Western Australian Numbered Acts Western Australian Numbered Acts After Schedule 2
insert:
Schedule 3 -- 2018 variation agreement
[s. 3]
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 ,BALLB 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.
|
|
|
|
|
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 |
|
| ||
|
EXECUTED by FORTESCUE METALS GROUP LTD Elizabeth Gaines |
) |
Cameron Wilson |
By Authority: KEVIN J. McRAE, Government Printer