Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT is made the 18th day of November 1986 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
SCM CHEMICALS LTD. (formerly called Laporte Australia Limited) a company duly
incorporated in the State of Western Australia and having its registered
office at Old Coast Road, Australind (hereinafter called “the
Company”) of the other part.
WHEREAS:
(a) the State and the Company (pursuant to
assignment) are now the parties to the agreement defined in section 2 of the
Laporte Industrial Factory Agreement Act 1961-1982 ;
(b) the Company has agreed to cancel the agreement
and to release the State from its obligations for effluent disposal thereunder
in consideration of the payment by the State of the amount hereinafter
provided; and
(c) the parties have agreed to provide for the
carrying on by the Company of operations on the works site in manner
hereinafter contained.
NOW THIS AGREEMENT WITNESSES:
Definitions
1. In this Agreement subject to the context
—
“advise”, “apply”, “approve”,
“approval”, “consent”, “certify”,
“direct”, “notify”, “request”, or
“require”, means advise, apply, approve, approval, consent,
certify, direct, notify, request, or require in writing as the case may be and
any inflexion or derivation of any of those words has a corresponding meaning;
“approval date” means the date the detailed proposals to be
submitted by the Company under Clause 7 hereof have been approved by the
Minister under Clause 8 hereof;
“approved proposal” means any proposal approved or determined
under this Agreement;
“changeover date” means the 31st day of December 1989;
“chloride effluent” means liquid effluent from the chloride
process;
“chloride plant” means the plant to be erected and established by
the Company on the works site;
“chloride process” means the process of producing titanium
compounds by attacking the raw material with chlorine;
“Clause” means a clause of this Agreement;
“commencement date” means the date the Bill referred to in Clause
3 comes into operation as an Act;
“Commonwealth” means the Commonwealth of Australia and includes
the Government for the time being thereof;
“decommissioning period” mean the period of ninety (90) days after
the changeover date;
“encumbrance” includes any mortgage, pledge, charge, lien,
assignment, hypothecation, security interest, title retention, preferential
right or trust arrangement and any other security agreement or arrangement of
any kind given or created, in each case, by way of security, and the
expressions “encumber” and “encumbrancer” shall be
construed accordingly;
“EPA” means the Environmental Protection Authority created by
section 9 of the Environmental Protection Act 1971 or upon proclamation of the
Environmental Protection Act 1986 as continued in existence by section 7 of
that Act;
“EPA Report” means the report which the EPA may prepare and submit
to the Minister in respect of the ERMP or upon proclamation of the
Environmental Protection Act 1986 pursuant to section 40(1) of that Act;
“ERMP” means the environmental review and management program
submitted to the EPA in respect of the chloride plant;
“factory” means the factory which has been erected and established
at the works site pursuant to Clause 2 of the 1961 Agreement;
“financial year” means the period from 1 July to 30 June next;
“Minister” means the Minister in the Government of the State for
the time being responsible (under whatsoever title) for the administration of
the Act to ratify this Agreement and pending the passing of that Act means the
Minister for the time being designated in a notice from the State to the
company and includes the successors in office of the Minister;
“month” means calendar month;
“notice” means notice in writing;
“person” or “persons” includes bodies corporate;
“said State” means the State of Western Australia;
“State Energy Commission” means The State Energy Commission of
Western Australia as described in section 7 of the State Energy Commission Act
1979 ;
“sub-clause” means a sub-clause of the Clause in which the term is
used;
“sulphate plant” means that part of the factory which uses the
sulphate process;
“sulphate process” means the process of producing titanium
pigments by attacking the raw material with sulphuric acid;
“the pipeline” means the pipeline or pipelines presently used to
transport the sulphate effluent from the factory into the intermediate pumping
reservoir on the Leschenault peninsula which was commissioned in October 1985;
“the 1961 Agreement” means the agreement defined in section 2 of
the Laporte Industrial Factory Agreement Act 1961 as amended;
“the sulphate effluent” means the liquid effluent from the
sulphate process which shall not alter substantially in composition from that
recorded by the Government Chemical Laboratories over the three years from
30th June 1983 to 30th June 1986;
“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;
“Water Authority” means the Water Authority of Western Australia
established pursuant to section 7 of the Water Authority Act 1984 ;
“works site” means all that land at Australind and more
particularly described as Portion of Leschenault Location 31 and being part of
Lot 4 on Diagram 26619 and the whole of the land in Certificate of Title
Volume 1637 Folio 689.
Interpretation
2. In this Agreement —
(1) monetary
references are references to Australian currency unless otherwise specifically
expressed;
(2) power given under
a clause other than Clause 22 to extend any period or date shall be without
prejudice to the power of the Minister under Clause 22;
(3) clause headings do
not affect the interpretation or construction; and
(4) reference to an
Act includes the amendments to that Act for the time being in force and also
any Act passed in substitution therefor and in lieu thereof and the
regulations for the time being in force thereunder.
Introduction of Bill
3. The State shall introduce and sponsor a Bill in
the State Parliament of Western Australia to ratify this Agreement and
endeavour to secure its passage as an Act prior to 31st December, 1986.
Ratification and Operation
4. (1) The provisions
of this Agreement other than this Clause and Clauses 1, 2 and 3 shall not come
into operation until the Bill referred to in Clause 3 has been passed by the
Parliament of Western Australia and comes into operation as an Act.
(2) If before 31st
December, 1986 the said Bill has not commenced to operate as an Act then
unless the parties hereto otherwise agree this Agreement shall then cease and
determine and no party hereto shall have any claim against any other party
hereto with respect to any matter or thing arising out of, done, performed, or
omitted to be done or performed under this Agreement.
(3) On the said Bill
commencing to operate as an Act all the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law.
Termination of 1961 Agreement
5. Upon and subject to the said Bill commencing to
operate as an Act the 1961 Agreement is hereby cancelled and the rights and
obligations of the parties thereunder are hereby terminated but otherwise the
1961 Agreement shall remain in full force and effect.
Production to the Changeover Date
6. (1) The Company may
continue to use the sulphate process at the factory until the changeover date;
(2) Until the end of
the decommissioning period —
(a)
subject to this Clause the State shall continue to be totally responsible for
the disposal of all sulphate effluent;
(b)
unless and until the parties hereto otherwise in writing agree the State shall
at the cost of the Company patrol the pipeline and such cost shall include
reasonable charges for supervision and administration;
(c) on
behalf of the State the Company shall at its own expense maintain, repair and
renew the pipeline and its support structure;
(d) the
Company shall at its own cost collect the sulphate effluent and pump it into
the pipeline under pressure and conditions which will efficiently discharge
the sulphate effluent completely through the pipeline. The Company shall
provide and maintain adequate pumps sumps machinery apparatus and facilities
to provide for and maintain such discharge;
(e)
during each financial year the Company shall pay to the State $100,000 (or a
pro rata sum thereof if the end of the decommissioning period shall occur
during a financial year) as contribution towards costs of disposal of the
effluent. Payment of the contribution shall be made by the Company to the
State on the 31st March of each year, the next payment shall be made on 31st
March 1987 and the last payment shall be made on the end of the
decommissioning period.
(3) From and after the
changeover date the Company shall: —
(a)
within the decommissioning period discharge all sulphate effluent and residual
liquor through the pipeline and shall then flush the pipeline with clean
water; and
(b) be
responsible for and shall pay all costs relating to the treatment and disposal
of all effluent and waste products emanating from production at the works site
after the changeover date.
Company to Submit Proposals
7. (1) The Company
shall within sixty (60) days of the Company’s acceptance of (which
acceptance shall not be unreasonably withheld) any condition which may be
recommended in the EPA Report (or thereafter within such extended time as the
Minister may allow as hereinafter provided) and subject to the provisions of
this Agreement submit to the Minister to the extent reasonably practicable its
detailed proposals (having due regard where applicable to the ERMP and the EPA
Report) for the construction and the establishment on the works site of a new
plant designed to produce and capable of producing not less than 36,000 tonnes
of titanium dioxide pigment per annum by use of the chloride process. Except
for proprietary confidential information the detailed proposals shall include
plans where practicable and specifications, where reasonably required by the
Minister, of the location, area, lay-out, design, quantities, materials and a
time program for the commencement and completion of construction plant
commissioning and the provision (as the case may be) of each of the following
matters, namely —
(a) the
chloride plant;
(b) the
production of chlorine;
(c) air
separation plant;
(d)
integration of the chloride plant into the factory;
(e) the
concurrent operation of the sulphate plant and the chloride plant;
(f) the
expected solid and liquid discharges and gaseous emissions and the method and
location of disposal;
(g)
water supply;
(h)
access roads;
(i)
use of local labour professional services manufacturers
suppliers contractors and materials and measures to be taken with respect to
the engagement and training of employees by the Company, its agents and
contractors;
(j)
chemicals and other supplies for the ongoing process;
(k) an
environmental management programme as to measures to be taken, in respect of
the Company’s activities under this Agreement, for the protection and
management of the environment; and
(l) the
security of confidential proprietary information provided to or obtained by
the State or any authority of the State to satisfy the provisions of any
written law.
(2) With the approval
of the Minister or if so required by him the proposals pursuant to sub-clause
(1) may be submitted separately and in any order as to the matters mentioned
in paragraphs (a) to (l) of sub-clause (1).
(3) With the approval
of the Minister and that of any third parties concerned the proposals pursuant
to sub-clause (1) may provide for the use by the Company of any existing
facilities belonging to the Company or upon reasonable terms and conditions of
any other existing facilities belonging to a third party instead of the
construction of new facilities of such kind.
(4) When the Company
submits the proposals pursuant to sub-clause (1) it shall furnish to the
State’s satisfaction evidence of —
(a) the
anticipated amount and value of the works to be carried out hereunder;
(b) the
availability of finance necessary to carry out the operations to which the
said proposals refer; and
(c) the
readiness of the Company to commence and proceed to carry out the operations
referred to in the said proposals.
Consideration of Proposals
8. (1) On receipt of
the proposals pursuant to sub-clause (1) of Clause 7 the Minister shall
—
(a)
approve of the said proposals either wholly or in part without qualification
or reservation; or
(b)
defer consideration of or decision upon the same until such time as the
Company submits a further proposal or proposals in respect of some other of
the matters mentioned in sub-clause (1) of Clause 7 which are not covered by
the said proposals; or
(c)
require as a condition precedent to the giving of his approval to the said
proposals that the Company make such alterations thereto or comply with such
conditions in respect thereto as he thinks reasonable and in such a case the
Minister shall disclose his reasons for such conditions.
Advice of Minister’s Decision
(2) The Minister shall
within two months after receipt of each of the said proposals pursuant to
sub-clause (1) give notice to the Company of his decision in respect to the
same.
(3) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of sub-clause
(1) the Minister shall afford the Company full opportunity to consult with him
and should it so desire to submit new or revised proposals either generally or
in respect to some particular matter.
Minister’s Decision Subject to Arbitration
(4) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of sub-clause
(1) and the Company considers that the decision is unreasonable the Company
within two months after receipt of the notice mentioned in sub-clause (2) may
elect to refer to arbitration in the manner hereinafter provided the question
of the reasonableness of the decision.
Arbitration Award
(5) An award made on
an arbitration pursuant to sub-clause (4) shall have force and effect as
follows:
(a) if
by the award the dispute is decided against the Company and the Company within
3 months after delivery of the award has not given notice to the Minister of
its acceptance of the award then except for the provisions of Clause 6 hereof
which shall remain in full force and effect, this Agreement shall cease and
determine on the expiration of that period of 3 months; or
(b) if
by the award the dispute is decided in favour of the Company the decision
shall take effect as a notice by the Minister that he is so satisfied with and
approves the matter or matters the subject of the arbitration.
Effect of Non Approval of Proposals
(6) Notwithstanding
that under this Clause any detailed proposals of the Company are approved by
the Minister or determined by arbitration award, unless each and every such
proposal and matter is so approved or determined by 31st August 1987 or by
such extended date or period (if any) as the Minister may grant hereunder then
the Minister may give to the Company 12 months notice of intention to
determine this Agreement except for the provisions of Clause 6 which shall
remain in full force and effect and unless before the expiration of the said
12 months period all the detailed proposals and matters are so approved or
determined this Agreement shall thereupon cease and determine except for the
provisions of Clause 6 which shall remain in full force and effect.
Implementation of Proposals
(7) The Company shall
implement the approved proposals in accordance with the terms thereof so that
the chloride plant is constructed and fully commissioned not later than the
changeover date.
Extension of Time
(8) If for any reason
not attributable to any default or unreasonable delay by the Company the
approval date shall be later than 30 June 1987 then, notwithstanding any other
provision, the dates referred to in the definition of “changeover
date” appearing in Clause 1 hereof and in sub-clause (6) shall be
extended by the number of days which shall have elapsed from the 30th June
1987 until the approval date.
Additional Proposals
9. (1) If the Company
at any time during the continuance of this Agreement desires to significantly
modify expand or otherwise vary its activities carried on pursuant to this
Agreement beyond those specified in any approved proposals or desires to carry
out any operations on the works site in addition to the production of pigment
by the chloride process it shall give notice of such desire to the Minister
and if required by the Minister within 2 months of the giving of such notice
shall submit to the Minister within such period as the Minister shall
reasonably allow detailed proposals in respect of all matters covered by such
notice and as the Minister may require. The provisions of Clause 7 and Clause
8 (other than sub-clauses (5)(a) and (6)) shall mutatis mutandis apply to
detailed proposals submitted pursuant to this sub-clause. The Company shall
implement the approved proposals in accordance with the terms thereof.
(2) If the Minister
does not require the Company to submit proposals under subclause (1) the
Company may, subject to compliance with all applicable laws, proceed with the
modification, expansion or variation of its activities carried on pursuant to
this Agreement.
Protection and Management of the Environment
10. The Company shall keep the Minister fully
informed in respect of, and when and in such form as reasonably required by
the Minister from time to time shall report to the Minister on the measures it
has taken, is taking or proposes to take for the monitoring, protection and
management of the environment in respect of its operations including (without
limiting the generality of the foregoing provisions) the following matters
—
(a)
effluent disposal (solid and liquids);
(b)
gaseous emissions and discharges into the air from the works site;
(c)
emissions, discharges and disposals of matter on or from the works site onto
or into land;
(d)
noise and radiation from the works site;
(e)
rehabilitation of contaminated ground water emanating from under the works
site; and
(f)
ongoing risk and hazard auditing as a consequence of the acceptance of the EPA
Report by the Company,
and as and when reasonably required by the Minister the Company shall liaise
and cooperate with the Minister on measures it is taking and take additional
reasonable measures with respect to the monitoring, protection and management
of the environment arising from its operations.
Use of Local Labour and Professional Services
11. (1) The Company
shall, for the purpose of this Agreement —
(a) so
far as it is reasonable and economically practicable so to do, use labour
available within the said State;
(b) so
far as it is reasonable and economically practicable so to do, use the
services of engineers, surveyors, architects and other professional
consultants resident and available within the said State;
(c) when
preparing specifications, calling for tenders and letting contracts for works,
materials, plant, equipment and supplies, ensure that Western Australian
suppliers manufacturers and contractors are given fair and reasonable
opportunity to tender or quote; and
(d) give
proper consideration and where possible preference to Western Australian
suppliers manufacturers and contractors when letting contracts or placing
orders for works, material, plant, equipment and supplies where price quality
delivery and service are equal to or better than that obtainable elsewhere.
(2) The Company shall
require in every contract entered into with a third party for the supply of
services labour works materials plant equipment and supplies for the purposes
of this Agreement as a condition thereof that such third party shall undertake
the same obligations as are referred to in sub-clause (1) of this Clause and
shall report to the Company concerning such third party’s implementation
of that condition.
(3) The Company shall
submit a report to the Minister at monthly intervals or such longer period as
the Minister determines commencing from the date of this Agreement concerning
their implementation of the provisions of this Clause together with a copy of
any report received by the Company pursuant to sub-clause (2) during that
month.
Consideration for Termination of the 1961 Agreement
12. (1) Subject to
sub-clause (2) and in consideration of the Company agreeing to cancel the 1961
Agreement and to release the State from its obligations for effluent disposal
thereunder the State shall pay to the Company the sum of EIGHT MILLION FIVE
HUNDRED THOUSAND DOLLARS ($8,500,000) as follows:
(a) as
to TWO MILLION DOLLARS ($2,000,000) six (6) months after the approval date;
(b) as
to TWO MILLION DOLLARS ($2,000,000) nine (9) months after the approval date;
(c) as
to TWO MILLION DOLLARS ($2,000,000) twelve (12) months after the approval
date; and
(d) as
to the balance on the changeover date together with interest on such balance
at the rate hereinafter mentioned for the period from the date twelve (12)
months prior to the changeover date to the changeover date. The interest rate
shall be the rate equal to the yield on 5 year Commonwealth Treasury Bonds as
at the date being twelve (12) months prior to the changeover date which was
published in the latest Reserve Bank bulletin issued prior to that date.
(2) The obligation of
the State to pay each instalment under sub-clause (1) shall be subject to:
(a) the
Company not being in default hereunder being a default in respect of which
notice has been given to the Company pursuant to Clause 23 and which, if
capable of remedy, shall have remained unremedied after the period for remedy
provided for or otherwise allowed pursuant to this Agreement; and
(b) the
Minister being reasonably satisfied as to the progress of the construction of
the chloride plant and associated works.
Disposal of Works Site
13. Upon the Company disposing of any part or
parts of the works site all the provisions of this Agreement shall cease to
apply to the same which shall thereupon cease to have the benefit of the
rights and privileges conferred by this Agreement.
Water
14. (1) The State and
the Company shall agree upon the reasonable amounts and qualities thereof of
the Company’s annual and maximum daily water requirements for its
purposes hereunder at the works site.
(2) The water
requirements referred to in sub-clause (1) shall be obtained in accordance
with the provisions of the Water Authority Act 1984 or other relevant Act.
Electricity
15. (1) The Company
shall confer with the State Energy Commission with respect to the
Company’s power requirements at the works site during the currency of
the Agreement.
(2) The Company and
the State Energy Commission shall enter into arrangements for the provision of
power to the works site during the currency of this Agreement on terms and
conditions to be negotiated between them.
(3) Subject to its
compliance with the provisions of the State Energy Commission Act 1979 the
Company may supply electric power generated by any electric power plant
erected on the works site to any third party performing work on the works
site.
Conversion of Sulphate Plant
16. (1) During the
continuance of this Agreement the Company shall investigate the technical
economic and environmental feasibility of converting the sulphate plant to the
processing of raw materials and shall endeavour to promote the establishment
and operation of facilities to achieve processing of raw materials in the said
State, whether by itself or in association with others.
(2) The Company shall
when required by the Minister, but not more frequently than once in every 3
years, submit to the Minister detailed reports of its investigations and
endeavours to promote processing carried out pursuant to sub-clause (1).
Road Haulage
17. (1) The State
shall endeavour to ensure that subject to the payment by the Company of
appropriate fees, the Minister for Transport under the
Transport Co-ordination Act 1966 will not refuse to grant and issue to the
Company (or suppliers to or contractors with the Company and sub-contractors)
a licence to transport by road —
(a)
minerals (including coal) for use in the factory anywhere within an area
having a radius of 80 kilometres of the factory; and
(b) any
goods for use in the factory or manufactured or produced in the factory within
an area having a radius of 40 kilometres of the factory.
And will ensure that the appropriate fees charged to the Company for licences
under the Transport Co-ordination Act 1966 will not be such as to discriminate
against the Company its suppliers contractors and sub-contractors.
(2) The Company, so
long as it complies and continues to comply with its obligations hereunder
—
(a) may
use roads providing access from the boundary of the works site to and on any
jetty or wharf where ships are berthed;
(b)
shall not have imposed on it any discriminatory charge in respect of the use
by it of any jetty or wharf referred to in paragraph (a) of this sub-clause.
Zoning
18. During the currency of this Agreement the
State shall ensure after consultation with the relevant local authority that:
(a) the
works site; and
(b) the
area of land surrounding the works site as delineated and bordered as on the
plan annexed hereto and marked with the letter “A”
shall be and remain zoned for use or otherwise protected so that the
operations of the Company hereunder may be undertaken and carried out on the
works site without any interference or interruption by the State or by any
State agency or instrumentality or by any local or other authority of the
State on the ground that such operations are contrary to any zoning by-law
regulation or order.
Assignment
19. (1) Subject to the
provisions of this Clause the Company may at any time assign mortgage charge
sub-let or dispose of with the consent of the Minister the whole or any part
of the rights of the Company hereunder and of the obligations of the Company
hereunder subject however in the case of an assignment sub-letting disposition
or appointment to the assignee sub-lessee disponee or the 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
Company to be complied with observed or performed in regard to the matter or
matters the subject of such assignment sub-letting disposition or appointment.
(2) Notwithstanding
anything contained in or anything done under or pursuant to sub-clause (1) the
Company shall at all times during the currency of this Agreement be and remain
liable for the due and punctual performance and observance of all the
covenants and agreements on its part contained herein PROVIDED THAT the
Minister may agree to release the Company from such liability where he
considers such release will not be contrary to the interests of the State.
Variation
20. (1) The parties
hereto 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 grant or other title granted hereunder or pursuant hereto for
the purpose of more efficiently or satisfactorily implementing or facilitating
any of the objects of this Agreement.
(2) The Minister shall
cause any agreement made pursuant to sub-clause (1) in respect of any addition
substitution cancellation or variation of the provisions of this Agreement to
be laid on the Table of each House of Parliament within 12 sitting days next
following its execution.
(3) Either House may,
within 12 sitting days of that House after the agreement has been laid before
it pass a resolution disallowing the agreement, but if after the last day on
which the agreement might have been disallowed neither House has passed such a
resolution the agreement shall have effect from and after that last day.
Force majeure
21. This Agreement shall be deemed to be made
subject to any delays in the performance of the obligations hereunder and to
the temporary suspension of continuing obligations hereunder (other than
obligations to pay money) that may be caused by or arise from circumstances
beyond the power and control of the party responsible for the performance of
those obligations including without limiting the generality of the foregoing
delays or any such temporary suspension as aforesaid caused by or arising from
act of God force majeure earthquakes floods storms tempest washaways fire
(unless caused by the actual fault or privity of the party responsible for
such performance) act of war act of public enemies riots civil commotions
strikes lockouts stoppages restraint of labour or other similar acts (whether
partial or general) acts or omissions of the Commonwealth shortages of labour
or essential materials reasonable failure to secure contractors delays of
contractors or 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 pursuant to this
Agreement) or factors that could not reasonably have been foreseen PROVIDED
ALWAYS that the party whose performance of obligations is affected by any of
the said causes shall promptly give notice to the other party of the event or
events and shall use its best endeavours to minimise the effects of such
causes as soon as possible after the occurrence.
Power to Extend Periods
22. Notwithstanding any provision of this
Agreement the Minister may at the request of the Company from time to time
extend or further extend any period or vary or further vary any date referred
to in this Agreement or in any approved proposal hereunder for such period or
to such later date as the Minister thinks fit whether or not the period to be
extended has expired or the date to be varied has passed.
Determination of Agreement
23. (1) In any of the
following events namely if —
(a)
(i) the Company makes default
which the State considers material in the due performance or observance of any
of the covenants or obligations to the State herein on its part to be
performed or observed; or
(ii) the Company abandons or
repudiates this Agreement or its 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 sub-clause (2) or, if the default or abandonment is
referred to arbitration, then within the period mentioned in sub-clause (3);
or
(b) the
Company goes into liquidation (other than a voluntary liquidation for the
purpose of reconstruction) and unless within 3 months from the date of such
liquidation the interest of the Company is assigned to another company or to
an assignee approved by the Minister under Clause 19
the State (except for the provisions of Clauses 6 and 24 which shall remain in
full force and effect) may by notice to the Company determine this Agreement.
(2) The notice to be
given by the State in terms of sub-clause (1) 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 Company and all such
assignees mortgagees chargees and disponees for the time being of the
Company’s said rights to or in favour of whom or by whom an assignment
mortgage charge or disposition has been effected in terms of Clause 19 whose
name and address for service of notice has previously been notified to the
State by the Company or any such assignee mortgagee chargee or disponee.
(3) (a)
If the Company contests the alleged default
abandonment or repudiation referred to in paragraphs (a) and (b) of sub-clause
(1) the Company shall within 60 days after notice given by the State as
provided in sub-clause (2) refer the matter in dispute to arbitration.
(b)
If the question is decided against the Company,
the Company shall comply with the arbitration award within a reasonable time
to be fixed by that award PROVIDED THAT if the arbitrator finds that there was
a bona fide dispute and that the Company was not dilatory in pursuing the
arbitration, the time for compliance with the arbitration award shall not be
less than 90 days from the date of such award.
Effect of Cessation or Determination of Agreement
24. On the cessation or determination of this
Agreement —
(1) Except as
otherwise agreed by the Minister the rights of the Company to in or under this
Agreement and the rights of the Company or of any of its assignees shall
thereupon cease and determine but without prejudice to the liability of either
of the parties hereto in respect of any antecedent breach or default under
this Agreement or in respect of any indemnity given hereunder or in respect of
the provisions of Clause 6 and this Clause.
(2) The Company shall
forthwith pay to the State all moneys which may then have become payable or
accrued due.
(3) 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.
Environmental Protection
25. Nothing in this Agreement shall be construed
to exempt the Company from compliance with any requirement in connection with
the protection of the environment arising out of or incidental to its
activities hereunder that may be made by the State or by any State agency or
instrumentality or any local or other authority or statutory body of the State
pursuant to any Act from time to time in force.
Commonwealth Licences and Consents
26. (1) The Company
shall from time to time make application to the Commonwealth or to the
Commonwealth constituted agency, authority or instrumentality concerned for
the grant to them of any licence or consent under the laws of the Commonwealth
necessary to enable or permit the Company to enter into this Agreement and to
perform any of its obligations hereunder.
(2) On request by the
Company the State shall make representations to the Commonwealth or to the
Commonwealth constituted agency authority or instrumentality concerned for the
grant to the Company of any licence or consent mentioned in sub-clause (1).
Sub-contracting
27. The State shall ensure that without affecting
the liabilities of the parties under this Agreement either party shall have
the right from time to time to entrust to third parties the carrying out of
any portions of the operations which it is authorised or obliged to carry out
hereunder.
Arbitration
28. (1) Any dispute or
difference between the parties arising out of or in connection with this
Agreement the construction of this Agreement or as to the rights, duties or
liabilities of either party hereunder or as to any matter to be agreed upon
between the parties under this Agreement shall in default of agreement between
the parties and in the absence of any provision in this Agreement to the
contrary be referred to the arbitration of two arbitrators one to be appointed
by each party the arbitrators to appoint their umpire before proceeding in the
reference every such arbitration shall be conducted in accordance with the
provisions of the Commercial Arbitration Act 1985 and notwithstanding Section
20 sub-section 1 of that Act each party may be represented before the
arbitrators by a duly qualified legal practitioner or other representative.
(2) Except where
otherwise provided in this Agreement, the provisions of this clause shall not
apply to any case where the State the Minister or any other Minister in the
Government of the said State is by this Agreement given an unfettered
discretion.
(3) The arbitrators or
umpire (as the case may be) of any submission to arbitration hereunder are
hereby empowered upon the application of either of the parties to grant in the
name of the Minister any interim extension of any period or variation of any
date referred to herein which having regard to the circumstances may
reasonably be required in order to preserve the rights of that party or of the
parties hereunder and an award may in the name of the Minister grant any
further extension or variation for that purpose.
Consultation
29. (1) The Company
shall during the currency of this Agreement consult with and keep the State
informed on a confidential basis concerning progress towards reaching the
changeover date.
(2) Following the
changeover date the Company will use its best business judgement to operate
the chloride plant at a capacity appropriate to the demand for titanium
dioxide.
(3) Following the
changeover date and prior to the Company making a decision to cease production
of titanium dioxide at the factory the Company will advise the Minister of its
intentions and will enter into bona fide discussions with the Minister to
discuss any viable possibility to avoid the same.
Notices
30. Any notice, consent or other writing
authorised or required by this Agreement to be given or sent shall be deemed
to have been duly given or sent by the State if signed by the Minister or by
any senior officer of the Civil Service of the said State acting by the
direction of the Minister and forwarded by pre-paid post or handed to the
Company at its registered office for the time being in the said State and by
the Company if signed on its behalf by any person or persons authorised by the
Company or by its solicitors as notified to the State from time to time and
forwarded by pre-paid post or handed to the Minister and except in the case of
personal service any such notice, consent or writing shall be deemed to have
been duly given or sent on the day on which it would be delivered in the
ordinary course of post.
Term of Agreement
31. Subject to the provisions of Clause 23 this
Agreement shall expire on 31 December, 2011.
Applicable Law
32. This Agreement shall be interpreted according
to the law for the time being in force in the State of Western Australia.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
SIGNED by the said THE HONOURABLE
BRIAN THOMAS BURKE M.L.A.
in the presence
of: BRIAN BURKE
D. PARKER
MINISTER FOR
MINERALS AND ENERGY
THE COMMON SEAL OF SCM CHEMICALS LTD.
was hereunto affixed by authority of the
Board of
Directors in the presence of: [C.S.]
Director: J. LEACH
Secretary: H. MACIEJEWSKI
[Schedule 1 amended: No. 27 of 1987 s. 6.]