Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading inserted: No. 6 of 2018 s 7.]
2018
THE HONOURABLE MARK McGOWAN
THE STATE OF WESTERN AUSTRALIA
and
THE PILBARA INFRASTRUCTURE PTY LTD
ACN 103 096 340
and
FORTESCUE METALS GROUP LTD
ACN 002 594 872
RAILWAY AND PORT (THE PILBARA INFRASTRUCTURE PTY LTD) AGREEMENT 2004
RATIFIED VARIATION AGREEMENT
[Solicitor’s details]
THIS AGREEMENT is made this 13 th day of March 2018
BETWEEN
THE HONOURABLE MARK McGOWAN , BA LLB MLA, 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,
AND
THE PILBARA INFRASTRUCTURE PTY LTD ACN 103 096 340 of 87 Adelaide Terrace,
East Perth, Western Australia, (hereinafter called the " Company " in which
term shall be included its successors and permitted assigns) of the second
part,
AND
FORTESCUE METALS GROUP LTD ACN 002 594 872 of 87 Adelaide Terrace, East Perth,
Western Australia, (hereinafter called the " Guarantor ") of the third part.
RECITALS:
A. The State, the Company and the Guarantor are
the parties to the agreement dated 10 November 2004 which was ratified by and
is scheduled to the Railway and Port (The Pilbara Infrastructure Pty Ltd)
Agreement Act 2004 and which as subsequently varied is referred to in this
Agreement as the " Principal Agreement ".
B. The State, the Company and the Guarantor wish
to vary the provisions of the Principal Agreement on the terms and conditions
set out in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Ratification and operation
(1) This Agreement,
other than this clause, does not come into operation except in accordance with
subclause (2).
(2) This Agreement,
other than this clause, 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 2018 or a
later date agreed by 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
2018 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.
2. Variations of the Principal Agreement
The Principal
Agreement is hereby varied as follows:
(1) in clause 1:
(a) by
inserting after the definition of "approved proposal" the following new
definition:
" Australian Consumer Law " means the
Competition and Consumer Act 2010 ;
(b) by
inserting after the definition of "LAA" the following new definition:
" LAA Minister " means the Minister for Lands, a
body corporate under section 7 of the LAA;
(c) by
deleting the definition of "Port Authority" and substituting the following new
definition:
" Port Authority " means the Pilbara Ports
Authority, being the body corporate having management and control of the Port
under the Port Authorities Act ;
(d) in
the definition of " Rail Safety Act" by deleting the words " Rail Safety Act
1998 " and substituting " Rail Safety National Law (WA) Act 2015 ";
(e) by
inserting after the definition of "said State" the following new definition:
" second variation date " means the date on which
clause 2 of the variation agreement made on or about 12 March 2018 between the
Honourable Mark McGowan, Premier of Western Australia acting for and on behalf
of the said State and its instrumentalities from time to time, the Company and
the Guarantor comes into operation;
(f) by
deleting the definition of " Trade Practices Act";
(2) by deleting clause
4 and substituting the following new clause:
" Obligations of the State
4. (1)
The State shall subject to subclause (3) and the adequate
protection of the environment (including flora and fauna) and the land
affected (including improvements thereon) arrange for the issue of requisite
authority under one or both of (as determined by the State in its discretion):
(a) section 91 of the LAA; or
(b) section 182 of the LAA,
to allow the Company to enter upon Crown land (within the meaning of
the LAA and including, if applicable, land the subject of a pastoral lease but
excluding land within the Port) to carry out all works to the extent
reasonably necessary for the purposes of undertaking its obligations under
clause 5(1) as applied pursuant to clause 12(2a).
(2)
For the purposes of paragraph (b) of subclause (1), section 182
of the LAA shall apply as if the Project (including a significant
modification, expansion or other variation of it for which detailed proposals
are required) is a proposed public work for which the LAA Minister is under
that section authorised to take interests in land within the meaning of that
section.
(3)
The Company acknowledges that it shall be responsible for
obtaining all consents of each person whose consent the LAA Minister (acting
with the concurrence of the Minister in respect of any such Crown land the
subject of a Government agreement) requires for the grant of any requisite
authority referred to in subclause (1) and in a form and substance acceptable
to the LAA Minister.";
(3) in clause 7(3) by
deleting paragraph (a);
(4) by inserting after
clause 9 the following new clause:
"9A. Local
participation plan
(1)
In this clause, the term "local industry participation benefits"
means:
(a)
the use and training of labour available within
the said State;
(b)
the use of the services of engineers, surveyors,
architects and other professional consultants, experts, specialists, project
managers and contractors available within the said State; and
(c)
the procurement of works, materials, plant,
equipment and supplies from Western Australian suppliers, manufacturers and
contractors.
(2)
The Company acknowledges the need for local industry
participation benefits flowing from this Agreement.
(3)
The Company agrees that within 3 months after the second
variation date it shall prepare and provide to the Minister a plan which
contains:
(a)
a clear statement on the strategies which the
Company will use, and require a third party as referred to in clause 21(2) to
use, to maximise the uses and procurement referred to in subclause (1);
(b)
detailed information on the procurement practices
the Company will adopt, and require a third party as referred to in clause
21(2) to adopt, in calling for tenders and letting contracts for works,
materials, plant, equipment and supplies and how such practices will provide
fair and reasonable opportunity for suitably qualified Western Australian
suppliers, manufacturers and contractors to tender or quote for works,
materials, plant, equipment and supplies;
(c)
detailed information on the methods the Company
will use, and require a third party as referred to in clause 21(2) to use, to
have their respective procurement officers promptly introduced to Western
Australian suppliers, manufacturers and contractors seeking such introduction;
and
(d)
details of the communication strategies the
Company will use, and require a third party as referred to in clause 21(2) to
use, to alert Western Australian engineers, surveyors, architects and other
professional consultants, experts, specialists, project managers and
consultants and Western Australian suppliers, manufacturers and contractors to
services opportunities and procurement opportunities respectively as referred
to in subclause (1).
It is acknowledged by the Company that the strategies of the Company
referred to in subclause (3)(a) will include strategies of the Company in
relation to supply of services, labour, works, materials, plant, equipment or
supplies for the purposes of this Agreement.
(4)
During the currency of this Agreement the Company shall
implement the plan provided under this clause.
(5)
At the request of either of them made at any time and from time
to time, the Minister and the Company shall confer as to any amendments
desired to any plan provided under this clause and may agree to the amendment
of the plan or the provision of a new plan in substitution for the one
previously provided.
(6)
At least 3 months before the anticipated submission of detailed
proposals under clauses 12, 12A or 13 (or such lesser period as the Minister
may, at the request of the Company, approve in respect of any such anticipated
proposals), the Company must, unless the Minister otherwise requires, give to
the Minister information about the implementation of the plan provided under
this clause in relation to the activities to be the subject of such detailed
proposals. This obligation operates in relation to all detailed proposals
submitted on or after the date that is 4 months after the date when a plan is
first provided under this clause.";
(5) in clause 12(3):
(a) by
deleting the word "and" after the words "subclause (2),"; and
(b) by
inserting after the words "as referred to in clause 9" the words "and
compliance with clause 9A";
(6) in clause
12A(3)(b) by deleting the first reference to "clause 9" and substituting
"clauses 9 and 9A";
(7) in clause 13(3)(b)
by deleting the first reference to "clause 9" and substituting "clauses 9 and
9A";
(8) by deleting clause
15(3) and substituting the following:
"The Company shall
provide crossings for livestock and also for any roads, other railways,
conveyors, pipelines and other utilities which exist in respect of land at the
date such land is included in the Special Railway Licence or is made the
subject of a Lateral Access Road Licence. In addition for the purposes of
livestock and infrastructure such as roads, railways, conveyors, pipelines,
transmission lines and other utilities proposed to cross the land the subject
of the Special Railway Licence or land the subject of a Lateral Access Road
Licence (as the case may be) the Company shall:
(a) if
applicable, give its consent to, and otherwise facilitate, the grant by the
State or any agency, instrumentality or other authority of the State of any
lease, licence or other title over land the subject of the Special Railway
Licence or of a Lateral Access Road Licence (as the case may be) so long as
such grant does not in the Minister's opinion unduly prejudice or interfere
with the activities of the Company under this Agreement; and
(b) on
reasonable terms and conditions allow access for the construction and
operation of such crossings and associated infrastructure,
provided that in
forming his opinion under this clause, the Minister must consult with the
Company.";
(9) in clause 16(6) by
deleting the words " Trade Practices Act" and substituting "Australian
Consumer Law";
(10) in clause 18(6)
by deleting the words " Trade Practices Act" and substituting "Australian
Consumer Law";
(11) in clause 21:
(a) by
inserting after subclause (2) the following new subclause:
"(2a) Except as
otherwise agreed by the Minister, the Company shall, in every contract entered
into with a third party after the second variation date for the supply of
services, labour, works, materials, plant, equipment or supplies for the
purposes of this Agreement require as a condition thereof that such third
party shall undertake procurement activities in accordance with the relevant
plan under clause 9A as and from the date of its provision to the Minister.";
(b) in
subclause (3) by inserting after the words "concerning its implementation of
the provisions of this clause" the words "and of the relevant plan provided
pursuant to clause 9A";
(12) in clause 35(1)
by deleting the number " 1985 " and substituting " 2012 "; and:
(13) in clause 41 by:
(a)
adding the words "and Submission to Jurisdiction" to the clause heading; and
(a)
adding the following words after "State of Western Australia":
"and the parties to
this Agreement submit to the jurisdiction of the courts of Western Australia
in relation to any action or proceeding to settle any dispute or question
arising out of or in connection with this Agreement".
3. Confirmation of Guarantee
The Guarantor confirms
that its guarantee in favour of the State contained in clause 39 of the
Principal Agreement shall continue notwithstanding the above-mentioned
variations to the Principal Agreement.
EXECUTED AS A DEED.
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[Signature]
|
|
[Signature] |
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EXECUTED by THE PILBARA INFRASTRUCTURE PTY LTD ACN 103 096 340 in accordance
with section 127(1) of the Corporations Act 2001 (Cth) by authority of its
directors: Elizabeth Gaines |
) |
Cameron Wilson |
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EXECUTED by FORTESCUE METALS GROUP LTD Elizabeth Gaines |
) |
Cameron Wilson |
[Schedule 3 inserted: No. 6 of 2018 s. 7.]