Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading inserted: No. 3 of 2014 s. 7.]
2013
THE STATE OF WESTERN AUSTRALIA
and
ALINTA DEWAH PTY LTD
ACN 083 051 950
ALINTA DEWAP PTY LTD
ACN 058 070 689
PILBARA ENERGY PROJECT AGREEMENT 1993
TERMINATION AGREEMENT
[Solicitor’s details]
THIS AGREEMENT is made this 8 th day of NOVEMBER 2013
BETWEEN
THE HONOURABLE COLIN JAMES BARNETT , MEc., M.L.A., Premier of the State of
Western Australia, acting for and on behalf of the said State and its
instrumentalities from time to time (hereinafter called “ the State
”) of the first part,
ALINTA DEWAH PTY LTD ACN 083 051 950 of Level 13, 1 William Street, Perth,
Western Australia and ALINTA DEWAP PTY LTD ACN 058 070 689 of Level 13, 1
William Street, Perth, Western Australia (hereinafter called " Joint Venturers
" in which term shall be included their successors and permitted assigns) of
the second part.
WHEREAS:
A. The State and the Joint Venturers are the
parties to the agreement dated 30 November 1993, which agreement was ratified
by the Pilbara Energy Project Agreement Act 1994 (WA), as varied by
agreements dated 7 June 1994, 16 October 1995 and 31 March 1998. The first
mentioned agreement as so varied is referred to in this Agreement as " the
Principal Agreement ".
B. The State and the Joint Venturers wish to
terminate the Principal Agreement in the manner and on the terms set out in
this Agreement.
NOW THIS AGREEMENT WITNESSES:
1. Definitions
In this Agreement subject to the context:
"Deed of Assignment and Covenant 1999" means the
document entitled "Deed of Assignment, Covenant and Acknowledgment in relation
to the Pilbara Energy Project State Agreement" dated 4 February 1999 between
the State, the PEPA Minister, Duke Energy WA Holdings Pty Ltd (now known as
Alinta DEWAH Pty Ltd), BHP Minerals Pty Ltd, Duke Energy WA Power Pty Ltd (now
known as Alinta DEWAP Pty Ltd) and Duke Energy Australian Holdings Pty Ltd
(now known as Alinta EH Pty Ltd);
"EP Act" means the
Environmental Protection Act 1986 (WA);
"Iron Ore Beneficiation Termination Agreement"
means the agreement ratified by and scheduled within Part 7 of the
Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Act 2011
(WA);
"Land Act Minister" means the Minister for Lands,
a body corporate under section 7 of the Land Administration Act;
"Land Administration Act" means the
Land Administration Act 1997 (WA);
"laws relating to native title" means laws
applicable from time to time in Western Australia in respect of native title
and includes the Native Title Act 1993 (Cth);
"Mining Act" means the Mining Act 1978 (WA);
"Minister" means the Minister in the Government of
the State for the time being responsible for the administration of the Act to
ratify this Agreement and pending the passing of that Act means the Minister
for the time being designated in a notice from the State to the Joint
Venturers and includes the successors in office of the Minister;
"Minister for Mines" means the Minister in the
Government of the State for the time being responsible for the administration
of the Mining Act ;
"Newman Facilities" means the power station
facilities constructed under or pursuant to the Principal Agreement at Newman
comprising:
(a) the
turbines;
(b) the
electrical switchyard, including associated on-site electrical feeders;
(c) the
gas receival facility;
(d) the
diesel unloading and forwarding pumps and associated diesel storage tanks;
(e) the
oily water treatment system and associated evaporation pond; and
(f)
associated plant, equipment and infrastructure, including gas distribution
infrastructure,
each at the date of this Agreement located upon
Mineral Lease 244SA and contained within the boundaries of the area shown in
Plan D of Schedule A;
"Operative Date" has the meaning given in clause
3(2);
"PEPA Minister" means the Minister in the
Government of the State for the time being responsible for the administration
of the Principal Agreement;
"PEPA Titles" means the following titles granted
pursuant to the Principal Agreement and continuing as at the Operative Date:
(a)
Crown lease L371264 in respect of the Port Hedland power station; and
(b) any
Crown easement granted in respect of the Port Hedland Transmission Lines;
"Port Hedland Facilities" means the power station
facilities constructed under or pursuant to the Principal Agreement:
(a) at
Port Hedland, comprising;
(i)
the Port Hedland power station, at the date of this
Agreement on land the subject of lot 255 on deposited plan 192056 contained
within Crown land volume 3104 folio 330 and being land the subject of Crown
lease L371264 in favour of the Joint Venturers, comprising:
(A) the turbines;
(B) the electrical switchyard, including
associated on-site electrical feeders;
(C) the gas receival facility;
(D) the diesel unloading and forwarding
pumps and associated diesel storage tanks;
(E) the oily water treatment system and
associated evaporation pond; and
(F) associated plant, equipment and
infrastructure, including gas distribution infrastructure,
( "Port Hedland power station" ) and contained
within the boundaries of the area shown in Plan A of Schedule A;
(ii)
the 66kV transmission line from the Port Hedland power
station to Boodarie on the area the subject of the proposed easement shown in
deposited plans 30122, 32820, 33649 and 400582;
(iii)
the 66kV transmission line from the Port Hedland power
station to the Wedgefield substation on the area the subject of the proposed
easement shown in deposited plans 219101 and 400582; and
(iv)
the 66kV transmission line from the Port Hedland power
station to the Murdoch Drive substation on the area the subject of the
proposed easement shown in deposited plans 219101 and 400582;
(together, "Port
Hedland Transmission Lines" ) and contained within the boundaries of the area
shown in Plan B of Schedule A; and
(b) at
Boodarie near Port Hedland, comprising:
(i)
the turbines;
(ii)
the electrical switchyard, including associated on-site
electrical feeders;
(iii)
the gas receival facility; and
(iv)
associated plant, equipment and infrastructure, including
gas distribution infrastructure;
located at the date of
this Agreement upon General Purpose Leases 45/78, 45/79, 45/89, 45/90, and
45/102 and contained within the boundaries of the areas shown in Plan C of
Schedule A ( "Boodarie power station" ); and
(v)
the underground electrical feeders connecting the
turbines referred to in paragraph (b)(i) above with the electrical switchyard
referred to in paragraph (b)(ii) above as shown in Plan B of Schedule A;
"this Agreement" , "hereof" and "hereunder" refer
to this Agreement, whether in its original form or as from time to time added
to, varied or amended.
2. Interpretation
(1) In this Agreement:
(a)
clause headings do not affect interpretation or construction;
(b)
words in the singular shall include the plural and words in the plural shall
include the singular according to the requirements of the context;
(c) one
gender includes the other genders;
(d) a
covenant or agreement by more than one person binds, and is enforceable
against, those persons jointly and each of them severally;
(e)
reference to an Act includes the amendments to that Act for the time being in
force and also any Act passed in substitution therefor or in lieu thereof and
the regulations for the time being in force thereunder;
(f)
reference in this Agreement to any other document includes that document as
from time to time added to, varied or amended and notwithstanding any change
in the identity of the parties;
(g)
reference to a clause or schedule is a reference to a clause in or schedule to
this Agreement, and a reference to a subclause or paragraph is a reference to
the subclause of the clause or paragraph of the clause or subclause as the
case may be in, or in relation to, which the reference is made;
(h)
"including" means "including, but not limited to"; and
(i)
reference to a "person" includes a body corporate.
(2) Nothing in this
Agreement shall be construed to exempt the State or the Joint Venturers from
compliance with or to require the State or the Joint Venturers to do anything
contrary to any law relating to native title or any lawful obligation or
requirement imposed on the State or the Joint Venturers as the case may be
pursuant to any law relating to native title. The provisions of this Agreement
shall not operate so as to require the State or the Land Act Minister to grant
or vary, or cause to be granted or varied, any lease licence or other right or
title until all processes necessary (if any) under any laws relating to native
title to enable that grant or variation to proceed, have been completed.
(3) Nothing in this
Agreement shall 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 its activities under this Agreement that may
be made by or under the EP Act.
3. Ratification and operation
(1) This Agreement,
other than this clause and clauses 1 and 2, does not come into operation
except in accordance with subclause (2).
(2) This Agreement,
other than this clause and clauses 1 and 2, comes into operation on the day on
which it is ratified by an Act of the Parliament of Western Australia ("
Operative Date ") unless, before that day, it terminates under subclauses (4)
or (5).
(3) The State must
introduce in the Parliament of Western Australia before 30 April 2014, or a
later date agreed between the parties to this Agreement, a Bill to ratify this
Agreement and must endeavour to secure its passage as an Act.
(4) If by 30 September
2014 this Agreement has not been ratified by an Act of the Parliament of
Western Australia then, unless the parties to this Agreement otherwise agree,
this Agreement terminates on that day and no party hereto will have any claim
against any other party hereto with respect to any matter or thing arising out
of, done, performed, or omitted to be done or performed under this Agreement.
(5) The parties agree
that, if the Principal Agreement is otherwise determined in accordance with
its provisions on a day prior to the Operative Date, then this Agreement shall
also terminate on and from that day and no party hereto will have any claim
against any other party hereto with respect to any matter or thing arising out
of, done, performed, or omitted to be done or performed under this Agreement.
4. Termination of Principal Agreement
(1) Subject to
subclause (2), the Principal Agreement is hereby terminated with effect on and
from the Operative Date and, except as otherwise provided in this Agreement,
neither the State nor the Joint Venturers shall have any claim against the
other with respect to any matter or thing in or arising out of the Principal
Agreement.
(2) Notwithstanding
subclause (1):
(a) the
Joint Venturers shall remain liable for any antecedent breach or default under
the Principal Agreement and in respect of any indemnity given under the
Principal Agreement; and
(b)
clause 14 of the Principal Agreement shall be deemed to subsist in its
application to the Port Hedland Facilities and the Newman Facilities
respectively until the earlier of:
(i)
the grant of electricity generation and electricity
transmission licences or integrated regional licences under the
Electricity Industry Act 2004 (WA) in relation to the Port Hedland Facilities
and the Newman Facilities (as the case may be); or
(ii)
the date that is 12 months after the Operative Date, or
such later date agreed by the Minister (but not exceeding 15 months after the
Operative Date).
(3) (a)
Subject to subclause (2) and on and from the
Operative Date:
(i)
the Joint Venturers as the holders of the PEPA Titles,
the Port Hedland Facilities and the Newman Facilities shall cease to have the
benefit of any rights and privileges conferred by the Principal Agreement; and
(ii)
each PEPA Title shall otherwise continue in force,
subject to its terms and conditions and under and subject to the provisions of
the Land Administration Act , for a period not exceeding 3 months after the
Operative Date (or such greater period agreed by the Minister) pending the
variation of its terms and conditions as contemplated by paragraph (b).
(b) The
State acknowledges that the Joint Venturers intend to make application for the
grant of titles and, having regard to paragraph (a), variation of the PEPA
Titles under and in accordance with the Land Administration Act and subject
to the interests and rights of third parties and the obligations of the State
to third parties, and to the extent relevant having regard to clause 4(3)(e)
of the Iron Ore Beneficiation Termination Agreement, for such periods and on
such terms and conditions including commercial rentals and renewal rights as
the Land Act Minister may consider reasonable having regard to the
requirements of the Joint Venturers in respect of the Port Hedland Facilities
and the Newman Facilities. As at the date of this Agreement, the parties
anticipate the Joint Venturers making the applications described in column 2
of the table to Schedule B in respect of the grant or variation, on or after
the Operative Date, of titles relating to the facilities described in column 1
of that table.
(c) The
State further acknowledges that the Joint Venturers intend to make application
for the grant of easements for the construction and operation of roads to
access the Boodarie power station and the Newman power station respectively
under and in accordance with the Land Administration Act and subject to the
interests and rights of third parties and the obligations of the State to
third parties, and to the extent relevant having regard to clause 4(3)(e) of
the Iron Ore Beneficiation Termination Agreement, for such periods and on such
terms and conditions including commercial easement fees as the Land Act
Minister may consider reasonable.
(d) If
the registered holders of Mineral Lease 244SA and Crown lease K858923
surrender a portion of the land (including if such surrender is limited to
depth) that is subject to those leases for the purpose of facilitating the
grant to the Joint Venturers of a lease under section 79 of the Land
Administration Act for the Newman Facilities as contemplated by paragraph (b)
above, the State shall, notwithstanding the terms of section 19 of the
Mining Act, cause the Minister for Mines to exempt that portion of the land
from mining under that section for the term of that lease (including as
renewed or extended).
(4) (a)
On and from the Operative Date the Joint Venturers
will indemnify and keep indemnified the State and its employees, 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 the
Joint Venturers pursuant to the Principal Agreement or relating to their
operations under the Principal Agreement or arising out of or in connection
with the construction, maintenance or use by the Joint Venturers or their
employees, agents, contractors or assignees of the Joint Venturers' works or
services the subject of the Principal Agreement or the plant, apparatus or
equipment installed in connection with the Principal Agreement.
(b) The
indemnity in paragraph (a) shall remain in force for a period ending on the
date which is 20 years after:
(i)
the date agreed between the State and the Joint
Venturers; or
(ii)
if the parties fail to agree a date under subparagraph
(i), the date determined by the State,
as being the date of
cessation of all operations (including as expanded or otherwise modified)
originally established under and pursuant to the Principal Agreement
(including the Port Hedland Facilities and the Newman Facilities).
(c) The
Joint Venturers will indemnify and keep indemnified the State and its
employees, agents and contractors in respect of all actions, suits, claims,
demands or costs of third parties arising out of or in connection with any
works or activities of the Joint Venturers or their employees, agents or
contractors or assignees on and subsequent to the Operative Date relating to
operations (including as expanded or otherwise modified) that were originally
established under or pursuant to the Principal Agreement (including the Port
Hedland Facilities and the Newman Facilities).
(d) The
indemnity in paragraph (c) remains in force for a period ending on the same
date as the indemnity in paragraph (a).
5. Release of State and PEPA Minister from Deed of
Assignment and Covenant 1999
On and from the
Operative Date, the Joint Venturers release the State and the PEPA Minister
from any obligation, liability or claim relating to the acknowledgement and
agreement of the State and the PEPA Minister set out in clause 6 of the Deed
of Assignment and Covenant 1999.
6. Assignment
A Joint Venturer may
only assign, mortgage or charge or otherwise dispose of its rights and
obligations under this Agreement with the consent of the Minister and such
consent may be given subject to conditions.
7. Applicable Law
This Agreement is to
be interpreted according to the law for the time being in force in the State
of Western Australia.
SCHEDULE A
PORT HEDLAND FACILITIES AND NEWMAN FACILITIES
Plan A
Port Hedland power station 
Plan B
Port Hedland Transmission Lines 
Plan C
Boodarie power station
Plan D
Newman Facilities
SCHEDULE B
ANTICIPATED TENURE FOR FACILITIES
|
Port Hedland Facilities |
Tenure Application under Land Administration Act (and applicable section
reference) |
|
At Port Hedland | |
|
Port Hedland power station |
Variation to Crown Lease (s79) |
|
Port Hedland Transmission Lines |
Crown Easement (s144) or Variation of Easement (s144) if any Crown easement is
granted in respect of the Port Hedland Transmission Lines as at the Operative
Date. |
|
At Boodarie | |
|
Boodarie power station |
Crown Lease (s79) |
|
Newman Facilities | |
|
Newman power station |
Crown Lease (s79) |
EXECUTED as a deed.
SIGNED by THE HONOURABLE )
COLIN JAMES BARNETT
) [Signature]
in the
presence of: )
[Signature]
Signature of witness
SCOTT FRY
Name of witness
EXECUTED by ALINTA DEWAH )
PTY LTD ACN 083 051 950
)
in accordance with section 127(1) of
)
the Corporations Act )
[Signature]
[Signature]
Signature of Director
Signature of Secretary
KEN WOOLLEY MICHAEL
RICHES
Full Name Full
Name
EXECUTED by ALINTA DEWAP )
PTY LTD ACN 058 070 689
)
in accordance with section 127(1) of
)
the Corporations Act )
[Signature]
[Signature]
Signature of Director
Signature of Secretary
KEN WOOLLEY MICHAEL
RICHES
Full Name Full
Name
[Schedule 2 inserted: No. 3 of 2014 s. 7.]