Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 2]
[Heading amended by No. 19 of 2010
s. 4.]
AN AGREEMENT under seal made the twenty-fourth day of November 1964 BETWEEN
the HONOURABLE DAVID BRAND, M.L.A. Premier and Treasurer of the State of
Western Australia acting for and on behalf of the said State and its
instrumentalities (hereinafter referred to as “the State”) of the
first part BP REFINERY (KWINANA) PROPRIETARY LIMITED a company which is deemed
by the BP Refinery (Kwinana) Limited Act 1962 to be incorporated under
the Companies Act 1961 , which is the assignee of “the
Company” referred to in the agreement ratified by the Oil Refinery
Industry (Anglo-Iranian Oil Company Limited) Act 1952 (Act No. 1 of
1952) and which has its registered office in the said State at Kwinana
(hereinafter referred to as “BP” which term shall include its
successors and assigns) of the second part and CSBP & FARMERS LTD. a
company incorporated under the Companies Act 1961 and having its
registered office at 133 St. George’s Terrace Perth in the said State
(hereinafter referred to as “CSBP” which term shall include its
successors and assigns) of the third part.
WHEREAS the parties hereto —
(a)
desire to enter into this Agreement with a view to the establishment and
carrying on at Kwinana of —
(i)
a plant for the manufacture of ammonia and other products
(being such a mixture of substances as to be “petroleum” within
the meaning of the agreement ratified by the said Act No. 1 of 1952) on
part of the refinery site as defined in that agreement;
(ii)
a plant on Area D (as hereinafter defined) for the
manufacture by CSBP (using the said or other ammonia) of products including
nitrogenous fertilisers.
(b)
desire to deal with certain lands for the said and other purposes.
NOW THIS AGREEMENT WITNESSETH and the parties hereto hereby covenant and agree
with one another as follows:
Interpretation 2
1. In this Agreement subject to the
context —
“Area A” means all that piece of land
(comprising 100 acres or thereabouts) delineated and coloured partly in red
and the remainder in hachure on the Plan marked “A” initialled by
or on behalf of the parties hereto for the purposes of identification and
being (subject to survey) the land more particularly described in Schedule
“A” hereto but if the boundaries of the land are altered pursuant
to clause 3 hereof means that land as so altered;
“Area B” means all that piece of land
(comprising 115 acres or thereabouts) delineated and coloured blue on the said
Plan marked “A” and being (subject to survey) the land more
particularly described in Schedule “B” hereto but if the
boundaries of the land are altered pursuant to clause 4 hereof means that
land as so altered;
“Area C” means all that piece of land
(comprising 75 acres or thereabouts) referred to in clause 4(a) of the
said recited agreement ratified by Act No. 1 of 1952 and being the land
more particularly described in Schedule “C” hereto;
“Area D” means all that piece of land
(comprising 128 acres or thereabouts) delineated and coloured partly in brown
and the remainder in hachure as aforesaid on the said Plan marked
“A” and being (subject to survey) the land more particularly
described in Schedule “D” hereto but if the boundaries of the land
are altered pursuant to clause 6 hereof means that land as so altered;
“Area E” means all that piece of land
enclosed by the prolongation easterly of the southern boundary of Area B the
prolongation southerly of the eastern boundary of Area B and the south-east
boundary of Area B and being the land delineated and coloured green on the
said Plan marked “A”.
“associated company” means
(a) any
company notified in writing by CSBP to the Minister which is incorporated in
the Commonwealth of Australia and which is —
(i)
a subsidiary of CSBP within the meaning of the term
“subsidiary” in section 6 of the Companies Act 1961 ;
or
(ii)
a company in which CSBP holds not less than thirty per
cent (30%) of the issued ordinary share capital; and
(b) any
company approved in writing by the Minister for the purposes of this Agreement
which is associated directly or indirectly with CSBP in its business or
operations hereunder;
“bulk cargo” means the bulk materials
used or manufactured by CSBP and consigned for shipment or consigned for use
by CSBP in connection with its operations;
“diversion road” means Pioneer Road
from the intersection of Ocean Street to the intersection of Gulf Street with
projection north-easterly until Mandurah Road is intersected;
“KNC” means the company incorporated
under the name of Kwinana Nitrogen Company Proprietary Limited;
“Minister” means the Minister of the
Crown to whose administration the ratifying Act is for the time being
committed and otherwise the Minister for Industrial Development;
“Commissioners” means the Fremantle
Harbour Trust Commissioners constituted under the Fremantle Harbour Trust
Act 1902 ;
“ratifying Act” means the Act referred
to in clause 2(1) hereof;
“refinery site” has the same meaning
as in the said recited agreement ratified by Act No. 1 of 1952;
“the said State” means the State of
Western Australia;
“ton” means a ton of 2,240 pounds
weight;
“TP Board” means the Town Planning
Board constituted under the Town Planning and Development Act 1928 ;
“wharf” includes jetty structure.
Any reference in this Agreement to an Act means
that Act as amended from time to time and includes any Act passed in
substitution for that Act and any regulations and by-laws made and for the
time being in force under any such Act.
Marginal notes shall not affect the interpretation
or construction hereof 2 .
Operation 2
2. (1) This Agreement
shall be of no force or effect unless ratified by an Act of the Parliament of
Western Australia which Act comes into operation before the 28th day of
February, 1965 but if the Act so comes into operation the following provisions
shall thereupon apply operate and take effect —
(a) the
State may by agreement acquire or compulsorily take or resume as for a public
work within the meaning of the Public Works Act 1902 any land or any
estate or interest in land which in the opinion of the State is reasonably
required for the purposes of this Agreement and may thereafter dispose of or
deal with the same in accordance with or for the purposes of this Agreement
apart from the provisions of that Act;
(b)
rights and obligations herein created conferred or imposed shall have
statutory effect as if enacted by the ratifying Act; and
(c) no
Act regulation or by-law shall operate so as to prevent the State from
fulfilling its obligations hereunder in accordance with and subject to the
provisions hereof.
(2) If the ratifying
Act does not so come into operation, none of the parties hereto shall have any
claim against either or both of the others of them by reason of anything
herein contained.
Area A 2
3. (1) As soon as
conveniently may be after the coming into operation of the ratifying Act BP
will submit to the TP Board a plan of subdivision of the refinery site in a
form already approved (subject to survey) by the parties hereto and initialled
by them or on their behalf for the purposes of identification or in any
altered form upon which the parties hereto may mutually agree.
(2) The said plan of
subdivision shall delineate separately the portions of Area A coloured red and
hachured respectively as referred to in the definition of Area A in
clause 1 hereof.
(3) The TP Board
having prior to the execution hereof considered and tentatively approved the
plan of subdivision referred to in subclause (1) of this clause will on
the formal submission hereafter of the said plan or in any altered form as in
this clause provided approve thereof without alteration thereto and without
the affixing of any conditions or approval except such alterations and/or
conditions if any as the parties hereto shall all agree to accept. The
approval of the TP Board under this subclause shall be deemed to be an
approval within the meaning and for the purposes of the Town Planning and
Development Act 1928 .
(4) In exchange for
and in consideration of the transfer of an estate in fee simple free of trusts
and encumbrances in Area B as mentioned in clause 4 hereof BP shall
transfer to the State which shall take an estate in fee simple free of
encumbrances in Area A subject to any alterations which the parties hereto
shall have all agreed to accept as aforesaid.
(5) Possession of Area
A shall be given to the State concurrently with the giving to BP of possession
of Area B as hereinafter mentioned or on such other date if any as the State
and BP may mutually agree upon.
(6) So much of Area A
as is delineated and coloured red on the said plan but excluding the land
between high and low water marks on the seashore (subject to any alteration
agreed upon by all parties hereto as aforesaid) shall be deemed held and may
be dealt with under the provisions of the Industrial Development (Resumption
of Land) Act 1945 as if acquired under section 11(1b) of that Act.
Area B 2
4. (1) As soon as
conveniently may be after the coming into operation of the ratifying Act the
State shall —
(a)
acquire or compulsorily take or resume an estate in fee simple free of
encumbrances in so much of Area B as then remains unalienated from the Crown;
(b)
submit to the TP Board a plan of subdivision showing Area B in a form already
approved (subject to survey) by the parties hereto and initialled by them or
on their behalf for the purposes of identification or in any altered form upon
which the parties hereto may mutually agree;
(c)
cause the construction of the diversion road to be completed by the 31st day
of August, 1965 and by that day to be opened to traffic;
(d) in
exchange for and in consideration of the transfer of an estate in fee simple
free of encumbrances in Area A by instrument under the hand of the State
transfer to BP which shall take an estate in fee simple free of trusts and
encumbrances in Area B including the closed portions of roads mentioned in
subclause (3) of this clause whereupon the provisions of the Industrial
Development (Resumption of Land) Act 1945 and of the Industrial
Development (Kwinana Area) Act 1952 shall be deemed to have been duly
complied with and to be no longer applicable to Area B.
(2) The TP Board
having prior to the execution hereof considered and tentatively approved the
plan of subdivision referred to in subclause (1) of this clause will on
the formal submission hereafter of the said plan or in any altered form as in
this clause provided approve thereof without alteration thereto and without
the affixing of any conditions of approval except such alterations and/or
conditions if any as the parties hereto shall all agree to accept. The
approval of the TP Board under this subclause shall be deemed to be an
approval within the meaning and for the purposes of the Town Planning and
Development Act 1928 .
(3) By force of this
Agreement and of the ratifying Act and with effect from the date possession is
given of Area B as hereinafter mentioned —
(a) all
those portions of roads as at date hereof lie within Area B (being portions of
Rockingham Road, Gulf Street and Richardson Street) shall be closed;
(b) all
rights of way over those portions of the roads so closed shall cease;
(c)
those portions of the roads so closed shall for all purposes be deemed to be
added to and to form part of Area B and shall vest in Her Majesty as for an
estate in fee simple in possession under the operation of the Transfer of
Land Act 1893 ;
(d) Area
B with those additions shall be deemed for all purposes (including those of
the said recited agreement ratified by Act No. 1 of 1952) to form part of
the refinery site in lieu of Area A; and
(e) Area
A shall cease for all such purposes to form part of the refinery site;
and the said recited Act No. 1 of 1952 and the agreement ratified by that
Act will be deemed amended or altered and read and construed accordingly.
(4) The Registrar of
Titles shall on the application of the registered proprietor for the time
being of the refinery site and on payment of the prescribed fee cancel the
relative certificate or certificates of title to the refinery site as it
exists at the date hereof and issue a new certificate or new certificates of
title in which Area B with the addition of those portions of the roads so
closed will be included within the refinery site and Area A will be excluded
therefrom.
(5) Possession of Area
B (subject to any leases or tenancies of which notice in writing has been
given to BP prior to possession) shall be given on the 1st day of September,
1965, or on such earlier date if the diversion road is completed before the
31st day of August, 1965 as the State and BP agree.
Area C 2
5. BP shall sell to the State which shall purchase
an estate in fee simple free of encumbrances in Area C for the sum of Seven
Hundred and fifty pounds (£750) payable in full on acceptance for
registration of a transfer of the land. Vacant possession of the land will
thereupon be given to the State and Area C shall be deemed held and may be
dealt with under the provisions of the Industrial Development (Resumption of
Land) Act 1945 as if acquired under section 11(1b) of that Act.
Area D 2
6. (1) As soon as
conveniently may be before or after the approval by the TP Board of the plan
of subdivision mentioned in clause 4 hereof the State
shall —
(a)
acquire or compulsorily take or resume an estate in fee simple free of
encumbrances in so much of Area D as then remains alienated from the Crown;
(b)
submit to the TP Board a plan of subdivision showing Area D in a form already
approved (subject to survey) by the parties hereto and initialled by them or
on their behalf for the purposes of identification or in any altered form upon
which the parties hereto may mutually agree;
(c) sell
to CSBP which shall purchase an estate in fee simple free of trusts and
encumbrances in Area D (subject to any alterations which the parties hereto
shall have all agreed to accept as referred to in clause 3 hereof but
including the closed portions of roads mentioned in subclause (4) of this
clause) for the price calculated at the rate of £750 per acre, payable in
three equal instalments the first of which instalments shall be paid on the
31st day of December, 1965, the second of which instalments shall be paid on
the 31st day of December, 1968 and the third of which instalments shall be
paid on the 31st day of December, 1970 provided that CSBP shall be at liberty
to pay to the State the whole or balance of the purchase price of Area D at
any time and the State shall by instrument under its hand transfer the land
comprised in Area D to CSBP when the purchase price therefor is paid in full.
(2) Upon the sale as
aforesaid the provisions of the Industrial Development (Resumption of Land)
Act 1945 and of the Industrial Development (Kwinana Area) Act 1952
shall be deemed to have been duly complied with and to be no longer applicable
to Area D.
(3) The TP Board
having prior to the execution hereof considered and tentatively approved the
plan of subdivision referred to in subclause (1) of this clause will on
the formal submission hereafter of the said plan or in any altered form as in
this clause provided approve thereof without alteration thereto and without
the affixing of any conditions of approval except such alterations and/or
conditions if any as the parties hereto shall all agree to accept. The
approval of the TP Board under this subclause shall be deemed to be an
approval within the meaning and for the purposes of the Town Planning and
Development Act 1928 .
(4) By force of this
Agreement and the ratifying Act and with effect from the date possession is
given pursuant to subclause (7) of this clause —
(a) all
those portions of roads (including any Metropolitan Regional Road) as at date
hereof lie within Area D shall be closed;
(b) all
rights of way over those portions of the roads so closed shall cease; and
(c)
those portions of the roads so closed shall for all purposes be deemed to be
added to and to form part of Area D and shall vest in Her Majesty as for an
estate in fee simple in possession under the operation of the Transfer of
Land Act 1893 .
(5) The Registrar of
Titles shall on the application of CSBP or other the person or company for the
time being registered or entitled to be registered as the proprietor of Area D
and on payment of the prescribed fee cancel the relative certificate or
certificates of title to the whole or part of Area D and issue a new
certificate or new certificates of title for Area D which will include those
portions of the roads so closed (but subject to alteration if any as agreed by
all the parties hereto as aforesaid).
(6) On the day
possession is given of Area D as hereinafter mentioned CSBP will pay to the
State as a contribution towards the cost of constructing the diversion road
adjacent to the eastern boundary of Area D a sum calculated on the length of
the closed portion of Rockingham Road within Area D and computed at the rate
of £11,000 per mile.
(7) Possession of Area
D (or if altered as aforesaid then as altered) shall be given to CSBP
concurrently with the giving to BP of possession of Area B as hereinbefore
mentioned or on such other date if any as the parties hereto may mutually
agree upon.
(8) Upon the
completion of the construction of the wharf the westward end of the southern
boundary of Area D shall be adjusted and formed in manner following, namely,
by a line commencing from the centre point of the shore end of the wharf if
the wharf is in the form of a jetty or otherwise from such point of the wharf
as the State and CSBP agree upon being extended inland for a distance of ten
(10) chains beyond high water mark and parallel with the general direction of
the then existing southern boundary of Area D and being joined to the then
existing southern boundary of Area D by the shortest route.
(9) The land (within
Area D) south and west of the line referred to in the preceding subclause
shall be the subject of a plan of subdivision and be submitted to the TP Board
and it shall be the duty of the TP Board to approve such plan without
alteration thereto and without the affixing of any conditions of approval
except such alterations and/or conditions if any as the State shall agree to
accept and the approval of the TP Board under this subclause shall be deemed
to be an approval by the TP Board within the meaning and for the purposes of
the Town Planning and Development Act 1928 .
(10) Forthwith after
the submission of the plan of subdivision mentioned in the preceding subclause
the land the subject thereof shall by force of this Agreement be excised from
Area D and thereupon vest in Her Majesty as for an estate in fee simple in
possession and shall be deemed held and may be dealt with under the provisions
of the Industrial Development (Resumption of Land) Act 1945 as if
acquired under section 11(1b) of that Act. In respect of land so vested
the State shall pay to CSBP compensation therefor computed at the same price
per acre as CSBP paid to the State per acre for Area D.
(11) If at any time
hereafter Her Majesty becomes possessed of such an estate as to be able to
transfer to CSBP an estate in fee simple in both or either of the areas
adjoining the southern boundary of Area D and shown coloured yellow and purple
on the plan marked A and the TP Board approves or will approve of the plan of
subdivision in respect of both or either of those areas then the Minister
shall as soon as conveniently may be thereafter grant to CSBP an option to
purchase both or either (as the case may be) of those areas at a price to be
computed at the average price per acre paid by or on behalf of Her Majesty to
acquire the alienated portions of the area or areas the subject of the option
at the time or respective times of the exercise of the option. If CSBP desire
to exercise the option it shall give notice to the Minister within the
twenty-eight (28) days next following the receipt by it of the option, and the
purchase price shall be paid by CSBP within the fourteen days next following a
notice to CSBP advising it of the amount of the purchase price.
Area E 2
7. (1) As soon as
conveniently may be after the coming into operation of the ratifying Act the
State shall acquire or compulsorily take or resume an estate in fee simple
free of encumbrances in all or so much of the land comprised in Rockingham
Lots 382, 383, 384 and 385 as then remains alienated from the Crown.
(2) In the event
of —
(a)
there being a re-alignment of so much of Pioneer Road and the railway (which
is hereafter to be constructed along the north-western side of the road) as is
within Area E, and
(b) the
whole or portion of the land within Area E which adjoins the south-eastern
boundary of Area B is in the absolute opinion of the State no longer required
for road or railway purposes
then the Minister shall as soon as conveniently may be thereafter grant to BP
an option to purchase the whole or that portion of that said land at the
current market price of land in the neighbouring area thereof upon and subject
to the provisions contained in subclause (3) of this clause.
(3) If BP desires to
exercise the option BP shall give notice to the Minister within the three (3)
calendar months next following the receipt by it of the option and pay the
purchase price therefor within the twenty-eight (28) days next following the
notice from the Minister advising it of the amount of the purchase price.
(4) If at any time
prior to the re-alignment of Pioneer Road or the railway as mentioned in
subclause (2) of this clause the State requires any portion of Area E for
the purposes of industrial development the State shall be released and
discharged from its obligations to BP under that subclause on giving to BP a
notice stating that such land is so required and such notice shall be
conclusive evidence that the land is required for the purposes of industrial
development.
Further assurance 2
8. The parties hereto shall execute deliver and do
all such documents acts and things as may be necessary or expedient to
implement or give effect to the provisions hereof.
Exemptions from Stamp Duties 2
9. This Agreement and the documents necessary to
give effect to the foregoing provisions hereof shall be exempt from stamp
duties payable under the laws of the said State.
Terms of Agreement 2
10. This clause and the remaining provisions of
this Agreement subject to clause 28 hereof will continue in force until
and expire on the 1st day of January, 2014 unless CSBP by notice in writing to
the State not later than the 1st day of January 2010 requires extension for
such further period not exceeding twenty years as CSBP may nominate in such
notice and this clause and the remaining provisions of this Agreement save for
the right of renewal shall thereupon be extended accordingly.
Construction of plant 2
11. (1) CSBP will
before the 30th day of June 1966 commence to erect and thereafter will
diligently proceed with the construction and establishment on Area D of a
plant estimated to cost (inclusive of all necessary ancillary buildings work
plant equipment wharf and services) Five million pounds (£5,000,000) and
designed to produce and capable of producing not less than a total of one
hundred thousand (100,000) tons of nitrogenous fertilisers and related
products per annum and shall by the 31st day of December 1968 complete the
construction and establishment aforesaid.
(2) Subject to the
laws for the time being in force in the said State CSBP shall at all times in
relation to such construction and establishment and in equipping and operating
the said plant comply with accepted modern practice.
Wharf 2
12. (1) If the State
desires the Commissioners to construct or to cause to be constructed in
Cockburn Sound a wharf portion of which will be suitable for the operations of
CSBP BP and KNC and which portion the State shall cause the Commissioners to
set aside and reserve for the operations of CSBP, BP and KNC (which portion is
hereinafter referred to as the “CSBP portion”) the State shall by
or before the 31st day of January 1965 give notice to CSBP of its desire so to
do.
(2) As soon as
conveniently may be after giving that notice the State will cause the
Commissioners to commence or to cause to be commenced and by the 31st day of
December 1968 or by such other day as CSBP nominates (provided that CSBP gives
to the Commissioners not less than twelve (12) calendar months’ notice
of such other day) to complete or to cause to be completed the construction of
the CSBP portion (providing forty (40) feet depth at low water mark) and
approaches to the CSBP portion.
(3) Unless CSBP
advises the State by notice on or before the 31st day of July 1965 of its
intention to instal on that wharf such conveyors cranes appliances and
facilities as are suitable for the efficient loading and discharge of vessels
at the CSBP portion for the purposes of the operations of CSBP hereunder the
State will cause the Commissioners to construct and instal those conveyors
cranes appliances and facilities.
(4) The State will
cause the CSBP portion to be constructed in such location and in accordance
with such plans and specifications as are to the reasonable satisfaction of
CSBP and BP.
(5) The State will at
all times during the currency of this Agreement cause the Commissioners to
maintain or to cause to be maintained in good order and condition the CSBP
portion and the approaches thereto constructed under this clause.
(6) If the CSBP
portion is constructed pursuant to the provisions of this clause then CSBP, BP
and KNC will respectively pay to Commissioners for their respective goods
which are discharged upon or over or shipped from the CSBP portion the
appropriate prescribed wharf charges applicable to the Inner Harbour cargoes
except that for the period expiring on the 1st day of January 1988 in respect
of bulk cargoes the wharf charges shall not be in excess of 2/9 per ton
unless the inward general cargo rate for the Inner Harbour is increased above
13/6 per ton and from the date or respective dates of any such increase or
increases the bulk wharf charges will increase in like proportion.
(7) Where and to the
extent that the CSBP portion may be used by third parties without unduly
hindering the operations of CSBP BP and KNC hereunder (a matter which shall be
within the sole determination of CSBP) CSBP will permit the CSBP portion to be
used by any other person or corporation for the handling of inward and outward
cargo upon terms and conditions (including charges) to be determined by the
Commissioners from time to time.
CSBP’s wharf 2
13. (1) If the State
is not desirous of constructing or causing to be constructed the wharf
referred to in and pursuant to the provisions of clause 12 hereof then
CSBP at its own expense and risk in all things but in close liaison with the
Commissioners shall construct with all convenient speed a wharf suitable for
the operations of CSBP hereunder but in all things subject to the approval of
the Commissioners. Any dispute or difference between CSBP and the
Commissioners under this clause shall be referred to and determined by the
Minister whose decision shall be final and binding for all purposes.
(2) CSBP will at all
times maintain in good order and condition the wharf and shore approaches
within Area D and be responsible for proper insurance thereof.
(3) Where and to the
extent that the wharf may be used by third parties without unduly hindering
the operations of CSBP hereunder (a matter which shall be within the sole
determination of CSBP) CSBP will permit the wharf to be used by any other
person for the handling of inward and outward cargo upon terms and conditions
(including charges) to be determined by the Commissioners from time to time
provided however, that the collection and allocation of charges as between
CSBP and the Commissioners shall be determined by mutual agreement between
CSBP and the Commissioners.
(4) Subject to the
provisions hereof and to the control of the Commissioners in the discharge of
their statutory functions and powers CSBP shall be entitled to use the wharf
for its purposes hereunder and to control and manage it free of rental or
license fee.
(5) CSBP will
indemnify and keep indemnified the State against all actions claims costs and
demands (not based on or arising out of the negligence of the State its agents
servants or third party contractors) arising out of or in connection with the
construction maintenance or use of its wharf and the operations on and from
its wharf.
(6) BP and KNC shall
each have the right to use CSBP’s wharf upon the same terms and
conditions as are made available to CSBP by the Commissioners.
(7) Within
6 months after the end or sooner determination of the currency of this
Agreement CSBP may (except in so far as the State and CSBP may otherwise in
writing mutually agree and subject to the next succeeding subclause) remove
and carry away from the wharf (whether constructed under this or the
immediately preceding clause) such plant equipment and removable buildings as
it has installed constructed or placed thereon and shall fill in and
consolidate and level off all holes and excavations thereby resulting and if
within such period of 6 months CSBP fails so to consolidate and level off
the State may so consolidate and level off and CSBP shall on demand pay to the
State the amount of the costs and expenses so incurred and the plant equipment
and removable buildings not removed by CSBP within the period aforesaid shall
become the absolute property of the State.
(8) In the event of
CSBP deciding to remove the said plant equipment and removable buildings it
shall not do so without first notifying the State in writing of that decision
and thereby granting to the State an option exercisable within 3 months
of the service of such notice to purchase at valuation in situ the said plant
equipment and removable buildings or any of them. Such valuation if not
mutually agreed shall be made by such competent valuer as the State and CSBP
may appoint or failing agreement as to such appointment then by two competent
valuers one to be appointed by each party or by an umpire appointed by such
valuers should they fail to agree.
Electricity 2
14. Subject to reasonable notice in writing
from time to time of CSBP’s requirements as to industrial electric power
for both construction and operations purposes hereunder The State Electricity
Commission of Western Australia will supply to the boundary of Area D fifty
(50) cycle power on the Commission’s terms and conditions for the time
being for industrial users in the Metropolitan Area for the supply of such
power to meet CSBP’s reasonable requirements in that regard but not
exceeding 25,000 k.v.a. at any time without the Commission’s consent.
Sea water 2
15. CSBP may at its own cost in all things draw
and use sea water for cooling purposes in its operations hereunder from such
positions in Cockburn Sound as the Commissioners shall from time to time
approve. Sea water so drawn may be returned to the sea in such positions as
aforesaid admixed with effluent from manufacturing operations hereunder
provided that the discharge is not dangerous or injurious to public health.
Potable water 2
16. (1) Subject to
reasonable notice in writing from time to time of CSBP’s requirements as
to potable water for its purposes hereunder the Metropolitan Water Sewerage
and Drainage Board shall provide to the boundary of Area D on that
Board’s terms and conditions for the time being prevailing for excess
water supplied for industrial purposes such quantities of potable water as
will meet CSBP’s reasonable requirements in that regard but not
exceeding two million (2,000,000) gallons in any one week without the said
Board’s consent.
(2) The State agrees
that CSBP may sink on Area D such wells and bores into the sub-soil as CSBP
thinks fit to a depth not exceeding Reduced Level Low Water Mark Fremantle
minus five hundred (500) feet for the purpose of obtaining water for its
purposes hereunder and the water so obtained and used will not be the subject
of a charge by the State: Provided always that without the prior approval in
writing of the said Board no well or bore shall be sunk within two chains of a
boundary of Area D other than the western boundary and no well or bore shall
in any event be sunk to a depth which shall cause the artesian basin to be
tapped. CSBP will on request by the State from time to time give to the State
particulars of the number depth and kind of wells and bores sunk by it and the
precise situation of each respectively and the quantities and quality of water
obtained from each respectively.
(3) CSBP shall so far
as is reasonably practicable recirculate on its said plant the potable water
used for cooling and/or processing purposes therein.
Harbour charges 2
17. (1) If a wharf is
constructed pursuant to the provisions of clause 13 hereof then the rates
charges and dues mentioned in the succeeding subclauses of this clause shall
be chargeable.
(2) CSBP BP and KNC
shall in relation to their respective goods which are discharged upon or over
or shipped from its wharf pay to the Commissioners wharf charges as set out
below: —
(a) On
all inwards and outwards bulk cargoes
|
Rate per Ton | |
|
Up to 100,000 tons per annum................. |
1/4.5d. |
|
Over 100,000 tons but not exceeding 200,000 tons per
annum....................... |
|
|
Over 200,000 tons but not exceeding 300,000 tons per
annum....................... |
|
|
Over 300,000 tons but not exceeding 400,000 tons per
annum....................... |
|
|
Over 400,000 tons but not exceeding 500,000 tons per
annum....................... |
|
|
Over 500,000 tons per annum.................. |
8.25d. |
Wharf charges will be assessed on the aggregate of
all inwards and outwards bulk cargoes during each financial year (commencing
on the first day of July) at the rate appropriate to such aggregate and upon
any alterations in the Commissioners general cargo Inner Harbour rate for
wharfage on inwards goods for which other specific rates are not provided as
fixed at the completion of review of rates in progress at the date hereof
(hereinafter in this paragraph referred to as “the basic rate”)
the rates shall increase or decrease proportionately to the alterations in the
basic rate for the time being.
(b) On
inwards and outwards cargoes, other than bulk cargoes and manufactured goods
mentioned in paragraph (c) hereof
A sum equal to 25 per
centum of the appropriate prescribed general cargo rates applicable to
Fremantle Harbour Trust Inner Harbour cargoes (which rates as at the date of
this Agreement are thirteen shillings and sixpence (13s. 6d.) per ton for
inward cargoes and ten shillings (10s. -d.) per ton for outward cargoes).
(c) On
locally manufactured goods of CSBP exported in bagged or packaged form
50% of whatever rate
may be prescribed from time to time for locally manufactured goods exported
through the Inner Harbour.
(3) No charges shall
be levied by the Commissioners in respect of vessels using CSBP’s wharf,
other than —
(a)
tonnage rates from time to time levied by the Commissioners for the Port of
Fremantle on the gross registered tonnage of vessels;
(b) the
usual charges from time to time prevailing made by the Commissioners in
respect of pilotage the bunkering of vessels and/or services rendered to or in
respect of any vessel by the Commissioners.
(4) Save as aforesaid
no other charges or dues (except for services actually rendered at the request
of CSBP) shall be levied by the Commissioners or any other State authority
upon inwards and outwards cargoes belonging to CSBP discharged upon or over or
shipped from its wharf.
Rail connection 2
18. The State will ensure that Area D will be
connected by rail to both the now existing narrow and the future proposed
standard gauge railway systems.
Assignment 2
19. (1) CSBP with the
consent in writing of the State shall have the right to assign or dispose of
all or part of its rights and obligations under this Agreement or any interest
therein or acquired thereunder and such consent shall not be arbitrarily or
unreasonably withheld subject to the assignee or assignees executing in favour
of the State a deed of covenant to comply with and observe the assigned
obligations.
(2) When under the
provisions of subclause (1) of this clause any interest of CSBP is
disposed of or assigned to a company being at the date of disposal or
assignment an associated company the State will not levy or exact any State
Stamp Duties in respect of that disposal or assignment if effected for the
purpose of construction reconstruction or reorganisation: PROVIDED THAT such
disposal or assignment takes place prior to the 31st day of March 1972.
No acquisition of works 2
20. The State agrees that having regard to the
particular nature of the industry proposed to be established by CSBP under
this Agreement and subject to the performance by CSBP of its obligations
hereunder the State will not resume or suffer or permit to be resumed by any
State instrumentality or by any local or other authority of the said State any
portion of Area D or of the wharf (constructed under clause 13 hereof)
the resumption of which would impede CSBP’s activities nor will the
State create or grant or permit or suffer to be created or granted by an
instrumentality or authority of the said State as aforesaid any road right of
way or easement of any nature or kind whatsoever over or in respect of Area D
without the consent in writing of CSBP first having been obtained which
consent shall not be arbitrarily or unreasonably withheld.
Preservation of rights 2
21. The State hereby covenants and agrees with
CSBP that subject to the due performance by CSBP of its obligations under this
Agreement the State shall ensure that during the currency of this Agreement
the rights of CSBP hereunder shall not in any way through any act of the State
be impaired disturbed or prejudicially affected; PROVIDED THAT nothing in this
clause shall apply to any law or requirement relating to safety.
Taxes and charges 2
22. The State shall not impose nor permit nor
authorise any of its agencies or instrumentalities or any local or other
authority to impose discriminatory taxes rates or charges of any nature
whatsoever on or in respect of the titles property or other assets products
materials or services used or produced by or through the operations of CSBP in
the conduct of business incidental to its business hereunder nor will the
State take or permit to be taken any other discriminatory action which would
deprive CSBP of full enjoyment of the rights granted and intended to be
granted under this Agreement.
Rating 2
23. Notwithstanding the provisions of any Act or
anything done or purporting to be done under any Act the valuation of Area D
shall for rating purposes be or be deemed to be on the unimproved value and
shall not in any way be subject to any discriminatory rate: PROVIDED HOWEVER
that nothing in this clause shall apply to any portion of Area D which shall
be occupied as a permanent residence or upon which a permanent residence shall
be erected.
Delegation to third parties 2
24. Without affecting the liability of the parties
under the provisions of this Agreement either party shall have the right from
time to time to entrust to third parties the carrying out of any portion of
the operations which it is authorised or obliged to carry out under this
Agreement.
Prices 2
25. The State will not at any time by legislation
regulation or administrative action under any legislation of the said State as
to prices prevent products produced by CSBP from being sold at prices which
will allow CSBP to provide for such reasonable depreciation reserves and
return on the capital employed in the production of those products as are
determined by CSBP.
Dredging 2
26. Subject to the approval in writing of the
Commissioners as to times method and extent of dredging and to the depositing
of spoil CSBP may at its own expense in all things carry out any dredging
within Cockburn Sound reasonably required by CSBP for its operations
hereunder.
Effluent 2
27. (1) Subject to the
provisions of this clause CSBP may discharge into Cockburn Sound into water
not less than eight (8) fathoms deep at low water mark up to three hundred and
fifty (350) tons in any one day of gypsum being effluent from the operations
of CSBP hereunder.
(2) The discharge will
be through pipes laid and maintained by CSBP at its expense in all things but
in positions directed or approved by the Commissioners.
(3) (a)
CSBP will be responsible for and carry out all
dredging of Cockburn Sound that becomes necessary to remedy any shallowing or
other alteration of the sea bed caused by the discharge of gypsum into the
said Sound.
(b) The
Commissioners may when and as often as in its opinion it becomes desirable
that the said dredging be carried out notify CSBP in writing that it is
required to dredge and remove gypsum discharged into Cockburn Sound to the
extent required and to the locations specified by the Commissioners.
(c) If
CSBP does not to the satisfaction of the Commissioners dredge and remove the
gypsum to the extent so required and to the locations so specified within a
period of 12 months after receipt of the said notice then the
Commissioners may carry out the dredging and removal of gypsum to the extent
required and to the locations so specified and the cost thereof shall be paid
by CSBP to the Commissioners.
Default 2
28. (1) Subject to
clause 30 hereof relating to delays if at any time during the continuance
of this Agreement —
(a) CSBP
fails to comply with or carry out any of the obligations on its part contained
herein or abandons or repudiates this Agreement the State may by notice in
writing to CSBP specifying the failure terminate this Agreement;
(b) the
State fails to comply with or carry out any of the obligations on its part
contained herein CSBP may by notice in writing to the State specifying the
failure terminate this Agreement.
(2) The notice of
termination shall be deemed to have been received on the day following its
postage and shall take effect twelve (12) months after that date unless the
State or CSBP as the case may be shall in the meantime have remedied the
failure or shown to the satisfaction of the other party earnest intent to do
so.
Variation 2
29. Any right or obligation herein contained
affecting any two or more of the parties hereto may from time to time by the
relevant parties affected be added to cancelled or varied to the extent that
it is necessary so to do for the more efficient fulfilment of the objectives
of this Agreement and references to this Agreement shall be deemed to be to
this Agreement as varied in accordance with this clause.
Delays 2
30. (1) This Agreement
shall be deemed to be made subject to any delays in the performance of
obligations under this Agreement which may be occasioned by or arise from
circumstances beyond the power and control of the party responsible for the
performance of such obligations including delays caused by or arising from act
of God act of war force majeure act of public enemies floods and washaways
strikes lockouts stoppages restraint of labour or other similar acts (whether
partial or general) shortages of labour or essential materials reasonable
failure to secure contractors delays of contractors riots and civil commotion
and delays due to overall Australian economic conditions or factors which
could not reasonably have been foreseen.
(2) This clause shall
apply only to delays of which and of the cause of which notice in writing is
given by the party subject to the delay to the other party hereto within one
month of the commencement of the delay.
North Fremantle site 2
31. (1) CSBP covenants
and undertakes
(a) not
to extend or enlarge the manufacturing capacity of its factory or works at
present carried on at North Fremantle (in this clause referred to as
“the said site”);
(b) to
vacate the said site and cease thereon carrying on the manufacture of
superphosphate or any other manufacturing or industrial process whatsoever on
or before the expiration of the term of the leases under which it is at
present in occupation of the said site at North Fremantle.
(2) The State
undertakes that the said site at North Fremantle will not be made available to
any person or corporation for the purpose of carrying on any heavy or light
industrial manufacturing business within the meaning of any town planning or
zoning enactment or regulations or schemes applying from time to time to the
area without first giving to CSBP the opportunity to carry on business at the
said site on terms and conditions not less favourable than those proposed to
be offered to the person or corporation to whom it is otherwise proposed to
make the said site available except that the area will not be made available
to any fertilizer chemical or petroleum industry without the prior approval of
CSBP.
State law to apply 2
32. This Agreement shall be interpreted according
to the laws for the time being in force in the said State.
Arbitration 2
33. Any dispute or difference between any two or
more of the parties arising out of or in connection with this Agreement or as
to the construction of this Agreement or of any variation thereof or as to the
rights duties or liabilities of any party hereunder or as to any matter to be
agreed upon between any two or more of the parties in terms of 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 and settled by
arbitration under the provisions of the Arbitration Act 1895 .
Notices 2
34. Any notice consent option or other writing
authorised or required by this Agreement to be 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 direction of the Minister and forwarded by prepaid post
to the addressee being a party hereto at its registered office in the said
State and by either of the other parties hereto if signed on behalf of that
party by a director manager secretary or attorney of that party and forwarded
by prepaid post to the Minister and any such notice option consent or writing
shall be deemed to have been duly given on the day on which it would be
delivered in the ordinary course of post.
SCHEDULE A.
AREA A.
All that portion of land bounded by lines starting
from a point on the north-western side of Rockingham Road situate 12 and one
tenth links north-easterly from the intersection of that side with the
prolongation north-westerly of the north-eastern side of Beach Street and
extending south-westerly along that side of Rockingham Road aforesaid to the
southern corner of lot 1 of Cockburn Sound locations 244 and 704 as shown on
Land Titles Office 3 diagram 16889; thence north-westerly and generally
northerly along boundaries of that lot to a point situate 270 degrees from the
starting point and thence 90 degrees 34 chains 9 and seven tenths links to
that point; being part of lot 1 aforesaid and being the land delineated and
coloured partly in red and the remainder in hachure on the said Plan marked
“A”.
SCHEDULE B.
AREA B.
All that portion of land bounded by lines starting
from the intersection of the north-western side of Rockingham Road with the
western side of Mandurah Road and extending south-westerly 4 chains 92 and
nine tenths links along that side of Mandurah Road and onwards 180 degrees 19
minutes 34 chains 14 and one tenth links; thence 186 degrees 3 minutes 2
chains 79 and six tenths links; thence 197 degrees 31 minutes 2 chains 79 and
six tenths links; thence 208 degrees 58 minutes 2 chains 79 and six
tenths links; thence 214 degrees 42 minutes 16 chains 43 links; thence
270 degrees 29 chains 81 and eight tenths links to the north-western side of
Rockingham Road aforesaid and thence north-easterly along that side to the
starting point; being lots 321, 322, 325 to 328 inclusive and 331 of Cockburn
Sound location 244 as shown on Land Titles Office 3 plan 3837, lots 335
to 351 inclusive and 357 to 364 inclusive as shown on Lands Titles Office
3 plan 3836, lots 4 to 7 inclusive as shown on Lands Title Office
3 diagram 21109, lots 1, 2 and 3 as shown on Land Titles Office 3
diagram 13500, parts of lots 315 to 320 inclusive, 332 and 333 as shown on
Land Titles Office 3 plan 3837 aforesaid, parts of lots 334, 352 to 356
inclusive, 365 to 369 inclusive and 371 as shown on Land Titles Office 3
plan 3836 aforesaid together with parts of Rockingham Road, Gulf Street and
Richardson Street and being the land delineated and coloured blue on the said
Plan marked “A”.
SCHEDULE C.
AREA C.
ROCKINGHAM LOT 639.
SCHEDULE D.
AREA D.
All that portion of land bounded by lines starting
from a point on the north-western side of Rockingham Road situate 12 and one
tenth links north-easterly from the intersection of that side with the
prolongation north-westerly of the north-eastern side of Beach Street and
extending 90 degrees 29 chains 81 and eight tenths links; thence 214
degrees 42 minutes 29 chains 39 and nine tenths links; thence 270 degrees
17 chains 3 and nine tenths links to the eastern corner of lot 7 of
Cockburn Sound location 244 as shown on Land Titles Office 3 diagram
14302; thence north-westerly along the north-eastern boundaries of that lot,
lot 6 and part of lot 8 being the subject of Certificate of Title Volume 1167
Folio 830 and south-westerly along the north-western boundary of that part of
lot 8 to the north-eastern side of Ocean Street; thence north-westerly along
that side and onwards to the north-western side of Rockingham Road aforesaid;
thence south-westerly 1 chain 77 and two tenths links along that side;
thence 270 degrees to the high water mark of the Indian Ocean; thence
generally northerly along that mark to a point situate 270 degrees from
the starting point and thence 90 degrees to that point; being lots 298, 299,
300, 302 to 307 inclusive, 310, 311 and 312 as shown on Land Titles Office
3 plan 3837, lots 4, 5 and part of lot 8 as shown on Land Titles Office
3 diagram 14302 together with part of the right of way shown thereon,
lots 1 and 2 as shown on Land Titles Office 3 diagram 13127, lots 9
to 12 inclusive as shown on Land Titles Office 3 diagram 15404, parts of
lots 294, 295, 296, 313 to 320 inclusive, 332 and 333 together with parts of
Rockingham Road and Beach Street and being the land delineated and coloured
partly in brown and the remainder in hachure on the said Plan marked
“A”.
AS WITNESS the execution of these presents the day
and year first hereinbefore written.
|
SIGNED SEALED AND DELIVERED by THE HONOURABLE DAVID BRAND M.L.A. in the
presence of — |
|
DAVID BRAND. |
C. W. Court.
|
THE COMMON SEAL OF BP REFINERY (KWINANA) PROPRIETARY LIMITED was hereunto
affixed in the presence of — |
|
|
L. R. GASCOINE,
Director.
Wm. G. BEVAN,
Secretary.
|
THE COMMON SEAL OF CSBP & FARMERS LTD was hereunto affixed by authority of
the directors in the presence of — |
|
[C.S.] |
A. McA. BATTY,
Director.
E. THORLEY LOTON,
Director.
K. A. MARTIN,
Secretary or authorised
Signatory.
