”
means Woodside Petroleum Development Pty. Ltd. a company incorporated in
Victoria.”.
(3) Clause 7 subclause
(4) —
by inserting in
paragraph (a) after “liquefied natural gas” the following —
“liquefied
petroleum gas”.
(4) By inserting after
Clause 10 the following clause —
“10A. (1)
In respect of all proposals approved hereunder prior to
the 4th July, 1985 the Joint Venturers shall submit to the Minister within 60
days of that date proposals to vary such approved proposals so as to identify
responsibility for implementation and identify each matter addressed therein
and any right conferred by this Agreement in relation thereto as forming part
of one or more of —
(i)
Common Property;
(ii)
Domgas Property; or
(iii)
LNG Property,
and in the case of
Common Property defining the extent of the rights to use, and the rights to
ownership attaching to each such matter and right (expressed as a percentage
or otherwise as the Minister may require) and in the case of each of Common
Property, Domgas Property and LNG Property defining the rights,
responsibilities and obligations attaching thereto or arising in respect
thereof whether under the approved proposals or this Agreement and where any
such rights, responsibilities or obligations are not exclusive to any such
Property defining the extent to which (expressed as a percentage or otherwise
as the Minister may require) the same relate to such Property and where the
responsibility for the implementation thereof is with both the Domgas Joint
Venturers and the LNG Joint Venturers designating the extent of that
responsibility between them. The provisions of Clause 7 and Clause 8 (other
than subclauses (5) and (7)) where applicable shall mutatis mutandis apply to
proposals submitted pursuant to this subclause. The Domgas Joint Venturers
and/or the LNG Joint Venturers as the case may require shall implement the
decision of the Minister or an award made on an arbitration as the case may be
in accordance with the terms thereof.
(2) Any proposals
submitted to the Minister pursuant to the terms of this Agreement on or after
the 4th July, 1985 (other than pursuant to subclause (1) of this Clause) or
submitted prior to that date but not approved by that date shall be so
expressed as to identify responsibility for implementation and identify each
matter addressed therein and any right conferred by this Agreement in relation
thereto as forming part of one or more of —
(i)
Common Property;
(ii)
Domgas Property; or
(iii)
LNG Property,
and in the case of
Common Property defining the extent of the rights to use, and the rights to
ownership attaching to each such matter and right (expressed as a percentage
or otherwise as the Minister may require) and in the case of each of Common
Property, Domgas Property and LNG Property defining the rights,
responsibilities and obligations attaching thereto or arising in respect
thereof whether under the approved proposals or this Agreement and where any
such rights, responsibilities or obligations are not exclusive to any such
Property defining the extent to which (expressed as a percentage or otherwise
as the Minister may require) the same relate to such Property and where the
responsibility for the implementation thereof is with both the Domgas Joint
Venturers and the LNG Joint Venturers designating the extent of that
responsibility between them.
(3) The responsibility
for the implementation of approved proposals shall rest with the Joint
Venturers of the Venture to which the approved proposals relate or, if an
approved proposal or part thereof relates to both Ventures, responsibility for
implementation shall rest with the LNG Joint Venturers and the Domgas Joint
Venturers in the proportions set forth in the relevant approved
proposal.”.
(5) Clause 13 —
by deleting subclause
(12) and substituting the following —
“(12) The Joint
Venturers for or in connection with their use of the port shall pay such port
charges dues levies and other imposts as are payable pursuant to the
legislation applicable to the port authority or regulations made
thereunder.”.
(6) Clause 19
subclause (1) —
by deleting
“grant to the Joint Venturers” and substituting the following
—
“grant to the
Domgas Joint Venturers or the LNG Joint Venturers or both of them as the case
may require”.
(7) Clause 26 —
by deleting Clause 26
and substituting the following clause —
“26. (1)
Subject to the provisions of this Clause a Domgas Joint
Venturer may at any time —
(a)
assign or otherwise dispose of (whether by sale, dilution or otherwise) or
mortgage charge or sublet to each other or to an associated company as of
right, or to any other company or person with the consent of the Minister
(which consent shall not be unreasonably withheld) the whole or any part of
its rights hereunder to Domgas Property and Common Property; and
(b)
appoint as of right an associated company or with the consent of the Minister
any other company or person to exercise all or any of the powers functions and
authorities which are or may be conferred on that Domgas Joint Venturer in
common with the other Domgas Joint Venturers hereunder;
subject however in the
case of an assignment subletting or other disposition (whether by sale,
dilution or otherwise) or appointment to the assignee sublessee disponee or
appointee (as the case may be) executing in favour of the State (unless the
Minister otherwise determines) a deed of covenant in a form to be approved by
the Minister to comply with observe and perform the provisions hereof on the
part of the Domgas Joint Venturers to be complied with observed or performed
to the extent of the interest in the Domgas Property and the Common Property
so assigned sublet or disposed of or the subject of the appointment having
regard to the matter or matters the subject of such assignment subletting
disposition or appointment. Each such deed of covenant shall express the
proportionate percentages of each Domgas Joint Venturer in the Domgas Venture
immediately prior to and on completion of the assignment subletting
disposition or appointment as the case may be.
(2) Notwithstanding
anything contained or anything done under or pursuant to subclause (1) of this
Clause the Domgas Joint Venturers shall at all times during the currency of
this Agreement be and remain liable for the due and punctual performance and
observance of all the covenants and agreements on their part contained herein
in so far as they relate to Domgas Property or Common Property or to the
Domgas Venture (including any lease licence easement grant or other title the
subject of an assignment subletting disposition or appointment under subclause
(1) of this Clause) PROVIDED THAT the Minister shall release the Domgas Joint
Venturer so assigning or disposing of Domgas Property and Common Property to
the extent of the proportionate interest therein so assigned or disposed of
where he considers such release will not be contrary to the interests of the
State.
(3) Any assignment
subletting or other disposition (whether by sale, dilution or otherwise) or
appointment effected pursuant to subclause (1) of this Clause by a Domgas
Joint Venturer shall not take effect (unless the Minister is satisfied that
such assignment subletting or other disposition or appointment will not affect
the rights of the State Energy Commission or the performance of the
obligations of the assignor sublessor disponor or appointor under the relevant
agreement referred to in paragraph (a) of this subclause) until —
(a) that
Domgas Joint Venturer has assigned sublet or otherwise made over to the
assignee sublessee disponee or appointee (as the case may be) a corresponding
right title and interest in any agreement for the supply of natural gas to the
State Energy Commission to which that Domgas Joint Venturer may then be a
party; and
(b) the
assignee sublessee disponee or appointee (as the case may be) has executed in
favour of the State Energy Commission the deed of covenant required by the
relevant agreement to comply with observe and perform the provisions of such
agreement for the supply of natural gas to which it may then be a party.
(4) Subject to the
provisions of this Clause an LNG Joint Venturer may at any time —
(a)
assign or otherwise dispose of (whether by sale, dilution or otherwise) or
mortgage charge or sublet to each other or to an associated company as of
right, or to any other company or person with the consent of the Minister
(which consent shall not be unreasonably withheld) the whole or any part of
its rights hereunder to LNG Property and Common Property; and
(b)
appoint as of right an associated company or with the consent of the Minister
any other company or person to exercise all or any of the powers functions and
authorities which are or may be conferred on that LNG Joint Venturer in common
with the other LNG Joint Venturers hereunder;
subject however in the
case of an assignment subletting or other disposition (whether by sale,
dilution or otherwise) or appointment to the assignee, sublessee, disponee or
appointee (as the case may be) executing in favour of the State (unless the
Minister otherwise determines) a deed of convenant in a form to be approved by
the Minister to comply with, observe and perform the provisions hereof on the
part of the LNG Joint Venturers to be complied with observed or performed to
the extent of the interest in the LNG Property and the Common Property so
assigned sublet or disposed of or the subject of the appointment having regard
to the matter or matters the subject of such assignment subletting disposition
or appointment. Each such deed of covenant shall express the proportionate
percentages of each LNG Joint Venturer in the LNG Venture immediately prior to
and on completion of the assignment subletting disposition or appointment as
the case may be.
(5) Notwithstanding
anything contained or anything done under or pursuant to subclause (4) of this
Clause the LNG Joint Venturers shall at all times during the currency of this
Agreement be and remain liable for the due and punctual performance and
observance of all the covenants and agreements on their part contained herein
in so far as they relate to LNG Property or Common Property or to the LNG
Venture (including any lease licence easement grant or other title the subject
of an assignment subletting disposition or appointment under subclause (4) of
this Clause) PROVIDED THAT the Minister shall release the LNG Joint Venturer
so assigning or disposing of LNG Property and Common Property to the extent of
the proportionate interest therein so assigned or disposed of where he
considers such release will not be contrary to the interests of the
State.”.
(8) Clause 30 —
by deleting Clause 30
and substituting the following clause —
“30. (1)
In any of the following events namely if —
(a)
(i) the Domgas Joint
Venturers make default which the State considers material in the due
performance or observance of any of the covenants or obligations to the State
herein relating to the Domgas Venture or in any lease licence easement grant
or other title or document relating to the Domgas Venture granted or assigned
under this Agreement on their part to be performed or observed; or
(ii)
the Domgas Joint Venturers abandon or repudiate their
operations under this Agreement
and such default is
not remedied or such operations resumed within a period of 180 days after
notice is given by the State as provided in subclause (2) of this Clause or,
if the default (or the materiality thereof) or abandonment is referred to
arbitration, then within the period mentioned in subclause (3) of this Clause;
or
(b) the
Domgas Joint Venturers or any of them go into liquidation (other than a
voluntary liquidation for the purpose of reconstruction) and unless within 3
months from the date of such liquidation the interest of that Domgas Joint
Venturer is assigned to another Domgas Joint Venturer or to an assignee
approved by the Minister pursuant to Clause 26
the State may by
notice to the Domgas Joint Venturers determine this Agreement to the extent
only that it relates to Domgas Property and the interest of Domgas Joint
Venturers in Common Property.
(1A) In any of the
following events namely if —
(a)
(i) the LNG Joint Venturers
make default which the State considers material in the due performance or
observance of any of the covenants or obligations to the State herein relating
to the LNG Venture or in any lease licence easement grant or other title or
document relating to the LNG Venture granted or assigned under this Agreement
on their part to be performed or observed; or
(ii)
the LNG Joint Venturers abandon or repudiate their
operations under this Agreement
and such default is
not remedied or such operations resumed within a period of 180 days after
notice is given by the State as provided in subclause (2) of this Clause or,
if the default (or the materiality thereof) or abandonment is referred to
arbitration, then within the period mentioned in subclause (3A) of this
Clause; or
(b) the
LNG Joint Venturers or any of them go into liquidation (other than a voluntary
liquidation for the purpose of reconstruction) and unless within 3 months from
the date of such liquidation the interest of that LNG Joint Venturer is
assigned to another LNG Joint Venturer or to an assignee approved by the
Minister pursuant to Clause 26
the State may by
notice to the LNG Joint Venturers determine this Agreement to the extent only
that it relates to LNG Property and the interest of LNG Joint Venturers in
Common Property.
(2) The notice to be
given by the State in terms of subclause (1) or subclause (1A) of this Clause
shall specify the nature of the default or other ground so entitling the State
to exercise such right of determination and where appropriate and known to the
State the party or parties responsible therefor and shall be given to the
Domgas Joint Venturers or the LNG Joint Venturers (as the case may be) with a
copy to the other of them and all such assignees mortagees chargees and
disponees for the time being (as the case may be) of the Domgas Joint
Venturers or the LNG Joint Venturers’ said rights to or in favour of
whom or by whom an assignment mortgage charge or disposition has been effected
in terms of Clause 26 whose name and address for service of notice has
previously been notified to the State by the Domgas Joint Venturers or the
Joint Venturers (as the case may be) or any such assignee mortgagee chargee or
disponee.
(3) (a)
If the Domgas Joint Venturers contest the alleged
default abandonment or repudiation referred to in paragraphs (a) and (b) of
subclause (1) of this Clause the Domgas Joint Venturers shall within 60 days
after notice given by the State as provided in subclause (2) of this Clause
refer the matter in dispute to arbitration.
(b) The
Domgas Joint Venturers shall comply with the arbitration award within a
reasonable time to be fixed by the arbitration award PROVIDED THAT if the
question is decided against the Domgas Joint Venturers and the arbitrator
finds that there was a bona fide dispute and that the Domgas Joint Venturers
were not dilatory in pursuing the arbitration, the time for compliance with
the arbitration award shall not be less than 90 days from the date of such
award.
(3A) (a)
If the LNG Joint Venturers contest the alleged
default abandonment or repudiation referred to in paragraphs (a) and (b) of
subclause (1A) of this Clause the LNG Joint Venturers shall within 60 days
after notice given by the State as provided in subclause (2) of this Clause
refer the matter in dispute to arbitration.
(b) The
LNG Joint Venturers shall comply with the arbitration award within a
reasonable time to be fixed by the arbitration award PROVIDED THAT if the
question is decided against the LNG Joint Venturers and the arbitrator finds
that there was a bona fide dispute and that the LNG Joint Venturers were not
dilatory in pursuing the arbitration, the time for compliance with the
arbitration award shall not be less than 90 days from the date of such award.
(4) If the default
referred to in subclause (1) of this Clause shall not have been remedied after
receipt of the notice referred to in subclause (1) of this Clause or within
the time fixed by the arbitration award as aforesaid the State instead of
determining this Agreement to the extent only that it relates to Domgas
Property and the interest of the Domgas Joint Venturers in Common Property as
aforesaid because of such default may itself remedy such default or cause the
same to be remedied (for which purpose the State by agents workmen or
otherwise shall have full power to enter upon lands occupied by the Domgas
Joint Venturers and to make use of all plant machinery equipment and
installations thereon to the extent that the Domgas Joint Venturers are or
were entitled to use that plant machinery equipment and installations) and the
actual costs and expenses incurred by the State in remedying or causing to be
remedied such default shall be a debt payable by the Domgas Joint Venturers to
the State on demand.
(4A) If the default
referred to in subclause (1A) of this Clause shall not have been remedied
after receipt of the notice referred to in subclause (1A) of this Clause or
within the time fixed by the arbitration award as aforesaid the State instead
of determining this Agreement to the extent only that it relates to LNG
Property and the interest of LNG Joint Venturers in Common Property as
aforesaid because of such default may itself remedy such default or cause the
same to be remedied (for which purpose the State by agents workmen or
otherwise shall have full power to enter upon lands occupied by the LNG Joint
Venturers and to make use of all plant machinery equipment and installations
to the extent that the LNG Joint Venturers are or were entitled to use that
plant machinery equipment and installations) and the actual costs and expenses
incurred thereon by the State in remedying or causing to be remedied such
default shall be a debt payable by the LNG Joint Venturers to the State on
demand.
(5) Notwithstanding
the provisions of this Clause, the determination by the State Energy
Commission of any agreement for the supply of natural gas between the Domgas
Joint Venturers or any of them and the State Energy Commission, by reason of
the established default of the Domgas Joint Venturers or any of them under
such agreement, shall be deemed to be a breach of this Agreement relating to
the Domgas Venture entitling the State to determine this Agreement to the
extent only that it relates to Domgas Property and the interest of the Domgas
Joint Venturers in Common Property forthwith by notice to the Domgas Joint
Venturers. The State shall cause a copy of such notice to be served upon the
LNG Joint Venturers and all such assignees mortgages chargees and disponees
for the time being of the Domgas Joint Venturers’ said rights to or in
favour of whom or by whom an assignment mortgage charge or disposition has
been effected in terms of Clause 26 whose name and address for service of
notice has previously been notified to the State by the Domgas Joint Venturers
or any such assignee mortgagee chargee or disponee.
(6) Subject to the
provisions of Clause 31, the determination of this Agreement to the extent
only that it relates to the Domgas Venture shall not prejudice the rights or
obligations of the State and the LNG Joint Venturers in relation to the LNG
Venture and the determination of this Agreement to the extent only that it
relates to the LNG Venture shall not prejudice the rights or obligations of
the State and the Domgas Joint Venturers in relation to the Domgas
Venture.”.
(9) Clause 31 —
(a)
subclause (1) —
by deleting subclause
(1) and substituting the following subclauses —
“(1) On
cessation or determination of this Agreement in relation to the Domgas Venture
only —
(a)
except as otherwise agreed by the Minister and subject to subclause (4) of
this Clause the rights of the Domgas Joint Venturers to in or under this
Agreement relating to the Domgas Venture and the rights of the Domgas Joint
Venturers or of any assignee of theirs or any mortgagee to Domgas Property or
Common Property shall thereupon cease and determine but without prejudice to
the liability of either of the parties hereto in respect of any antecedent
breach or default under this Agreement relating to the Domgas Venture or in
respect of any indemnity given hereunder relating to the Domgas Venture;
(b) the
Domgas Joint Venturers shall forthwith pay to the State all moneys which may
then have become payable or accrued due and which relate to the Domgas
Venture;
(c) the
Domgas Joint Venturers shall pay to the relevant body referred to in subclause
(12) of Clause 13, subclause (3) of Clause 16, subclause (6) of Clause 17 and
subclause (2) of Clause 18, such amounts as will enable the relevant body to
repay any unpaid special borrowings which relate to the Domgas Venture
together with interest thereon and any other charges in accordance with the
terms thereof which would otherwise have been recouped by the relevant body by
way of charges and which relate to the Domgas Venture;
(d) save
as aforesaid and as otherwise provided in this agreement neither of the
parties hereto shall have any claim against the other of them with respect to
any matter or thing in or arising out of this Agreement relating to the Domgas
Venture.
(1A) On cessation or
determination of this Agreement in relation to the LNG Venture only —
(a)
except as otherwise agreed by the Minister and subject to subclause (4A) of
this Clause the rights of the LNG Joint Venturers to in or under this
Agreement relating to the LNG Venture and the rights of the LNG Joint
Venturers or of any assignee of theirs or any mortgagee to LNG Property or
Common Property shall thereupon cease and determine but without prejudice to
the liability of either of the parties hereto in respect of any antecedent
breach or default under this Agreement relating to the LNG Venture or in
respect of any indemnity given hereunder relating to the LNG Venture;
(b) the
LNG Joint Venturers shall forthwith pay to the State all moneys which may then
have become payable or accrued due and which relate to the LNG Venture;
(c) the
LNG Joint Venturers shall pay to the relevant body referred to in subclause
(12) of Clause 13, subclause (3) of Clause 16, subclause (6) of Clause 17 and
subclause (2) of Clause 18, such amounts as will enable the relevant body to
repay any unpaid special borrowings which relate to the LNG Venture together
with interest thereon and any other charges in accordance with the terms
thereof which would otherwise have been recouped by the relevant body by way
of charges and which relate to the LNG Venture;
(d) save
as aforesaid and as otherwise provided in this Agreement neither of the
parties hereto shall have any claim against the other of them with respect to
any matter or thing in or arising out of this Agreement relating to the LNG
Venture.”;
(b)
subclause 2 —
by inserting after
“this Agreement” the following —
“in its
entirety”;
(c)
subclause 3 —
by inserting after
“this Agreement” the following —
“in its
entirety”
(d) by
inserting after subclause (3) the following subclauses —
“(4) Subject to
the provisions of subclauses (5) and (6) of this Clause upon the cessation or
determination of this Agreement to the extent that it relates to the Domgas
Venture only, except as otherwise determined by the Minister all Domgas
Property shall become and remain the absolute property of the State without
the payment of any compensation or consideration to the Domgas Joint Venturers
or any other party and freed and discharged from all mortgages and other
encumbrances and the Domgas Joint Venturers shall 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
subclause.
(4A) Subject to the
provisions of subclauses (5A) and (6A) of this Clause upon the cessation or
determination of this Agreement to the extent that it relates to the LNG
Venture only, except as otherwise determined by the Minister all LNG Property
shall become and remain the absolute property of the State without the payment
of any compensation or consideration to the LNG Joint Venturers or any other
party and freed and discharged from all mortgages and other encumbrances and
the LNG Joint Venturers shall 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 subclause.
(5) In the event of
the Domgas Joint Venturers immediately prior to the cessation or determination
of this Agreement to the extent that it relates to the Domgas Venture only or
subsequently thereto desiring to remove any of the fixed or movable plant and
equipment forming part of Domgas Property or any part thereof from any part of
the land occupied by them at the date of such cessation or determination the
Domgas Joint Venturers shall give to the State notice of such desire and
thereby shall grant to the State the right or option exercisable within 3
months thereafter to purchase in situ such fixed or movable plant and
equipment or any part thereof at a fair valuation to be agreed between the
parties or failing agreement determined by arbitration hereunder.
(5A) In the event of
the LNG Joint Venturers immediately prior to the cessation or determination of
this Agreement to the extent that it relates to the LNG Venture only or
subsequently thereto desiring to remove any of the fixed or movable plant and
equipment forming part of LNG Property or any part thereof from any part of
the land occupied by them at the date of such cessation or determination the
LNG Joint Venturers shall give to the State notice of such desire and thereby
shall grant to the State the right or option exercisable within 3 months
thereafter to purchase in situ such fixed or movable plant and equipment or
any part thereof at a fair valuation to be agreed between the parties or
failing agreement determined by arbitration hereunder.
(6) Upon determination
of this Agreement to the extent that it relates to the Domgas Venture, the
interest of the Domgas Joint Venturers in Common Property (in this subclause
referred to as “Domgas Common Property”) shall thereupon vest in
the LNG Joint Venturers and all obligations and liabilities of the Domgas
Joint Venturers under or imposed pursuant to this Agreement to the extent that
they relate to Domgas Common Property shall be assumed by the LNG Joint
Venturers subject to the LNG Joint Venturers granting to the State or its
nominee such rights to the use of Domgas Common Property as would enable the
State or its nominee to receive and process sufficient natural gas to meet the
requirements for consumption within the State subject to the quantity and
rates of withdrawal priorities expressed in Clause 44A, the State or its
nominee paying a reasonable share of the operating costs of the Common
Property (relative to the respective uses thereof by the State or its nominee
and the LNG Joint Venturers) as agreed from time to time between the LNG Joint
Venturers and the Minister or falling agreement as determined by arbitration
hereunder.
(6A) Upon
determination of this Agreement to the extent that it relates to the LNG
Venture, the interest of the LNG Joint Venturers in Common Property (in this
subclause referred to as “LNG Common Property”) shall thereupon
vest in the Domgas Joint Venturers and all obligations and liabilities of the
LNG Joint Venturers under or imposed pursuant to this Agreement to the extent
that they relate to LNG Common Property shall be assumed by the Domgas Joint
Venturers subject to the Domgas Joint Venturers granting to the State or its
nominee such rights to the use of LNG Common Property as would enable the
State or its nominee to receive and process sufficient natural gas to operate
the LNG Property subject to the quantity and rates of withdrawal priorities
expressed in Clause 44A — the State or its nominee paying a reasonable
share of the operating costs of the Common Property (relative to the
respective uses thereof by the State or its nominee and the Domgas Joint
Venturers) as agreed from time to time between the Domgas Joint Venturers and
the Minister or falling agreement as determined by arbitration
hereunder.”.
(10) Clause 34 —
by deleting Clause 34
and substituting the following clause —
“34. (1)
Unless the parties otherwise agree the Domgas Joint
Venturers shall indemnify and keep indemnified the State and its servants
agents and contractors in respect of all actions suits claims demands or costs
of third parties arising out of or in connection with any work carried out by
or on behalf of the Domgas Joint Venturers pursuant to this Agreement in
relation to the Domgas Venture or arising out of or in connection with the
construction maintenance or use by the Domgas Joint Venturers or their
servants agents contractors or assignees of Domgas Property and Common
Property, PROVIDED THAT subject to the provisions of any other relevant Act
such indemnity shall not apply in circumstances where the State, its servants,
agents, or contractors are negligent in carrying out work for the Domgas Joint
Venturers in relation to the Domgas Venture, Domgas Property or Common
Property pursuant to this Agreement.
(2) Unless the parties
otherwise agree the LNG Joint Venturers shall indemnify and keep indemnified
the State and its servants agents and contractors in respect of all actions
suits claims demands or costs of third parties arising out of or in connection
with any work carried out by or on behalf of the LNG Joint Venturers pursuant
to this Agreement in relation to the LNG Venture or arising out of or in
connection with the construction maintenance or use by the LNG Joint Venturers
or their servants agents contractors or assignees of LNG Property and Common
Property, PROVIDED THAT subject to the provisions of any other relevant Act
such indemnity shall not apply in circumstances where the State, its servants,
agents, or contractors are negligent in carrying out work for the LNG Joint
Venturers in relation to the LNG Venture, LNG Property or Common Property
pursuant to this Agreement.”.
(11) Clause 37
subclause (1) —
by deleting paragraph
(f) and substituting the following paragraph —
“(f) any
agreement or instrument relating to the sale of natural gas to which the State
Energy Commission is a party, including without limiting the generality
thereof —
(i)
each of the heads of agreement dated 3rd July, 1985
between the respective Domgas Joint Venturers and the State Energy Commission;
(ii)
the deed of amendment, incremental gas pricing agreement
and Pilbara purchase agreement to be executed pursuant to each such heads of
agreement; and
(iii)
any purchase notice given pursuant to any such Pilbara
purchase agreement”.
(12) Clause 40 —
by deleting Clause 40
and substituting the following clause —
“40.
(a) The liability of the Domgas Joint
Venturers under this Agreement shall be separate from the liability of the LNG
Joint Venturers under this Agreement and vice versa.
(b) In
respect of each of the Domgas Venture and the LNG Venture the liability to the
State of the Domgas Joint Venturers and the LNG Joint Venturers respectively
shall be separate and shall be limited to the percentage proportion set
opposite its name in Clause 1 as adjusted or varied consequent upon any
assignment disposition or appointment pursuant to Clause 26 and any release
granted by the Minister pursuant to that Clause.
(c)
Where a liability under this Agreement relates to both Ventures the extent of
the liability of the Domgas Joint Venturers and the LNG Joint Venturers
respectively to the State shall be in accordance with the proportions as set
forth in the relevant approved proposal.”.
(13) Clause 42 —
(a) by
deleting “the Joint Venturers” and substituting the following
—
“the Domgas
Joint Venturers”;
(b) by
deleting “pursuant to” and substituting the following —
“subject
to”;
(c) by
deleting paragraph (a) and substituting the following paragraph —
“(a) to market
gas in the Pilbara to major industrial customers whose annual average
consumption exceeds 1.1 million megajoules per day in circumstances where the
total demand for gas in the Pilbara exceeds the quantities available to the
State Energy Commission under such gas agreements for use in the
Pilbara;”.
(14) Clause 44 —
by deleting “the
Joint Venturers” and substituting the following —
“the Domgas
Joint Venturers”.
(15) By inserting
after Clause 44 the following clause —
“44A. The Joint
Venturers shall at all times during the term of this Agreement and any
extensions thereof so exercise the rights conferred upon or vested in them by
this Agreement and shall so operate or make use of all onshore facilities so
as to ensure the priorities and rates of withdrawal provided for or to be
agreed or determined pursuant to Articles V and VII of separate agreements
made 30th September, 1980 as amended to 4th July, 1985 between certain of the
Joint Venturers and the State Energy Commission are observed.”.
(16) Clause 46 —
by deleting Clause 46
and substituting the following clause —
“46. (1)
Subject to the provisions of Clause 30 and this Clause,
this Agreement shall expire on 31st December, 2025.
(1a) The Joint
Venturers shall keep the Minister informed of their intended arrangements for
the utilisation of natural gas processed through the onshore facilities during
the years 2010 through 2025 and before entering into any arrangements for the
sale, use, supply or export of such natural gas during those years the Joint
Venturers and the Minister shall consult and reach agreement on the
requirements in the State and the manner in which they will be met during
those years having regard to requirements for natural gas which the Joint
Venturers could make available on arms length commercial terms.
(2) The Domgas Joint
Venturers or, if permitted by the Minister the LNG Joint Venturers or both the
Domgas Joint Venturers and the LNG Joint Venturers may, provided they are not
in default of their obligations under this Agreement, give notice to the
Minister not later than 30th September, 2025, of —
(a)
their desire to have the provisions of this Agreement extended for such period
not exceeding 21 years as may be nominated in such notice; and
(b)
their arrangements for utilisation of natural gas during such period.
(3) The Minister may,
if he agrees with the arrangements of the Domgas Joint Venturers or the LNG
Joint Venturers or both of them under paragraph (b) of subclause (2) of this
Clause, extend the term of this Agreement so far as it relates to the Venture
or Ventures the subject of such arrangements accordingly.”.
5. If prior to the date on which the Bill referred
to in Clause 2 to ratify this Agreement is passed as an Act stamp duty has
been assessed and paid on any instrument or other document referred to in
Clause 37 of the Principal Agreement (as amended by this Agreement) the State
when such a Bill is passed as an Act shall on demand refund any stamp duty
paid on any such instrument or other document to the person who paid the same.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
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SIGNED by the said |
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THE COMMON SEAL of WOODSIDE PETROLEUM DEVELOPMENT PTY. LTD. was hereunto
affixed by authority of the Board of Directors in the presence of: |
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THE COMMON SEAL of |
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THE COMMON SEAL of MID-EASTERN OIL LTD. |
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SIGNED, SEALED AND DELIVERED by |
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B. D. SOUTH. |
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SIGNED, SEALED AND |
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R. HARRISON. |
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THE COMMON SEAL of |
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[C.S.] RODNEY CHASE. KEN JAMESON. |
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SIGNED SEALED AND |
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C. A. JORDAN. |
[Schedule 2 inserted: No. 45 of 1985 s. 6.]
