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Editors --- "The Broome Tropical Aquaculture Park Management Agreement - Digest" [1996] AUIndigLawRpr 61; (1996) 1(3) Australian Indigenous Law Reporter 450

The Broome Tropical Aquaculture Park Management Agreement

The area of land covered by the Agreement was, at the time a native title claim was lodged, a Reserve for Ports and Harbours vested in the Minister for Transport. A lease over the area has subsequently been granted to the Minister for Fisheries. That lease provides that the grant of the lease shall not be taken into account in any future determination of the Native Title Claim.

The Aquaculture Park consists of a service area and nine sub-lease areas which will be let to parties wishing to engage in aquaculture ventures. There is also a 'buffer zone' area, to protect a coastal zone, within which, because of the mode of decision-making of the Management Advisory Committee, there can be no development without the consent of Rubibi.

The Management Agreement provides Rubibi with a 49 percent interest in the profits made from the rent of the sub-leases - expressed as a management fee for the participation of Rubibi on the Management Advisory Committee. The decisions of the Management Advisory Committee are to be made by way of consensus (thus ensuring Rubibi's interests are protected) and are binding on the Department of Fisheries, unless contravened by the Minister.

The Agreement provides Rubibi with an option to take up a sub-lease within the Park, at peppercorn rent, and a first option to purchase the Minister's interest.

Finally, the Agreement protects the native title rights and interests of the Claimants by providing that the establishment and operation of the park and the participation of Rubibi in its management shall not be taken into account in the determination of the Native Title Claim.

MANAGEMENT AGREEMENT made on the 2nd day of February 1996

BETWEEN: MINISTER FOR FISHERIES in the capacity as a body corporate constituted under the provisions of the Fish Resources Management Act 1994 care of 3rd floor, SGIO Atrium, 168-170 St George's Terrace, Perth, Western Australia ('Minister')

AND: THE RUBIBI ABORIGINAL LAND, HERITAGE AND DEVELOPMENT COMPANY PTY LTD ACN 071 882 990 of care of Lot 102 Broome Road, Broome, Western Australia in its capacity as trustee for The Rubibi Aboriginal Charitable Trust ('Rubibi')

RECITALS:

A. The Minister is in the course of securing tenure to the Land and developing the Land for the purposes of an aquaculture park to be known as 'Tropical Aquaculture Park' wherein parties can sub-lease areas within the Park for the purposes of conducting businesses and operations in aquaculture.

B. Rubibi has lodged a native title claim against the Land which the State opposes on the grounds that there has been an extinguishment of native title rights by reason of the tenure that has previous [sic] been granted in respect of the Land.

C. The Minister being concerned that Rubibi's native title claim could impede the establishment of the Park and adversely effect its commercial prospects and wishing the Rubibi to contribute to the management of the Park has invited Rubibi to participate in the management of the Park and to cooperate in its establishment.

D. The parties now wish to record their agreement on the terms of Rubibi's contribution to the management of the Park and the terms of its cooperation in its establishment.

AGREEMENT as follows:

1. DEFINITIONS AND INTERPRETATIONS

1.1 Definitions

In this Agreement, unless the context otherwise requires:

'Agreement' means this agreement;

'Capital Expenditure' means any expenditure on structural modifications, alterations, changes or additions on or in relation to the Park or replacement of any major items of the Park Equipment or services within the Park but excluding any Project Costs;

'Capital Reserve Account' shall have the meaning set out in cl 6;

'Central Services Area' means the area established within the Park by the Department to house part of the Park Equipment and other common Park facilities;

'Commencement Date' means the date of commencement of the term of the first Sub-lease;

'Confidential Information' means all trade and business secrets and other confidential information and Documents relating to the affairs or business of the Project or the Park or any person with whom Rubibi or any of its representatives on the Management Advisory Council comes into contract as a result of this Agreement;

'Department' means the Fisheries Department of Western Australia;

'Department Research Facility' means the research and development facility intended to be established by the Department within the Park;

'Documents' includes software manuals, diagrams, graphs, charts, projections, specifications, estimates, records, concepts, documents, accounts, plans, formulae, designs, methods, techniques, processes, supplier lists, price lists, customer lists, market research information, correspondence, letters and papers of every description including all copies of an extracts from the same;

'Financial Year' shall mean the period commencing 1 July and ending 30 June in the next following year save for the first Financial Year which shall commence on the Commencement Date and expire on 30 June 1997 and the last Financial Year which shall commence on 1 July in the last year of the Term and expire on the date of termination or expiration of the Term;

'Gross Operating Profit' means Total Revenue less Operating Costs. In determining Gross Operating Profit for any Financial Year adjustment shall be made for or on account of any deficiency in the Gross Operating Profit of any prior Financial Year;

'Head Lease' means the lease of the Land to be entered into between the Director General of Transport of the State of Western Australia as head lessor and the Minister as head lessee the terms of which are currently being negotiated;

'Land' shall have the same meaning as ascribed to that term in the Head Lease;

'Management Advisory Committee' means the committee established by the Minister to assist the Department in the operation and management of the Park;

'Management Fee' means the fee detailed in cl 5;

'Native Title Claim' means the claim Registration Number C00068 lodged with the National Native Title Tribunal on 31 October 1994 by Matthew Gilbert, Francis Djaigween, Cecilia Djaigween, Felix Edgar, Elsie Edgar, Daniel Ozois, Rosly Shadforth, Georgie Kaissis, Paddy Roe, Richard Hunter, Frank Sebastian, Joseph Roe and Ron Carter as the registered native title claimants and relating to the area of land known as the 'Rubibi Claim Area';

'Net Sale Proceeds' means the gross proceeds of sale of the Minister's interest in the Project less;

(a) sales commission and other usual selling expenses;

(b) recovery of any amounts (together with interest calculated at the Rate) contributed by the Department to meet any shortfall in Operating Costs during the Term;

(c) recovery of any amounts (together with interest calculated at the Rate) contributed by the Department to meet any shortfall in the funding of Capital Expenditure after application of any amount in the Capital Reserve Account.

'Nominated Site' means a Site agreed upon between the parties for the purposes of cl 5.2;

'Operating Costs' shall mean and include the entire costs and expense of maintaining, operating and supervising the operation of the Park, calculated in accordance with generally accepted accounting practices and without in any way limiting the generality of the foregoing shall include:

(a) costs of salaries, wages, payroll tax and employee benefits for personnel employed in the operation of the Park and general expenses and charges for water, light and power.

(b) insurance premiums for all insurance policies taken out by the Department in respect to the Park:

(c) real property taxes, shire rates, water charges and sewer, rents and other taxes assessments and charges relating to the operation of the Park levied, charged or assessed in respect thereof by any competent authority in the Commonwealth of Australia and payable by the Minister;

(d) legal, accounting and audit fees for services relating to the operation of the Park;

(e) expenditure paid or incurred for promotion and public relation of the Park;

(f) all out of pocket disbursements and expenses other than those specifically referred to above reasonably, properly and specifically incurred by the Department pursuant to and in the course of and directly related to the general management and operation of the Park. Without limiting the generality of the foregoing, such charges may include all reasonable travelling, telephone, courier fees, facsimile, air express charges and other incidental expenses;

(g) all fees and expenses paid to representatives on the Management Advisory Committee;

(h) a provision for doubtful debts calculated in accordance with generally accepted accounting practices;

(i) rentals and hiring charges and other charges paid by the Department on any rental of plant and equipment used in the operation of the Park:

(j) all other reasonable and necessary expenses incurred by the Department in the operation of the Park;

(k) the write-off uncollectable debts due under the provisions of any Sub-lease to the extent that the same are written off by the Department PROVIDED THAT if any such accounts are subsequently recovered then the amount thereof shall be included within the Gross Operating Profit for the year in which they were recovered;

(l) commission paid in respect of the sub-leasing of any Site;

(m) amounts paid or payable to the Capital Reserve Account;

(n) interest paid or accrued on monies borrowed to fund Capital Expenditure or the payment of Operating Costs and bank transaction charges;

(o) Capital Expenditure; and

(p) the costs and expenses defined as 'Variable Operating Costs' in the Sub-lease;

IT HOWEVER being expressly agreed that the following expenses shall not fall within the definition of Operating Costs:

(a) depreciation charges to the extent they are already accounted for within the contributions to the Capital Reserve Account;

(b) costs associated with the maintenance, repair and running of the Department Research Facility; and

(c) rent and outgoings payable by the Minister under the terms of the Head Lease;

'Park' means the Land and aquaculture complex known as 'Tropical Aquaculture Park' comprised by and including all structures, buildings and other improvements now or at any time erected on the Land, the Park Equipment and all plant and machinery, fittings and equipment there in or thereon or used in relation thereto (whether within the boundaries of the Land or otherwise) under the ownership or control of the Minister;

'Park Equipment' shall extend to and include all plant and machinery, fittings and equipment in or about the Park not being plant and equipment owned by a Tenant;

'Project' means the project constituted by the development of the Park, the sub-leasing of the Sites and the ongoing management and operation of the Park;

'Project Costs' means all expenditure paid or payable by the Minister for the establishment of the Park;

'Rate' means the rate charged from time to time by the Reserve Bank of Australia on overdraft accounts;

'Restricted Dune Area' means the area delineated as such on the Site Plan;

'Site' means an area within the Park designated for sub-leasing to a party for the purposes of conducting aquaculture operations;

'State' means the State of Western Australia;

'Sub-lease' means a sub-lease entered into between the Minister and a Tenant in relation to the sub-leasing of a Site;

'Tenants' means a sub-lessee named in a Sub-lease;

'Term' means the term of this Agreement.

'Total Revenue' means all rent, contributions to Operating Costs and Saline Water charges (as that term is defined in the Sub-lease) received from Tenants;

'Trust' means the trust known a the Rubibi Aboriginal Charitable Trust evidenced by deed dated 17 January 1996 between George Irving as settler and Rubibi as trustee;

'Valuer' means a natural person who:

(a) is licensed under the Land Valuers Licensing Act 1978; and

(b) has not less than 5 years experience (including not less than two years experience in Western Australia.)

1.2 Other References

In this Agreement unless the context otherwise requires:

(a) references to statutes, regulations, ordinances or by-laws shall be deemed to extend to all statutes, regulations, ordinances or by-laws amending, consolidating or replacing the same;

(b) words importing the singular number shall include the plural and vice versa, and words importing the masculine shall include the feminine and neuter genders and vice versa;

(c) reference to a person includes a corporation and vice versa;

(d) reference to any authority, association or body whether statutory or otherwise, in the event of any such authority, association or body ceasing to exist or being reconstituted or renamed or replaced or the powers of functions thereof being transferred to any other authority, association or body shall be deemed to refer respectively to the authority, association or body established or constituted in lieu thereof or as nearly as may be succeeding to the powers or functions thereof.

1.3 Headings

Heading and sub-headings have been included for ease of reference and none of the terms, covenants, conditions or restrictions within those headings or sub-headings appearing are to be construed or interpreted by reference to such headings or sub-headings.

2. TERM

The Term shall commence on the Commencement Date and terminate on the earliest of the following dates:

(a) the date of termination under the provisions of cl 9;

(b) the date that the Minister ceases to hold any interest in the Project; or

(c) the date of expiration or sooner determination of the Head Lease.

3. MANAGEMENT OF PARK

3.1 Responsibilities of the Department

The Department will, subject to the direction of the Minister and the recommendations of the Management Advisory Committee be responsible for all aspects of the management and control of the Project and the Park.

3.2 Establishment of Management Advisory Committee

The Minister undertakes to establish a Management Advisory Committee for the determination of matters relating to the management and control of the Park consisting of 6 representatives appointed as follows:

(a) the Department - one representative

(b) Tenants - two representatives

(c) Rubibi - two representatives

(d) Minister - one representative

3.3 Management Advisory Committee Decisions

In the management and control of the Park, the Department will comply with the recommendations of the Management Advisory Committee unless otherwise directed by the Minister.

3.4 Appointment, Removal and Replacement of Representatives

Each of the parties referred to in cl 3.2 may from time to time in the same manner appoint, remove or replace an alternate representative to act in the place of any representative appointed by that party. An alternate representative so appointed will upon appointment be subject in all respects to the terms and conditions existing with reference to the other representatives and each alternate representative whilst acting in the place of the representative whom he represents shall observe and discharge all duties of that representative. All representatives appointed in accordance with this clause will be entitled to attend all meetings of the Management Advisory Committee.

3.5 Voting Rights

Each representative will be entitled to one vote provided that where a party has nominated two representatives and only one is present at a meeting of the Management of Advisory Committee the representative present shall be entitled to exercise two votes.

3.6 Passing of Resolutions

Proposals to be decided upon by the Management Advisory Committee will not be carried nor be binding on the Department unless affirmed by all of the representatives attending the meeting.

3.7 Quorum

The Quorum necessary for the transaction of business of the Management Advisory Committee will be the representative of the Department, the representative of the Minister, one representative of the Tenants and one representative of Rubibi.

3.8 Chairman

The representative appointed by the Minister shall act as chairman. The chairman will not have a casting vote in the event of an equality of votes.

3.9 Calling of Meetings

The Department or such other person as the Department nominates ('Authorised Convenor') will be responsible for arranging the meetings of the Management Advisory Committee and shall give each representative of the Management Advisory Committee notice of the date, time and place of each meeting at least 7 days in advance of the date of the meeting and shall prepare and furnish to each representative, together with the notice, an agenda and all appropriate supplementary information for the meeting PROVIDED THAT in the case of an emergency the Authorised Convenor may, notwithstanding the foregoing provisions of this clause, convene a meeting on not less that 72 hours notice of the time, place and purpose thereof to each representative. At all meetings of the Management Advisory Committee only those matters on the agenda may be considered, but at any meeting, the agenda may be amended to include additional matters by unanimous vote of the representatives attending the meeting. Each agenda shall contain an item dealing with business for the following meeting under which any representative can nominate items for discussion at the next meeting and items so nominated shall form part of the agenda for the next meeting. The Authorised Convenor may call a meeting at any time it deems appropriate and shall do so, upon the request of any representative, by giving each representative notice thereof as set forth above. Minutes of each meeting shall be prepared by the Authorised Convenor convening the meeting and shall promptly thereafter be distributed to all representatives. Rubibi HEREBY CONVENANTS to ensure that at least one duly appointed representative is present at every meeting of the Management Advisory Committee. All meetings of the Management Advisory Committee will be held in Broome or at such other place as the representatives from time to time unanimously agree.

3.10 Certain Decisions to be Binding Without a Meeting

A decision on any matter falling within the authority of the Management Advisory Committee may without a meeting and evidenced by writing signed in one or more counterparts by all of the representatives entitled to vote will be as binding and effectual as if decided at a meeting of the Management Advisory Committee.

4. RUBIBI CONTRIBUTION TO MANAGEMENT

4.1 Management Obligations

Rubibi agrees that during the Term Rubibi shall have the following duties and obligations in relation to its contribution to management and control of the Park:

(a) to nominate two representatives to the Management Advisory Committee and ensure that they discharge their obligations as members of that committee in good faith and at all times exercise a reasonable degree of care and diligence;

(b) generally promote the Park in order to encourage occupancy of the Sites and to use all reasonable efforts to maximise the patronage of the Park's facilities;

(c) comply with all policies, directions and resolutions of the Management Advisory Committee;

(d) immediately inform the Department on any matter which may come to its notice or to the notice of any of its officers which may be of any substantial importance or use to the Department in the promotion and management of the Park; and

(e) immediately communicate to the Department any proposals or suggestions occurring to it or any of its officers which may be of service for the furtherance of the objectives of the Park.

5. MANAGEMENT SERVICES - PAYMENT

5.1 Management Fee

In consideration for the performance by Rubibi of its obligations under this Agreement, the Minister shall during the Term pay to Rubibi a Management Fee equal to 49% of the Gross Operating Profit payable in respect of each Financial Year within 28 days of the date of completion of the annual accounts of the Park.

5.2 Option to Sub-lease Nominated Site

The Minister hereby grants to Rubibi an option to sub-lease the Nominated Site such option to be exercised within
3 years of the Date of Commencement. The terms of the Sub-lease shall be as follows:

(a) Term:

Any term nominated by Rubibi but not exceeding the maximum term being offered to other Tenants.

(b) Date of Commencement:

Date of exercise of this option to sub-lease.

(c) Rent:

Peppercorn whilst Rubibi remains as sub-lessee. Commercial rent to be paid in event of assignment or subletting.

(d) Proportion of Variable Operating Costs:

Standard proportion that applies to sites within Park of same proportions as Nominated Site.

(e) Rates for Saline Water and Water Treatment Plant:

Standard rates.

(f) Guarantors:

No guarantors required.

(g) Balance of Terms:

Same as Sub-lease

6. CAPITAL RESERVE ACCOUNT

6.1 Deduction of Instalments

During the Term the Department shall deduct instalments either annually or such other period nominated by the Department from the Total Revenue derived in the immediately preceding period. Such instalments shall be
such percentage of the Total Revenue or such fixed amounts as the Department (following consultation with
the Management Advisory Committee) shall reasonably nominate from time to time for the purposes specified in cl 6.2.

6.2 Use of Capital Reserve Account

Except as otherwise specified in this Agreement, the Capital Reserve Account shall be used solely for the purpose of satisfying items of Capital Expenditure during each Financial Year. Any such expenditure shall be paid from the Capital Reserve Account. All interest earned on the Capital Reserve Account and proceeds from the sale of plant and equipment no longer needed for the operation of the Park shall be credited to the Capital Reserve Account. All amounts remaining in the Capital Reserve Account at the close of each Financial Year shall be carried forward and retained until fully used as herein provided.

6.3 Shortfall in Contributions

In the event that in any Financial Year the Gross Operating Profit is insufficient to meet the instalments required for the contribution to the Capital Reserve Account, contributions from subsequent years shall be increased to make up any deficiency.

6.4 Treatment on Expiration of Term

On the expiration of the Term, the credit balance, if any, remaining in the Capital Reserve Account will be treated as a reduction of Operating Costs in the last Financial Year of the Term. This provision shall not apply where the Agreement is terminated under the provisions of cll 9 or 10.2.

7. DUNE PROTECTION ZONE

The Minister will not permit any development to take place within the Dune Protection Zone without the prior approval of the Management Advisory Committee.

8. RECORDS

8.1 Books and Records

The Department shall keep full and adequate records reflecting the results of the operation of the Park and shall record all other information relevant or necessary for the purpose of this Agreement.

8.2 Right to Inspect

Rubibi or such persons authorised by Rubibi may at its expense (and not as an Operating Cost) be entitled at any time (but no more frequently than three times in each Financial Year) by not less than 7 days prior to notice to the Department either inspect the financial records and books of account of the Department insofar as they relate to the Park and its operations or carry out such management report on the operation of the Park as Rubibi may determine. The Department will permit such books of account, record and other financial statements to be made available for inspection by Rubibi or by any person authorised by Rubibi and shall allow Rubibi or such persons to take any copies and extracts therefrom at Rubibi's expense as Rubibi or its authorised person or persons may require.

8.3 Reports

(a) The Department shall deliver to Rubibi not later than 21 days after the end of each quarterly accounting period a profit and loss statement showing the results of the operation of the Park for the said period and the year to date, and containing a computation of the Gross Operating Profit and such other information as may be reasonably required by Rubibi. These figures contained in such statement shall be taken from the books of account maintained by the Department.

(b) The Department shall use its best reasonable endeavours to have the accounts for each Financial Year completed within 60 days of the end of the preceding Financial Year and shall deliver a copy to Rubibi within 16 days after the accounts are available showing a computation of the Gross Operating Profit, the Management Fee payable to Rubibi and such other information as Rubibi shall consider reasonable or necessary.

9. TERMINATION

9.1 Termination Following Default

The following events shall constitute defaults under this Agreement:

(a) the failure by the Minister to make payments properly due to Rubibi for a period of 30 days after such payment is payable;

(b) the failure of either party (after reasonable notice has been given by the other party) to perform or observe any of the agreements or obligations contained or implied in this Agreement which on the part of the relevant party are or ought to be performed or observed.

9.2 Termination and Due Notice

If any party shall be in default and the non-defaulting party desires to terminate this Agreement while such default exists, the non-defaulting party may give to the defaulting party Due Notice of intention to terminate the Term. 'Due Notice' shall mean that upon the expiration of 30 days from service of any notice the Term shall expire PROVIDED HOWEVER that upon receipt of such Due Notice the defaulting party shall promptly and with all due diligence cure the default or take reasonable action to cure such default (if such default is capable of being cured within the said 30 day period) and if so cured or all reasonable action is taken to cure it, then such notice shall be of no force and effect. The rights granted hereunder shall not be in substitution for but shall be in addition to any and all rights and remedies for a breach of contract granted or allowable by law.

10. SALE OF PROJECT

10.1 Right of First Refusal

In the event that during the Term the Minister is desirous of selling the whole or part of its interest in the Project ('Interest') Rubibi shall have the right to purchase the Interest on the following conditions:

(a) The Minister shall first give notice to Rubibi in writing ('Sale Notice') notifying Rubibi that the Minister is desirous of selling the Interest and with the Sale Notice there shall be delivered to Rubibi the form of contract of sale ('Contract of Sale') containing the terms and conditions upon which the Interest is offered for sale to Rubibi;

(b) Rubibi, if Rubibi desires to purchase the Interest upon the terms and conditions set out the Contract of Sale, shall within 28 days after receipt of the Sale Notice cause to be delivered to the Minister the Contract of Sale duly executed by Rubibi, together with a deposit or other monies required by the terms of the Contract of Sale to be paid upon execution thereof and thereupon the Contract of Sale shall be deemed to have been entered into between the parties;

(c) If Rubibi shall not within the said period of 28 days accept in the manner set out above the Minister's offer of sale of the Interest (as to which time shall be of the essence) or if Rubibi shall at any time within the said period of 28 days signify Rubibi's irrevocable intention not to accept such offer then the Minister shall be at liberty to sell the Interest to any other person upon terms and conditions not more favourable to the proposed purchaser that those upon which the same were previously offered to Rubibi.

10.2 Failure to Exercise Right of First Refusal - Whole of Interest

In the event that Rubibi does not exercise the right of first refusal in relation to a Sale Notice containing the whole of the Minister's interest in the Project and a sale of that interest is effected to a third party then this Agreement shall terminate of the day the contract with the third party is executed.

10.3 Failure to Exercise Right of First Refusal - Part Interest

In the event that Rubibi does not exercise the right of first refusal in relation to a Sale Notice containing part of the Minister's interest in the Project and a sale of the interest is effected to a third party then the Management Fee payable shall be adjusted to 49% of Rubibi's and the Minister's remaining share of the Gross Operating Profit following the sale.

10.4 Entitlement to Net Sale Proceeds

In the event of any sale of the whole or part of the Minister's interest in the Project to a third party following Rubibi's failure to exercise its rights of first refusal as set out above, the Minister will pay to Rubibi 49% of the Net Sale Proceeds.

10.5 Review of Ownership Position

The Minister undertakes to review in good faith at the expiration of 6 years after the Commencement Date following the first Sub-lease market rent revue and thereafter intervals agreed between the parties the need for it to retain its interest in the Project and subject to it being satisfied that a sale to Rubibi would not be contrary to the best interests of the State, the aquaculture industry or the Tenants it will offer for sale its interest in the Project to Rubibi at a price negotiated between the parties and failing agreement as determined by a Valuer acting as an expert and not as an arbitrator, and by whose decision each of the parties agree to be bound. If the parties do not agree upon the person to act as such Valuer within a period of 14 days commencing upon the date that notice is given by the Minister to Rubibi, the Minister shall appoint a panel of three Valuers and Rubibi shall nominate one of those Valuers to determine the fair value in accordance with this clause. The costs of determining the purchase price shall be born equally by the parties.

11. ASSIGNMENT

The parties acknowledge that the rights and entitlements granted to Rubibi under the terms of this Agreement are personal to Rubibi and Rubibi agrees not to assign this Agreement without the Minister's prior written consent (which consent may be arbitrarily withheld).

12. ARBITRATION

In the event of any dispute relating to the determination of Project Costs, Total Revenue, Operating Costs, Gross Operating Profit or Management Fee or in relation to any financial information prepared by the Department then the same shall be referred to the President for the time being of the Western Australian Division of the Institute of Chartered Accountants who will appoint a firm of chartered accountants to determine such dispute and such accountants shall be acting as experts and not as arbitrators, however those accountant may call in expert advice as they consider appropriate. Such determination shall be binding upon the parties and the cost of such determination shall be born equally between the parties but each party shall bear their own legal costs.

13. NATIVE TITLE CLAIM

13.1 Acknowledgment

The Minister acknowledges and agrees that the establishment and operation of the Park and the participation of Rubibi in its management under the provisions of this Agreement shall not be taken into account in the determination of the Native Title Claim.

13.2 Rubibi Undertaking

In the event that as a consequence of the Native Title Claim, native title rights over the Land are granted, Rubibi shall use its best reasonable endeavours to ensure that persons entitled to those rights exercise them in a manner which does not substantially interfere with the rights of the Minister under the Head Lease or the rights of any of the Tenants.

14. MISCELLANEOUS

14.1 Costs and Expenses

The Minister shall pay Rubibi's reasonable costs of and incidental to the instructions for and preparation and execution of this Agreement and the earlier heads of agreement (such costs not to exceed $8,000). Any stamp duty payable on this Agreement shall be borne by the Minister.

14.2 Notices

(a) Service of Notice:

Any notice, approval, consent or other communication under this Agreement will be in writing, and delivered personally or given by pre-paid registered post, facsimile, telex, telegram or cable to a party at the address of that party indicated in this Agreement, or to another address as that party may time to time notify to the other for the purposes of this clause.

(b) Proof of Service:

Proof of posting by pre-paid registered post or of despatch of facsimile, telex, telegram or cable will be proof of receipt, in the case of a letter, on the third day after posting; in the case of facsimile, on the day immediately following dispatch, provided that the sender's facsimile machine produced a simultaneous satisfactory transmission report; in the case of a telex, on the day immediately following receipt by the sender of the answerback of the address; and in the case of a telegram or cable, on the day immediately following the date of despatch.

14.3 Variation

This Agreement may not be changed or modified in any way after it has been signed except in writing signed by or on behalf of the parties.

14.4 Governing Law

This Agreement is governed by, takes effect and will construed in accordance with the laws of Western Australia, and the parties irrevocable and unconditionally submit to the exclusive jurisdiction of the courts of Western Australia and courts entitled to hear appeals therefrom.

14.5 Further Acts

Each party will promptly do and perform all further acts, and execute and deliver all further instruments required by law or reasonably requested by any other party to establish, maintain and protect the respective rights and remedies of the parties and to carry out and effect the intent and purpose of this Agreement.

14.6 Confidentiality

Rubibi represents and warrants that it will not, and will procure that its representatives on the Management Advisory Committee will not, either during the Term or at any time thereafter except as required by law or by the Management Advisory Committee, use or disclose to any person any Confidential Information and Rubibi will use its best endeavours to prevent the unauthorised use or disclosure of that information by third parties.

14.7 Trust Warranties

Rubibi covenants that:

(a) it has full powers pursuant to its memorandum and articles and pursuant to the deed establishing the Trust to enter into this Agreement.

(b) the Trust is lawfully and validly constituted and the deeds and other instruments in respect thereof have been properly executed;

(c) the Trust is and throughout this Agreement will remain unrevoked and not varied.

14.8 Central Services Area

The parties acknowledge that the Department will not be required to pay rent or make any contribution to Operating Costs in relation to its possession and operation of the Central Services Area.

14.9 Department Research Facility

The parties acknowledge that the Department will not be required to pay rent in relation to its possession and operation of the Department Research Facility but will be required to make a contribution to Operating Costs and saline water charges on the same basis as other Tenants.

14.10 Sub-lease Terms

The Minister, following consultation with Rubibi, will determine the terms of the Sub-lease and in so doing will use its best reasonable endeavours to achieve a balance between the interests of both parties including the Minister's objective in attracting sufficient investment from participants in the Project to assure its ongoing commercial viability and the Minister's industry development objectives and the Rubibi's objective of securing a reasonable income stream from the performance of its management role. Rubibi acknowledge that the terms of the Sub-lease may provide for rent fee and outgoings free periods to attract sufficient investment to the Project.

14.11 Conditions Precedent

(a) This Agreement is conditional upon:

(i) on or before 29 February 1996 (or such later date not exceeding 28 days as the Minister shall nominate) the Minister concludes negotiations on the provisions of the Head Lease on terms acceptable to the Minister; and

(ii) the Minister for Transport agreeing to include in the Head Lease a provision to the effect that the granting of the Head Lease shall not be taken into account in the determination of the Native Title Claim.

(b) The condition contained in cl 14.11(a)(i) has been inserted for the sole benefit of the Minister and the condition contained in cl 14.11(a)(ii) has been inserted for the sole benefit of Rubibi.

(c) If either of the conditions contained in cl 14.11(a) are not satisfied, unless previously waived by the relevant party, the Agreement will terminate automatically without notice and neither party will have any claim against the other. l