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