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50—1 page i
Western Australia
Pilbara Energy Project Agreement
(Termination) Bill 2013
Contents
1. Short title 2
2. Commencement 2
3. Act amended 2
4. Long title amended 2
5. Section 3 amended 2
6. Section 5 inserted 3
5. Ratification and operation of termination agreement 3
7. Schedule 2 inserted 3
Schedule 2 — Termination agreement
page 1
Western Australia
LEGISLATIVE ASSEMBLY
Pilbara Energy Project Agreement
(Termination) Bill 2013
A Bill for
An Act to amend the Pilbara Energy Project Agreement Act 1994 to
provide for the ratification of an agreement for the termination of
the Pilbara Energy Project Agreement and for related purposes.
The Parliament of Western Australia enacts as follows:
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 1
page 2
1. Short title 1
This is the Pilbara Energy Project Agreement (Termination) 2
Act 2013. 3
2. Commencement 4
This Act comes into operation as follows — 5
(a) sections 1 and 2 — on the day on which this Act 6
receives the Royal Assent; 7
(b) the rest of the Act — on the day after that day. 8
3. Act amended 9
This Act amends the Pilbara Energy Project Agreement 10
Act 1994. 11
4. Long title amended 12
In the long title delete “works.” and insert: 13
14
works and to ratify a further agreement for the termination 15
of that agreement. 16
17
5. Section 3 amended 18
In section 3 insert in alphabetical order: 19
20
termination agreement means the agreement a copy of 21
which is set out in Schedule 2; 22
23
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 6
page 3
6. Section 5 inserted 1
After section 4 insert: 2
3
5. Ratification and operation of termination 4
agreement 5
(1) The termination agreement is ratified. 6
(2) Without limiting or otherwise affecting the operation of 7
the Government Agreements Act 1979, the termination 8
agreement is to operate and take effect despite any 9
other Act or law. 10
11
7. Schedule 2 inserted 12
After Schedule 1 insert: 13
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 4
1
Schedule 2 — Termination agreement 2
[s. 3] 3
2013 4
5
6
THE STATE OF WESTERN AUSTRALIA 7
8
9
and 10
11
12
ALINTA DEWAH PTY LTD 13
ACN 083 051 950 14
15
16
ALINTA DEWAP PTY LTD 17
ACN 058 070 689 18
19
20
21
22
23
24
25
PILBARA ENERGY PROJECT AGREEMENT 1993 26
TERMINATION AGREEMENT 27
28
29
30
31
32
33
[Solicitor’s details] 34
35
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 5
THIS AGREEMENT is made this 8th day of NOVEMBER 2013 1
2
BETWEEN 3
4
THE HONOURABLE COLIN JAMES BARNETT, MEc., M.L.A., Premier 5
of the State of Western Australia, acting for and on behalf of the said State and 6
its instrumentalities from time to time (hereinafter called “the State”) of the 7
first part, 8
9
ALINTA DEWAH PTY LTD ACN 083 051 950 of Level 13, 1 William 10
Street, Perth, Western Australia and ALINTA DEWAP PTY LTD ACN 11
058 070 689 of Level 13, 1 William Street, Perth, Western Australia 12
(hereinafter called "Joint Venturers" in which term shall be included their 13
successors and permitted assigns) of the second part. 14
15
WHEREAS: 16
17
A. The State and the Joint Venturers are the parties to the agreement 18
dated 30 November 1993, which agreement was ratified by the 19
Pilbara Energy Project Agreement Act 1994 (WA), as varied by 20
agreements dated 7 June 1994, 16 October 1995 and 31 March 1998. 21
The first mentioned agreement as so varied is referred to in this 22
Agreement as "the Principal Agreement". 23
B. The State and the Joint Venturers wish to terminate the Principal 24
Agreement in the manner and on the terms set out in this Agreement. 25
26
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 6
NOW THIS AGREEMENT WITNESSES: 1
1. Definitions 2
In this Agreement subject to the context: 3
"Deed of Assignment and Covenant 1999" means the document 4
entitled "Deed of Assignment, Covenant and Acknowledgment in 5
relation to the Pilbara Energy Project State Agreement" dated 6
4 February 1999 between the State, the PEPA Minister, Duke Energy 7
WA Holdings Pty Ltd (now known as Alinta DEWAH Pty Ltd), BHP 8
Minerals Pty Ltd, Duke Energy WA Power Pty Ltd (now known as 9
Alinta DEWAP Pty Ltd) and Duke Energy Australian Holdings Pty 10
Ltd (now known as Alinta EH Pty Ltd); 11
"EP Act" means the Environmental Protection Act 1986 (WA); 12
"Iron Ore Beneficiation Termination Agreement" means the 13
agreement ratified by and scheduled within Part 7 of the Iron Ore 14
Agreements Legislation (Amendment, Termination and Repeals) 15
Act 2011 (WA); 16
"Land Act Minister" means the Minister for Lands, a body corporate 17
under section 7 of the Land Administration Act; 18
"Land Administration Act" means the Land Administration 19
Act 1997 (WA); 20
"laws relating to native title" means laws applicable from time to time 21
in Western Australia in respect of native title and includes the Native 22
Title Act 1993 (Cth); 23
"Mining Act" means the Mining Act 1978 (WA); 24
"Minister" means the Minister in the Government of the State for the 25
time being responsible for the administration of the Act to ratify this 26
Agreement and pending the passing of that Act means the Minister for 27
the time being designated in a notice from the State to the Joint 28
Venturers and includes the successors in office of the Minister; 29
"Minister for Mines" means the Minister in the Government of the 30
State for the time being responsible for the administration of the 31
Mining Act; 32
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 7
"Newman Facilities" means the power station facilities constructed 1
under or pursuant to the Principal Agreement at Newman comprising: 2
(a) the turbines; 3
(b) the electrical switchyard, including associated on-site 4
electrical feeders; 5
(c) the gas receival facility; 6
(d) the diesel unloading and forwarding pumps and associated 7
diesel storage tanks; 8
(e) the oily water treatment system and associated evaporation 9
pond; and 10
(f) associated plant, equipment and infrastructure, including gas 11
distribution infrastructure, 12
each at the date of this Agreement located upon Mineral Lease 244SA 13
and contained within the boundaries of the area shown in Plan D of 14
Schedule A; 15
"Operative Date" has the meaning given in clause 3(2); 16
"PEPA Minister" means the Minister in the Government of the State 17
for the time being responsible for the administration of the Principal 18
Agreement; 19
"PEPA Titles" means the following titles granted pursuant to the 20
Principal Agreement and continuing as at the Operative Date: 21
(a) Crown lease L371264 in respect of the Port Hedland power 22
station; and 23
(b) any Crown easement granted in respect of the Port Hedland 24
Transmission Lines; 25
"Port Hedland Facilities" means the power station facilities 26
constructed under or pursuant to the Principal Agreement: 27
(a) at Port Hedland, comprising; 28
(i) the Port Hedland power station, at the date of this 29
Agreement on land the subject of lot 255 on 30
deposited plan 192056 contained within Crown land 31
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 8
volume 3104 folio 330 and being land the subject of 1
Crown lease L371264 in favour of the Joint 2
Venturers, comprising: 3
(A) the turbines; 4
(B) the electrical switchyard, including 5
associated on-site electrical feeders; 6
(C) the gas receival facility; 7
(D) the diesel unloading and forwarding pumps 8
and associated diesel storage tanks; 9
(E) the oily water treatment system and 10
associated evaporation pond; and 11
(F) associated plant, equipment and 12
infrastructure, including gas distribution 13
infrastructure, 14
("Port Hedland power station") and contained 15
within the boundaries of the area shown in Plan A of 16
Schedule A; 17
(ii) the 66kV transmission line from the Port Hedland 18
power station to Boodarie on the area the subject of 19
the proposed easement shown in deposited plans 20
30122, 32820, 33649 and 400582; 21
(iii) the 66kV transmission line from the Port Hedland 22
power station to the Wedgefield substation on the 23
area the subject of the proposed easement shown in 24
deposited plans 219101 and 400582; and 25
(iv) the 66kV transmission line from the Port Hedland 26
power station to the Murdoch Drive substation on the 27
area the subject of the proposed easement shown in 28
deposited plans 219101 and 400582; 29
(together, "Port Hedland Transmission Lines") and 30
contained within the boundaries of the area shown in Plan B 31
of Schedule A; and 32
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 9
(b) at Boodarie near Port Hedland, comprising: 1
(i) the turbines; 2
(ii) the electrical switchyard, including associated on-site 3
electrical feeders; 4
(iii) the gas receival facility; and 5
(iv) associated plant, equipment and infrastructure, 6
including gas distribution infrastructure; 7
located at the date of this Agreement upon General Purpose 8
Leases 45/78, 45/79, 45/89, 45/90, and 45/102 and contained 9
within the boundaries of the areas shown in Plan C of 10
Schedule A ("Boodarie power station"); and 11
(v) the underground electrical feeders connecting the 12
turbines referred to in paragraph (b)(i) above with the 13
electrical switchyard referred to in paragraph (b)(ii) 14
above as shown in Plan B of Schedule A; 15
"this Agreement", "hereof" and "hereunder" refer to this 16
Agreement, whether in its original form or as from time to time added 17
to, varied or amended. 18
2. Interpretation 19
(1) In this Agreement: 20
(a) clause headings do not affect interpretation or construction; 21
(b) words in the singular shall include the plural and words in the 22
plural shall include the singular according to the requirements 23
of the context; 24
(c) one gender includes the other genders; 25
(d) a covenant or agreement by more than one person binds, and 26
is enforceable against, those persons jointly and each of them 27
severally; 28
(e) reference to an Act includes the amendments to that Act for 29
the time being in force and also any Act passed in 30
substitution therefor or in lieu thereof and the regulations for 31
the time being in force thereunder; 32
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 10
(f) reference in this Agreement to any other document includes 1
that document as from time to time added to, varied or 2
amended and notwithstanding any change in the identity of 3
the parties; 4
(g) reference to a clause or schedule is a reference to a clause in 5
or schedule to this Agreement, and a reference to a subclause 6
or paragraph is a reference to the subclause of the clause or 7
paragraph of the clause or subclause as the case may be in, or 8
in relation to, which the reference is made; 9
(h) "including" means "including, but not limited to"; and 10
(i) reference to a "person" includes a body corporate. 11
(2) Nothing in this Agreement shall be construed to exempt the State or 12
the Joint Venturers from compliance with or to require the State or the 13
Joint Venturers to do anything contrary to any law relating to native 14
title or any lawful obligation or requirement imposed on the State or 15
the Joint Venturers as the case may be pursuant to any law relating to 16
native title. The provisions of this Agreement shall not operate so as 17
to require the State or the Land Act Minister to grant or vary, or cause 18
to be granted or varied, any lease licence or other right or title until all 19
processes necessary (if any) under any laws relating to native title to 20
enable that grant or variation to proceed, have been completed. 21
(3) Nothing in this Agreement shall be construed to exempt the Joint 22
Venturers from compliance with any requirement in connection with 23
the protection of the environment arising out of or incidental to its 24
activities under this Agreement that may be made by or under the EP 25
Act. 26
3. Ratification and operation 27
(1) This Agreement, other than this clause and clauses 1 and 2, does not 28
come into operation except in accordance with subclause (2). 29
(2) This Agreement, other than this clause and clauses 1 and 2, comes 30
into operation on the day on which it is ratified by an Act of the 31
Parliament of Western Australia ("Operative Date") unless, before 32
that day, it terminates under subclauses (4) or (5). 33
(3) The State must introduce in the Parliament of Western Australia 34
before 30 April 2014, or a later date agreed between the parties to this 35
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 11
Agreement, a Bill to ratify this Agreement and must endeavour to 1
secure its passage as an Act. 2
(4) If by 30 September 2014 this Agreement has not been ratified by an 3
Act of the Parliament of Western Australia then, unless the parties to 4
this Agreement otherwise agree, this Agreement terminates on that 5
day and no party hereto will have any claim against any other party 6
hereto with respect to any matter or thing arising out of, done, 7
performed, or omitted to be done or performed under this Agreement. 8
(5) The parties agree that, if the Principal Agreement is otherwise 9
determined in accordance with its provisions on a day prior to the 10
Operative Date, then this Agreement shall also terminate on and from 11
that day and no party hereto will have any claim against any other 12
party hereto with respect to any matter or thing arising out of, done, 13
performed, or omitted to be done or performed under this Agreement. 14
4. Termination of Principal Agreement 15
(1) Subject to subclause (2), the Principal Agreement is hereby 16
terminated with effect on and from the Operative Date and, except as 17
otherwise provided in this Agreement, neither the State nor the Joint 18
Venturers shall have any claim against the other with respect to any 19
matter or thing in or arising out of the Principal Agreement. 20
(2) Notwithstanding subclause (1): 21
(a) the Joint Venturers shall remain liable for any antecedent 22
breach or default under the Principal Agreement and in 23
respect of any indemnity given under the Principal 24
Agreement; and 25
(b) clause 14 of the Principal Agreement shall be deemed to 26
subsist in its application to the Port Hedland Facilities and the 27
Newman Facilities respectively until the earlier of: 28
(i) the grant of electricity generation and electricity 29
transmission licences or integrated regional licences 30
under the Electricity Industry Act 2004 (WA) in 31
relation to the Port Hedland Facilities and the 32
Newman Facilities (as the case may be); or 33
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 12
(ii) the date that is 12 months after the Operative Date, or 1
such later date agreed by the Minister (but not 2
exceeding 15 months after the Operative Date). 3
(3) (a) Subject to subclause (2) and on and from the Operative Date: 4
(i) the Joint Venturers as the holders of the PEPA Titles, 5
the Port Hedland Facilities and the Newman Facilities 6
shall cease to have the benefit of any rights and 7
privileges conferred by the Principal Agreement; and 8
(ii) each PEPA Title shall otherwise continue in force, 9
subject to its terms and conditions and under and 10
subject to the provisions of the Land Administration 11
Act, for a period not exceeding 3 months after the 12
Operative Date (or such greater period agreed by the 13
Minister) pending the variation of its terms and 14
conditions as contemplated by paragraph (b). 15
(b) The State acknowledges that the Joint Venturers intend to 16
make application for the grant of titles and, having regard to 17
paragraph (a), variation of the PEPA Titles under and in 18
accordance with the Land Administration Act and subject to 19
the interests and rights of third parties and the obligations of 20
the State to third parties, and to the extent relevant having 21
regard to clause 4(3)(e) of the Iron Ore Beneficiation 22
Termination Agreement, for such periods and on such terms 23
and conditions including commercial rentals and renewal 24
rights as the Land Act Minister may consider reasonable 25
having regard to the requirements of the Joint Venturers in 26
respect of the Port Hedland Facilities and the Newman 27
Facilities. As at the date of this Agreement, the parties 28
anticipate the Joint Venturers making the applications 29
described in column 2 of the table to Schedule B in respect of 30
the grant or variation, on or after the Operative Date, of titles 31
relating to the facilities described in column 1 of that table. 32
(c) The State further acknowledges that the Joint Venturers 33
intend to make application for the grant of easements for the 34
construction and operation of roads to access the Boodarie 35
power station and the Newman power station respectively 36
under and in accordance with the Land Administration Act 37
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 13
and subject to the interests and rights of third parties and the 1
obligations of the State to third parties, and to the extent 2
relevant having regard to clause 4(3)(e) of the Iron Ore 3
Beneficiation Termination Agreement, for such periods and 4
on such terms and conditions including commercial easement 5
fees as the Land Act Minister may consider reasonable. 6
(d) If the registered holders of Mineral Lease 244SA and Crown 7
lease K858923 surrender a portion of the land (including if 8
such surrender is limited to depth) that is subject to those 9
leases for the purpose of facilitating the grant to the Joint 10
Venturers of a lease under section 79 of the Land 11
Administration Act for the Newman Facilities as 12
contemplated by paragraph (b) above, the State shall, 13
notwithstanding the terms of section 19 of the Mining Act, 14
cause the Minister for Mines to exempt that portion of the 15
land from mining under that section for the term of that lease 16
(including as renewed or extended). 17
(4) (a) On and from the Operative Date the Joint Venturers will 18
indemnify and keep indemnified the State and its employees, 19
agents and contractors in respect of all actions, suits, claims, 20
demands or costs of third parties arising out of or in 21
connection with any work carried out by the Joint Venturers 22
pursuant to the Principal Agreement or relating to their 23
operations under the Principal Agreement or arising out of or 24
in connection with the construction, maintenance or use by 25
the Joint Venturers or their employees, agents, contractors or 26
assignees of the Joint Venturers' works or services the subject 27
of the Principal Agreement or the plant, apparatus or 28
equipment installed in connection with the Principal 29
Agreement. 30
(b) The indemnity in paragraph (a) shall remain in force for a 31
period ending on the date which is 20 years after: 32
(i) the date agreed between the State and the Joint 33
Venturers; or 34
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 14
(ii) if the parties fail to agree a date under 1
subparagraph (i), the date determined by the State, 2
as being the date of cessation of all operations (including as 3
expanded or otherwise modified) originally established under 4
and pursuant to the Principal Agreement (including the Port 5
Hedland Facilities and the Newman Facilities). 6
(c) The Joint Venturers will indemnify and keep indemnified the 7
State and its employees, agents and contractors in respect of 8
all actions, suits, claims, demands or costs of third parties 9
arising out of or in connection with any works or activities of 10
the Joint Venturers or their employees, agents or contractors 11
or assignees on and subsequent to the Operative Date relating 12
to operations (including as expanded or otherwise modified) 13
that were originally established under or pursuant to the 14
Principal Agreement (including the Port Hedland Facilities 15
and the Newman Facilities). 16
(d) The indemnity in paragraph (c) remains in force for a period 17
ending on the same date as the indemnity in paragraph (a). 18
5. Release of State and PEPA Minister from Deed of Assignment 19
and Covenant 1999 20
On and from the Operative Date, the Joint Venturers release the State 21
and the PEPA Minister from any obligation, liability or claim relating 22
to the acknowledgement and agreement of the State and the PEPA 23
Minister set out in clause 6 of the Deed of Assignment and Covenant 24
1999. 25
6. Assignment 26
A Joint Venturer may only assign, mortgage or charge or otherwise 27
dispose of its rights and obligations under this Agreement with the 28
consent of the Minister and such consent may be given subject to 29
conditions. 30
31
7. Applicable Law 32
This Agreement is to be interpreted according to the law for the time 33
being in force in the State of Western Australia. 34
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 15
SCHEDULE A 1
PORT HEDLAND FACILITIES AND NEWMAN FACILITIES 2
Plan A 3
Port Hedland power station 4
5
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 16
Plan B 1
Port Hedland Transmission Lines 2
3
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 17
Plan C 1
Boodarie power station 2
3
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 18
Plan D 1
Newman Facilities 2
3
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 19
SCHEDULE B 1
ANTICIPATED TENURE FOR FACILITIES 2
3
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)
4
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 20
EXECUTED as a deed. 1
2
SIGNED by THE HONOURABLE ) 3
COLIN JAMES BARNETT ) [Signature] 4
in the presence of: ) 5
6
7
8
[Signature] 9
Signature of witness 10
11
12
SCOTT FRY 13
Name of witness 14
15
16
17
18
EXECUTED by ALINTA DEWAH ) 19
PTY LTD ACN 083 051 950 ) 20
in accordance with section 127(1) of ) 21
the Corporations Act ) 22
23
24
25
[Signature] [Signature] 26
Signature of Director Signature of Secretary 27
28
29
KEN WOOLLEY MICHAEL RICHES 30
Full Name Full Name 31
32
33
Pilbara Energy Project Agreement (Termination) Bill 2013
s. 7
page 21
EXECUTED by ALINTA DEWAP ) 1
PTY LTD ACN 058 070 689 ) 2
in accordance with section 127(1) of ) 3
the Corporations Act ) 4
5
6
7
[Signature] [Signature] 8
Signature of Director Signature of Secretary 9
10
11
KEN WOOLLEY MICHAEL RICHES 12
Full Name Full Name 13
14
15
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