Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 3]
[Heading amended by No. 19 of 2010
s. 4.]
THIS AGREEMENT is made the 17 day of June 1987 BETWEEN THE
HONOURABLE BRIAN THOMAS BURKE, M.L.A., Premier of the State of Western
Australia, acting for and on behalf of the said State and its
instrumentalities from time to time (hereinafter called “the
State”) of the one part and
SCM CHEMICALS LTD. a company duly incorporated in the State of Western
Australia and having its registered office at Old Coast Road, Australind
(hereinafter called “the Company”) of the other part.
WHEREAS:
(a) the State and the Company are the parties to
the agreement defined in section 3 of the Pigment Factory (Australind)
Agreement Act 1986 (which agreement is hereinafter referred to as the
“Principal Agreement”);
(b) the parties desire to vary the Principal
Agreement as hereinafter provided.
NOW THIS AGREEMENT WITNESSES:
1. Subject to the context, the words and
expressions used in this Agreement have the same meanings respectively as they
have in and for the purpose of the Principal Agreement.
2. The State shall introduce and sponsor a Bill in
the Parliament of Western Australia to ratify this Agreement and endeavour to
secure its passage as an Act prior to 31st July 1987.
3. The provisions of this Agreement other than
this Clause 3 and Clause 2 shall not come into operation until:
(1) the Bill referred
to in Clause 2 has been passed by the Parliament of Western Australia and
comes into operation as an Act;
(2) the Company has
given notice to the State of its acceptance of the conditions and procedures
which may be recommended in the EPA Report as defined in Clause 4(1)(c)
of this Agreement and adopted by the Minister for the time being responsible
for the administration of the Environmental Protection Act 1986 (which
acceptance may only be withheld where the Company considers that compliance
with any individual or combination of conditions or requirements will so
adversely affect the economic viability of the proposed Kemerton factory that
it would be unreasonable for the Company to proceed) provided that if by the
14th day of August 1987 (or such later date as the Minister may reasonably
require) the Company has not given notice of acceptance then by the 31st day
of August 1987 (or such later date as the State and the Company may agree) the
State and the Company will endeavour to mutually agree a satisfactory
arrangement which will permit the Company to give the notice of acceptance;
and
(3) the State and the
Company have executed the agreements for the sale and lease of the works site
as contemplated by Clause 13A of the Principal Agreement as amended by
this Agreement.
4. The Principal Agreement is hereby varied as
follows: —
(1)
Clause 1 —
(a) in
the definition of “changeover date” by deleting “31st day of
December 1989” and substituting the following —
“30th day of June 1990”;
(b) in
the definition of “chloride plant” by deleting “works
site” and substituting the following —
“Kemerton works site”;
(c) by
deleting the definition “EPA Report” and substituting the
following definition —
“ “EPA Report” means the report (Bulletin
275 May 1987) submitted by the EPA to the Minister in respect of the
ERMP to the extent that the same remains relevant and any subsequent report
the EPA may submit to the Minister in respect of the NOI;”;
(d) by
deleting the definition “ERMP” and substituting the following
definition —
“ “ERMP” means the environmental review and management
program (dated November 1986) which was submitted by the Company to the
EPA;”;
(e) by
inserting, in their appropriate alphabetical positions, the following
definitions —
“ “Kemerton factory” means the factory to be erected and
established by the Company pursuant to an approved proposal;
“Kemerton works site” means all that land at Kemerton referred to
in paragraph (1) of Clause 6A;
“Finishing Plant” means the plant at the works site which will be
upgraded to convert the raw titanium dioxide slurry to produce the finished
product;
“NOI” means the notice of intent to be submitted by the Company to
the Minister in respect of the chloride plant and the continuing operations on
the works site or the more detailed requirements of the EPA pursuant to the
Environmental Protection Act 1986 ;”
(2) By inserting after
Clause 6 the following clause —
“6A. (1)
The Company desires as its site for the Kemerton works
site certain land comprising 55 hectares or thereabouts and being that portion
of the land shown hatched subject to survey on the plan marked “X”
and initialled by or on behalf of the parties hereto for the purposes of
identification.
(2)
Subject to Clause 7 the State shall as soon as practicable
after the execution hereof transfer and give vacant possession of the Kemerton
works site free from encumbrances to the Company upon payment by the Company
of one dollar and all costs associated with the survey and transfer of the
land.
(3)
The State shall to the extent reasonably necessary for the
purposes of this Agreement allow the Company to have access to the Kemerton
works site prior to the transfer thereof to the Company for the purpose of
carrying out surveys and preparatory building works necessary to enable it to
finalise the detailed proposals referred to in Clause 7.”.
(3)
Clause 7 —
(a) by
deleting subclause (1) and substituting the following
subclause —
“(1) The Company
shall within sixty (60) days of the Company’s acceptance of (which
acceptance shall not be unreasonably withheld) any condition and procedure
which may be recommended in the EPA Report and adopted by the Minister for the
time being responsible for the administration of the
Environmental Protection Act 1986 (or thereafter within such extended
time as the Minister may allow as hereinafter provided) and subject to the
provisions of this Agreement submit to the Minister to the extent reasonably
practicable its detailed proposals (having due regard where applicable to the
ERMP, NOI, the EPA Report and those conditions and procedures)
for —
(a) the
construction and the establishment on the Kemerton works site of a new plant
designed to produce and capable of producing not less than 70,000 tonnes of
titanium dioxide pigment per annum by use of the chloride process and the
Finishing Plant on the works site, and
(b) the
continuing operations on the works site.
Except for proprietary confidential information
the detailed proposals shall include plans where practicable and
specifications, where reasonably required by the Minister, of the location,
area, lay-out, design, quantities, materials and a time programme for the
commencement and completion of construction plant commissioning and the
provision (as the case may be) of each of the following matters,
namely —
(c) the
chloride plant;
(d) the
production of chlorine at the Kemerton works site;
(e) air
separation plant;
(f) the
continuing operations on the works site;
(g) the
concurrent operation of the sulphate plant and the chloride plant;
(h) the
expected solid and liquid discharges and gaseous emissions and the method and
location of disposal;
(i)
water supply;
(j)
access roads;
(k) use
of local labour professional services manufacturers suppliers contractors and
materials and measures to be taken with respect to the engagement and training
of employees by the Company, its agents and contractors;
(l)
chemicals and other supplies for the ongoing process;
(m) an
environmental management programme as to measures to be taken, in respect of
the Company’s activities under this Agreement, for the protection and
management of the environment; and
(n) the
security of confidential proprietary information provided to or obtained by
the State or any authority of the State to satisfy the provisions of any
written law.”.
(4) Clause 9
subclause (1) —
By inserting after “works site” the
following —
“or Kemerton works site (as the case may be)”.
(5)
Clause 10 —
In paragraphs (b), (c) and (d) by inserting
after “works site” wherever it occurs the
following —
“or Kemerton works site (as the case may be)”.
(6) Clause 12
subclause (2) —
By inserting after
“subclause (1)” wherever it occurs the
following —
“and Clause 12A (as the case may be)”.
(7) By inserting after
Clause 12 the following clause —
“12A. Subject to
subclause (2) of Clause 12 and in consideration of the Company
agreeing to relocate the chloride plant from the works site to the Kemerton
works site the State agrees to pay to the Company (or a related company which
is acceptable to the State) the sum of SIX MILLION THREE HUNDRED AND FIFTY
THOUSAND DOLLARS ($6,350,000.00) upon and subject to the terms and conditions
of this Agreement and such other terms and conditions as the parties may
mutually agree and the Minister considers may be beneficial to the State. The
payment will be made progressively as follows —
(a) as
to ONE MILLION FIVE HUNDRED AND EIGHTY SEVEN THOUSAND FIVE HUNDRED DOLLARS
($1,587,500.00) on 31st July 1988;
(b) as
to ONE MILLION FIVE HUNDRED AND EIGHTY SEVEN THOUSAND FIVE HUNDRED DOLLARS
($1,587,500.00) on 31st October 1988;
(c) as
to ONE MILLION FIVE HUNDRED AND EIGHTY SEVEN THOUSAND FIVE HUNDRED DOLLARS
($1,587,500.00) on 31st January 1989; and
(d) as
to ONE MILLION FIVE HUNDRED AND EIGHTY SEVEN THOUSAND FIVE HUNDRED DOLLARS
($1,587,500.00) on 31st July 1990.
(8)
Clause 13 —
(a) by
deleting the heading “Disposal of Works Site” and substituting the
following heading —
“Disposal of Kemerton Works Site”;
(b) by
deleting “works site” and substituting the
following —
“Kemerton works site”.
(9) By inserting after
Clause 13 the following clause —
“13A. The
Company agrees to sell to the State the works site at an agreed price and on
condition that upon completion of such sale the State will lease to the
Company the portion of the works site as the Company may require and otherwise
the sale and lease shall be on such terms and conditions as the parties may
mutually agree.”.
(10) Clause 14
subclause (1) —
by inserting after
“works site” the following —
“or Kemerton works site (as the case may be)”.
(11)
Clause 15 —
(a) by
deleting the heading “Electricity” appearing immediately above
Clause 15 and substituting the following heading —
“Energy”;
(b) in
subclauses (1) and (2) by deleting “power” wherever it occurs
and substituting in each place the following —
“energy”;
(c) by
inserting after “works site” wherever it occurs the
following —
“or Kemerton works site (as the case may be)”.
(12)
Clause 17 —
(a)
in paragraphs (a) and (b) of
subclause (1) by inserting after “factory” wherever it occurs
the following —
“or the Kemerton factory (as the case may be)”;
(b)
in paragraph (a) of subclause (2) by
inserting after “works site” the following —
“or Kemerton works site (as the case may be)”.
(13)
Clause 18 —
(a) by
inserting after “works site” wherever it occurs the
following —
“or the Kemerton works site (as the case may be)”;
(b) by
deleting paragraph (b) and substituting the following
paragraph —
“(b) the area of
land within a radius of two kilometres of the chloride plant”;
(c) by
adding after “operations of the Company hereunder” the
following —
“including (without limitation) the erection and use of the Kemerton
factory in accordance with approved proposals”;
(d) by
deleting “zoning” in the last line and substituting the
following —
“town planning scheme”.
(14) By inserting
after Clause 18 the following clause —
“18A. (1)
Subject to subclause (2) the design, construction,
commissioning and operation of the Kemerton factory shall comply with the
lawful requirements of and all regulations and bylaws of all relevant local
and other authorities of the State and the Commonwealth and all Acts of the
State and Commonwealth applicable thereto.
(2)
Notwithstanding the provisions of any Act, regulation, bylaw,
interim development order or town planning scheme the Company shall not be
required to obtain any approval or consent required by or under a law of the
State to the development of the Kemerton works site or the construction of the
Kemerton factory in accordance with the provisions of this Agreement.”.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
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SIGNED by the said THE HONOURABLE BRIAN THOMAS BURKE M.L.A. in the presence
of: |
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BRIAN BURKE |
D. PARKER
MINISTER FOR MINERALS AND ENERGY
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THE COMMON SEAL of SCM CHEMICALS LTD. was hereunto affixed by authority of the
Board of directors in the presence of: Director: J. LEACH Secretary: H. MACIEJEWSKI |
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[C.S.] |
