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DATED: [INSERT DATE AFTER EXECUTION], 2018
PORTSMOUTH WATER LIMITED
and
SOUTHERN WATER SERVICES LIMITED
______
AGREEMENT
relating to the Bulk Supply of Water to Southern Water Services Limited's South Hampshire Network
from Portsmouth Water Limited's Gaters Mill Works
______
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS 1
2. SUPPLY 4
3. POINT OF SUPPLY AND SUPPLY INFRASTRUCTURE 5
4. MEASURE AND RATE OF FLOW 5
5. CALCULATION AND PAYMENT OF CHARGES 6
6. WATER QUALITY 8
7. RESTRICTION, INTERRUPTION AND SUSPENSION OF SUPPLY 9
8. SUBSEQUENT PERIODS 10
9. TERMINATION 11
10. REVIEW 12
11. STATUTORY AND OTHER RIGHTS 12
12. NOTICES 12
13. VALUE ADDED TAX 13
14. ASSIGNMENT 13
15. ENTIRE AGREEMENT 14
16. DISPUTES 14
SCHEDULE 1 - CALCULATION AND PAYMENT OF CHARGES
SCHEDULE 2 – PROVISION, OWNERSHIP, OPERATION AND MAINTENANCE OF SUPPLY INFRASTRUCTURE
SCHEDULE 3 WATER QUALITY
SCHEDULE 4 NOTIFICATION EXPECTATIONS
SCHEDLUE 5 LIAISON AND POINTS OF CONTACT
SIGNATURE PAGE
Table of Contents
THIS AGREEMENT is made the [INSERT DATE AFTER EXECUTION], 2018
BETWEEN:
1 PORTSMOUTH WATER LIMITED (“Portsmouth Water”) whose registered office is situate at PO Box 8, West Street, Havant, Hampshire PO9 1LG; and
2 SOUTHERN WATER SERVICES LIMITED (“Southern Water”) whose registered office is situate at Southern Water House, Yeoman Road, Worthing BN13 3NX
Each a "Party" and together the "Parties".
WHEREAS:
A Portsmouth Water and Southern Water are appointed water undertakers under the Water Industry Act 1991.
B Southern Water has requested a bulk supply of water from Portsmouth Water to Southern Water's South Hampshire network from Portsmouth Water's Gaters Mill Works and Portsmouth Water has agreed to provide the bulk supply of water on the terms and conditions hereinafter appearing.
C. The Parties have also agreed separately, based on the principles set out in this Agreement, the design, construction, installation, maintenance and ownership of certain equipment, pipelines and works necessary to facilitate the bulk supply of water (the "Supply Infrastructure") agreed by this Agreement.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the following words shall have the following meanings assigned to them:
“Acceptance means a Notice served by Southern Water pursuant to Notice” Clause 8.3 indicating its acceptance of the terms of the Counter Notice
“the Act” means the Water Industry Act 1991
“the Authority” means the Water Services Regulation Authority appointed under the Act
“Commencement means the 1st day of April 2018 Date”
“Contract Rate” means 2% above the base lending rate of Lloyds Bank PLC from time to time
“Counter Notice” means a Notice served by Portsmouth Water pursuant to Clause 8.2
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“Emergency” means a Force Majeure event or extreme weather condition or other extreme occurrence, including severe drought conditions as confirmed by a Drought Order issued pursuant to the Water Resources Act 1991 imposing restrictions on the sources supporting the Supply; accident or incident causing the source or Supply infrastructure to be unavailable or unsafe; any legal or regulatory constraint urgently imposed upon the otherwise expected available output of Portsmouth Water’s sources.
“Existing Non- means a customer included in Southern Water’s forecast Household non-household demand for South Hampshire water Customer” resources planning zone (Sth Hnts SE WRPZ) in Southern Water’s current Water Resources Management Plan (WRMP).
“Extension means a Notice served by Southern Water pursuant to Notice” Clause 8.1 requesting the Supply to continue for any Subsequent Period.
“Force Majeure” means events, circumstances or causes beyond the reasonable control of a Party, including but not limited to acts of God, acts or regulations of any governmental or supra-national authority, war or national emergency, accident, fire, riot, flood, snow, ice, or epidemics which affects either Party’s ability to carry out its obligations under this Agreement.
"Guaranteed means the volumes of bulk water supply for the period Supply" and at the timing of the supply as set out in this Agreement that Portsmouth Water guarantees to make available to Southern Water upon request by Operational Notice and in respect of which Liquidated Damages may be payable if Portsmouth Water delays or fails to supply the requested volumes or agreed timings.
“Initial Period” means a period of ten years from and including the Commencement Date and expiring on the 31st day of July 2027.
"Liquidated means the amount or amounts payable by Portsmouth Damages" Water to Southern Water in respect of a delay or failure to meet the requested volumes or agreed timings for a Guaranteed Supply computed and calculated in accordance with the provisions of Part 6 (Liquidated Damages) of Schedule 1, which the Parties have mutually accepted to be fair, reasonable and equitable liquidated and ascertained damages, representing a genuine pre-estimate of the loss that would be suffered by Southern Water in the event of such delay or failure by Portsmouth Water.
“Maximum means the amount of water supplied by Portsmouth Chargeable Daily Water to Southern Water hereunder in each month (if
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Supply” any) in excess of one–half (0.5) megalitre per day.
“Maximum Daily means a maximum of fifteen (15) megalitres of water per Amount” day
“Metering means the metering equipment used to measure the Equipment” Supply as specified in Part 3 of Schedule 1 which shall at all times be owned, operated and maintained by Portsmouth Water.
“Minimum Daily means a minimum of one-half (0.5) megalitre of water Amount” per day.
"New Non- means a new non-household customer arising during the Household Supply contract period within the SHnts WRPZ, over and Customer" above those volumetrically represented in the demand forecast of Southern Water's current WRMP.
“Notice” means any notice given in accordance with Clause 12 .
Operational means a notice served in accordance with Clauses 6 or 7 Notice or, Schedules 3 or 4.
“Point of Supply” means the point(s) of supply summarised in Clause 3 and detailed in Schedule 2
“Regulations” means the Water Supply (Water Quality) Regulations 2000 as amended from time to time.
"Reasonable means the volumes of bulk water supply for the periods Endeavours and at the timing of the supply as set out in this Supply" Agreement that have no guarantee of availability from Portsmouth Water but which Portsmouth Water will use all reasonable endeavours to make available to Southern Water upon request by Operational Notice and in respect of which no Liquidated Damages would be payable if Portsmouth Water delays or fails to supply the requested volumes or requested timings.
“Subsequent means each period following the Initial Period for which Period” this Agreement continues pursuant to Clause 8
“Supply” means the supply of water from Portsmouth Water to Southern Water hereunder in each Supply Year
"Supply has the meaning given to it in Recital C, as more Infrastructure" particularly detailed in Schedule 2 (Supply Infrastructure).
“Supply Year” means a year of this Agreement from the Commencement Date to the 31st day of July 2018, and every 1st day of August of one year to the 31st day of July in the next calendar year.
1.2 Any references to a statutory provision order, regulation or statutory instrument shall include that provision, order, regulation or statutory
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instrument (as the case may be) as from time to time modified or re- enacted
1.3 Words importing the singular include the plural and vice versa and words importing one gender include the other gender.
1.4 Reference to a Schedule or Clause shall where the context so admits be a reference to a Schedule or Clause of this Agreement.
1.5 The Clause headings in this Agreement are for convenience only and shall not affect its interpretation.
2. SUPPLY
2.1 Subject to the terms of this Agreement Portsmouth Water shall with effect from the Commencement Date provide the Supply to Southern Water for the Initial Period and, subject to the provisions of Clauses 8 and 9 , during any Subsequent Period, and:
2.1.1 the Supply of the volumes for the periods and at the timings set out in Schedule 1 in respect of which an annual payment in advance is payable by Southern Water as part of the charges (in accordance with the agreed charging arrangements set out in Schedule 1) shall be a Guaranteed Supply;
2.1.2 the Supply of any additional volumes for the periods and at the timings set out in Schedule 1 which is not a Guaranteed Supply shall be a Reasonable Endeavours Supply.
2.2 Portsmouth Water shall have no obligation to provide the Supply on any day and Southern Water shall not take the Supply on any day:
2.2.1 in excess of the Maximum Daily Amount;
2.2.2 at less than the Minimum Daily Amount;
2.2.3 of any different amount of megalitres per day than is then being provided, unless the provisions of an Operational Notice are complied with as set out in Schedule 4.
2.3 The availability of the Supply throughout each Supply Year, the amount per day on each occasion the Supply is being provided and the requirements for Operational Notice to be given on each occasion when the Supply is required or the amount per day is required to be changed, are set out in Schedule 4 which may be amended in writing from time to time as agreed between the parties.
2.4 Southern Water shall use the Supply for the purpose of fulfilling its statutory duties of supply as a water undertaker under the Act, within its area of supply as delineated in its Instrument of Appointment at the date of this Agreement, and for no other purpose and within no other area.
2.5 In the event that Portsmouth Water makes a commercial arrangement to supply an Existing Non-Household Customer such supply would be
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accepted by Southern Water to be from within the contracted Supply volume so long as:
2.5.1 the arrangement does not limit Portsmouth Water’s capability to provide the Guaranteed Supply to Southern Water in accordance with this Agreement;
2.5.2 the volume of the arrangement is neutral to the supply-demand balance of existing customers at the time such supply is to be made in respect of how the Supply volume is expected to support that balance within Southern Water’s Water Resources Management Plan (or any superseding view of the supply-demand balance of equivalent published status);
2.5.3 the costs of Portsmouth Water’s supply access to and carriage through the Southern Water network from the Point of Supply are accommodated within the overall transaction for the arrangement between Portsmouth Water and that Existing Non-Household Customer;
2.5.4 the supply into the Southern Water network satisfies potable water quality supply standards as defined in the Regulations;
2.5.5 it is not in conflict with any relevant legislation or licence condition, current or arising.
2.6 If Portsmouth Water makes a commercial arrangement to supply a New Non-Household Customer:
2.6.1 the arrangement does not limit Portsmouth Water’s capability to provide the Guaranteed Supply to Southern Water in accordance with this Agreement;
2.6.2 Portsmouth Water must provide such supply volume in addition to the Supply volume if and to the extent that the supply to the New- Household Customer, when added to the volume of the Supply then being taken by Southern Water, exceeds the Maximum Daily Amount;
2.6.3 the provisions of Clauses 2.5.3 to 2.5.5 above shall also apply to any such supply.
3. POINT OF SUPPLY AND SUPPLY INFRASTRUCTURE
3.1
3.2 The Point of Supply is demarked by the valve and meter chamber on the Schematic Diagram included in Schedule 2.
3.3 Responsibilities for provision and funding of construction of the Supply Infrastructure facilitating the Supply, including the Point of Supply, and, ownership, operation and maintenance of said Supply Infrastructure and related monitoring are set out in Schedule 2 (Supply Infrastructure).
4. MEASURE AND RATE OF FLOW
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4.1 The volume of water supplied to Southern Water shall be the aggregate of that measured by the Metering Equipment which shall be supplied installed and maintained by Portsmouth Water measuring the flow to the Point of Supply.
4.2 Portsmouth Water may install its supply meter in a separate chamber upstream of the Point of Supply chamber so long as it is close enough to the Point of Supply so as to minimise risk of loss of water between the meter and the Point of Supply, the installation satisfies the hydraulic requirements for accurate flow measurement, the arrangement and meter display reading can be inspected by Southern Water on request and, the Point of Supply chamber and pipe alignment is constructed so as to be suitable for Southern Water to install a temporary meter, with access provided for Southern Water to do this upon request to Portsmouth Water.
4.3 The Metering Equipment will be read by an authorised employee of Portsmouth Water as nearly as practicable on the same day in each calendar month and in each Supply Year and, if requested by Southern Water, in the presence of an authorised employee of Southern Water.
4.4 Subject to sub-clause 4.6, the registration of the meter index shall be accepted as prima facie evidence of the volume of water supplied and Southern Water shall be responsible for paying for all the water recorded by the Metering Equipment notwithstanding any loss by leakage wastage or misuse unless such loss arises from the negligence of Portsmouth Water, its officers, employees, agents or contractors.
4.5 If so requested by either party, any Metering Equipment shall be tested for accuracy to the reasonable satisfaction of the requesting party who shall be entitled to be represented at such test, the cost of such test to be borne by the requesting party.
4.6 If from any cause the Metering Equipment shall have ceased working or failed to register accurately, the volume of water supplied since the previous agreed meter recording shall be calculated on the basis of the average quantity supplied during the equivalent period in the previous calendar year or any other relevant data as Portsmouth Water and Southern Water shall agree.
4.7 The meter reading of the volume of water supplied through the Metering Equipment shall be available by real-time telemetry signal to Southern Water and Portsmouth Water provided that each company shall bear the costs of receipt of the signal and Portsmouth Water shall bear the costs of provision and transmission of the signal.
5. CALCULATION AND PAYMENT OF CHARGES
5.1 From the Commencement Date Southern Water will, subject to clause 5.2 below, pay Portsmouth Water:
5.1.1 annual payments in respect of the Minimum Daily Amount as specified in Part 1 of Schedule 1 (Calculation and Payment of Charges) the first such payment being due and payable on the Commencement Date and all further payments to be due on the anniversary of the Commencement Date;
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5.1.2 annual payments for the Guaranteed Supply;
5.1.3 quarterly volumetric payments in respect of the Maximum Chargeable Daily Supply as specified in Part 2 of Schedule 1 the first such payment to be due at the expiration of the three month period from the Commencement Date and further payments to be due at the expiration of every three months after in respect of, and to the extent that any Supply is made in excess of the Minimum Daily Amount;
5.1.4 in respect of the Supply, the reasonable costs incurred by Portsmouth Water of complying with any changes taking effect after the date of this Agreement in the requirements to supply wholesome water in accordance with the Act and/or the Regulations or with any undertakings, relaxations or agreements agreed by Portsmouth Water with the Secretary of State for the Environment, Food and Rural Affairs or the Drinking Water Inspectorate relating to the quality of the Supply such costs to be reimbursed to Portsmouth Water immediately following the same being incurred by increases in the rates of charge per cubic metre applicable to the Supply at any such time as referred to in Parts 1 and 2 of Schedule 1 .
5.1.5 the costs incurred by Portsmouth Water in providing any necessary secondary chlorination facilities (the need for which shall be at the absolute discretion of Portsmouth Water) and in providing the daily information under sub clause 4.6 if so requested by Southern Water.
Provided that the payments under sub-clause 5.1.1 shall not be payable in respect of any period or periods, calculated on a daily basis, during which the Minimum Daily Amount is not supplied by Portsmouth Water to Southern Water hereunder for any reason other than in consequence of any request by Southern Water for the Minimum Daily Amount to be suspended for any reason or of Southern Water being unable to take the Minimum Daily Amount for any reason in either of which events the payments shall continue to be payable for the period of suspension or disability.
5.2 All payments due from Southern Water to Portsmouth Water under sub- clause 5.1 shall be made within 30 days of receipt of a valid tax invoice for the payment.
5.3 Every invoice delivered to Southern Water for volumetric payments under sub-clause 5.1.3 shall be based on the volume of water passing through the Metering Equipment since the previous reading for which an invoice for volumetric payments has been delivered.
5.4 If any invoice remains unpaid after the due date for payment Portsmouth Water shall (in addition to any other remedies) be entitled to charge interest on a daily basis on the amount unpaid on and from the date at the Contract Rate and Portsmouth Water may deliver to Southern Water a further invoice or invoices for such interest Provided that no such interest shall be payable in respect of the whole or any part of any invoice if and to the extent that Southern Water shall dispute the same and such dispute is
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either accepted by Portsmouth Water or resolved in Southern Water’s favour by determination pursuant to Clause 16.
5.5 In the event that Portsmouth Water delays or fails to provide the Guaranteed Supply as required by this Agreement and notwithstanding the provisions of Clause 7 below, then Portsmouth Water shall pay Liquidated Damages to Southern Water in respect of such delay or failure:
5.5.1 provided that where such Liquidated Damages are for delay, the Parties may mutually agree an extension of time (the period of such an extension of time to be determined by Southern Water having regard to its operational requirements), but, for the avoidance of doubt, such Liquidated Damages for delay shall become payable immediately upon the expiry of any such period of extension of time; and
5.5.2 Southern Water shall be entitled to deduct the amount of the Liquidated Damages from any charges payable to Portsmouth Water from Southern Water under this Agreement or otherwise or Southern Water may choose at its discretion to invoice Portsmouth Water for the sum due in which event the provision of Clauses 5.2 and 5.4 above shall apply in the reverse.
5.6 Liquidated Damages shall accrue as computed and calculated in accordance with the provisions of Part 6 (Liquidated Damages) of Schedule 1, which both Southern Water and Portsmouth Water agree are fairly arrived at and are reasonable and equitable, and are without prejudice to any other rights and remedies which Southern Water may have in the circumstances, and which do not impose a detriment on Portsmouth Water out of proportion to the legitimate interests of Southern Water.
5.7 Liquidated Damages shall not accrue or be payable if and to the extent that:
5.7.1 the failure or delay is a result of an Emergency and the provisions of clauses 7.4 and 7.5 with regard to restriction, interruption and suspension of Supply due to an Emergency have been met; or
5.7.2 the failure or delay is a result of a short term failing of the immediate Supply Infrastructure provided that such failure or delay shall not exceed a maximum of six (6) days in a period of 12 consecutive months and no one such event lasts more than two (2) consecutive days.
6. WATER QUALITY
6.1 Portsmouth Water will ensure that the quality of water supplied to Southern Water under this Agreement at the Point of Supply satisfies the duty upon statutory water undertakers to supply wholesome water in accordance with the Act and the Regulations subject to the terms of any undertakings, relaxations or agreements from time to time under the Act or the Regulations between Portsmouth Water and the Secretary of State for the Environment, Food and Rural Affairs or the Drinking Water Inspectorate and, subject to the above condition, no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to condition, quality,
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merchantability, fitness for purpose, suitability for distribution through Southern Water’s system of supply or otherwise is given or assured by Portsmouth Water in relation to the water supplied hereunder and all such warranties, conditions, undertakings and terms are hereby expressly excluded.
6.2 Notwithstanding anything contained in this Agreement, Portsmouth Water does not exclude any liability it may have under statute to Southern Water in respect of death or personal injury caused by its own negligence or that of its officers, employees, agents or contractors.
6.3 Portsmouth Water shall have no other liability to Southern Water in relation to any claims made by third parties against Southern Water in relation to the subject matter of this agreement, save for any breach by Portsmouth Water of any of its obligations under this Clause.
6.4 Portsmouth Water hereby agrees to notify Southern Water as soon as reasonably practicable and in line with the protocol set out in Schedule 3, following any matter coming to Portsmouth Water’s attention which may constitute or give rise to a breach by Portsmouth Water of any of its obligations under this Clause. In such event, Southern Water shall use its best endeavours to mitigate any loss, damage or injury in any way resulting from such matter or event and shall immediately upon becoming aware or being made aware of any possible claim against itself or Portsmouth Water, notify Portsmouth Water in writing giving all relevant information available.
6.5 Portsmouth Water shall as soon as reasonably practicable and in line with the protocol set out in Schedule 3, provide Southern Water with copies of all water quality tests and analyses carried out in respect of the Supply for compliance purposes pursuant to the Regulations..
6.6 Portsmouth Water confirms that there are no undertakings, relaxations or agreements under the Act or the Regulations at the date of this Agreement covering the source from which the Supply will be provided. Portsmouth Water will notify Southern Water as soon as practicable and in line with the protocol set out in Schedule 3, should any future undertakings relaxations or agreements be agreed with the Secretary of State for the Environment, Food and Rural Affairs and/or the Drinking Water Inspectorate relating to the quality of the Supply.
6.7 If Portsmouth Water is aware of a contravention or potential contravention of a water quality requirement of the Regulations which in any way affects or may affect the Supply, it shall use all reasonable endeavours to notify Southern Water as soon as practicable and in line with the protocols set out in Schedule 3, in accordance with the procedures set out therefore in Schedules 4 and 5.
6.8 Should a contravention occur or a potential contravention arise, both parties will provide such assistance as the other may reasonably require and shall nominate an appropriate representative in order that any actions/remedial measures required are co-ordinated.
7. RESTRICTION, INTERRUPTION AND SUSPENSION OF SUPPLY
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7.1 Portsmouth Water may after giving Southern Water reasonable notice of planned works in line with the expectations of notice period set out in Schedule 4, restrict, interrupt or suspend the Supply and, should Southern Water propose planned operational changes which may affect the Supply, it shall notify Portsmouth Water as soon as reasonably practicable.
7.2 Where Portsmouth Water’s ability to make the Supply is affected by unavoidable unplanned cause (incident or accident) including contingencies affecting its works, pipes, machinery or apparatus, it may restrict, interrupt or suspend the Supply, provided that Portsmouth Water shall at all times use all reasonable endeavours to prevent any of such incidents or accidents occurring and, in the event that they do occur, shall use all reasonable endeavours to continue to supply Southern Water whatever quantities of water it reasonably can during the continuance of the restriction, interruption or suspension and use all reasonable endeavours to resume the Supply as soon as practicable after the restriction interruption or suspension. As these circumstances arise and are managed, Portsmouth Water will make all reasonable endeavours to give notice in line with the notice periods expected for planned events as set out in Schedule 4 and to communicate more immediate impacts urgently and, should Southern Water require to make operational changes which may affect the Supply, it shall notify Portsmouth Water as soon as reasonably practicable.
7.3 Before commencing any tests or works likely to cause material restriction, interruption or suspension in the Supply Portsmouth Water shall, except in the case of an Emergency, give to Southern Water such warning as is reasonably practicable, in line with the notification periods set out in Schedule 4 .
7.4 Should an Emergency occur which affects the Supply, Portsmouth Water shall as soon as reasonably practicable and, with best endeavours to be in line with the notice periods set out in Schedule 4, notify Southern Water and should Southern Water encounter Emergency which requires Southern Water to make operational changes which may affect the Supply, it shall notify Portsmouth Water as soon as reasonably practicable.
7.5 Should an Emergency occur which affects Portsmouth Water’s other sources or supplies such that Portsmouth Water determines, in its absolute discretion, that not to curtail the Supply would materially prejudice its ability to supply water to its other customers from time to time, Portsmouth Water will discuss with Southern Water to determine an agreed approach to balance mitigation of impacts on Portsmouth Water’s and Southern Water’s customers. In this circumstance and for so long as it shall continue, Southern Water will urgently endeavour to reduce or avoid the requirement for the Supply to be provided.
7.6 Should a major operational problem occur which affects or may affect the Supply, both parties shall nominate an appropriate representative in order that any actions necessary are co-ordinated.
8. SUBSEQUENT PERIODS
8.1 If Southern Water desires this Agreement to continue for any Subsequent Period it must serve a Request Notice on Portsmouth Water at least five years prior to the expiry of the Initial Period or any Subsequent Period, as
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the case may be, provided always that the Parties may agree to waive the notice period.
8.2 If Portsmouth Water receives a valid Request Notice prior to the expiration of the Initial Period or any Subsequent Period, as the case may be, Portsmouth Water shall have 48 days from the receipt of the Request Notice to serve a Counter Notice on Southern Water indicating the terms on which it is prepared to continue the Supply for the Subsequent Period specified in the Request Notice.
8.3 If Southern Water accepts the terms of the Counter Notice it shall indicate such acceptance by serving an Acceptance Notice on Portsmouth Water within 48 days of its receipt of the Counter Notice and the Agreement shall continue until the expiration of the Subsequent Period for which it has been extended, on the accepted terms.
8.4 If Southern Water does not accept the terms of the Counter Notice by serving an Acceptance Notice on Portsmouth Water within the period specified in sub-clause 8.3 the terms shall be referred to the Authority for determination pursuant to Section 40 of the Act and the Agreement shall continue until the expiration of the Subsequent Period for which it is extended, on the terms so determined.
8.5 For the avoidance of doubt, Southern Water acknowledges that notwithstanding that a Request Notice for the continuation of this Agreement for any Subsequent Period is required to be served during the continuance of the Initial Period or any Subsequent Period, as the case may be, no such Request Notice shall include any proposal for the variation of any of the terms of the Agreement applying at the date of such Request Notice, to take effect prior to the expiration of the Period during which such Notice is served, or for the same to have retrospective effect.
9. TERMINATION
9.1 If Southern Water fails to serve a Request Notice on Portsmouth Water in accordance with Clause 8.1 this Agreement shall terminate at the expiration of the Initial Period or then subsisting Subsequent Period in which such failure occurs.
9.2 Without prejudice to any antecedent rights or remedies of either Party, either Party may terminate this Agreement:
9.2.1 forthwith on Notice if the other party goes into liquidation either voluntarily or compulsorily (save for the purposes of reconstruction or amalgamation) or if any administrator or administrative receiver is appointed in respect of the whole or any part of its assets or if it makes or offers to make any arrangement or composition for the benefit of its creditors generally or if a Special Administration Order is made in relation to the other party under Section 24(1) of the Act; or
9.2.2 on 28 days written notice if the other party is in material breach of any terms or conditions of this Agreement and in the case of a remedial breach has failed to remedy such breach within 40 days
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of receipt of a written request from the other party detailing the breach and requiring it to be remedied.
9.3 In the event that
9.3.1 Portsmouth Water is unable to provide the Supply due to any of the circumstances set out in Clause 7 and has complied with all the provisions of that Clause; and
9.3.2 that inability continues for a continuous period of 10 months or any number of periods aggregating not less than 10 months in any continuous period of 2 years
Southern Water shall be entitled to terminate this Agreement on 28 days’ notice at any time during a period of 3 months’ after such inability to supply has occurred for a continuous or aggregate period of 10 months, as the case may be.
9.4 On termination of this Agreement Southern Water shall pay Portsmouth Water all sums due under this Agreement up to the date of termination.
9.5 Should Portsmouth Water terminate the Agreement before the Initial Period or any agreed Subsequent Period is concluded, other than in accordance with its terms, Portsmouth Water will be liable for the reasonable costs Southern Water may incur in identifying and implementing an alternative supply to its affected customers.
10. REVIEW
10.1 At any time following a material change to the statutory provisions or any relevant guidance issued by the Authority pertinent to the terms of this Agreement or on each fifth anniversary of the Commencement Date (a “Review Date” ) either party may require a review of all or any of its terms with a view to establishing that the same remain reasonable and appropriate in the light of the statutory provisions and relevant guidance and other relevant circumstances applying at the Review Date. If agreement cannot be reached on any variation sought the matter shall be resolved in accordance with Clause 16 ,
10.2 Either party may also call for a review of terms not more than two years but not less than six months ahead of a Regulatory Business Planning submission requirement such that any agreed revision of terms would be accommodated in a new Business Plan submitted to the Authority and to be represented consistently by both companies in such submitted plans, provided that if no such revised terms can be agreed for any reason, the terms then current shall continue to apply.
11. STATUTORY AND OTHER RIGHTS
11.1 Nothing in this Agreement shall prejudice or affect the rights or powers of Portsmouth Water conferred by any enactments, regulations, bye-laws or orders or by Common Law.
12. NOTICES
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12.1 Any notice to be given by either party to this Agreement shall be in writing and shall be deemed duly served if delivered personally or sent by facsimile or email or by pre-paid first class post to the addressee at the address or (as the case may be) the facsimile number of that party set opposite its name below:
Portsmouth Water The Company Secretary Portsmouth Water Ltd PO Box 8, West Street, Havant, Hampshire PO9 1LG Email ------Facsimile No. 02392 453632
Southern Water The Company Secretary Southern Water Services Ltd Southern Water House, Yeoman Road, Worthing BN13 3NX Email to [email protected] Facsimile No. 01903 695674
or at such other addresses (or facsimile numbers) as the party to be served may have notified in accordance with the provision of this Clause for the purpose of the Agreement.
12.2 Any notice sent by facsimile shall be deemed to be delivered when despatched and any notice served by pre-paid first class post shall be deemed so 48 hours after posting. In proving the service of any notice it shall be sufficient to prove in the case of a letter that such letter was properly stamped addressed and posted in the post or delivered or left at the current address if delivered personally and in the case of a facsimile such facsimile transmission was duly despatched to the facsimile number of the addressee given above or subsequently notified for the purposes of this Agreement.
12.3 Any notice to be given by either party to this Agreement may also be given by email but will not be deemed delivered and accepted unless and until an express non-automated acknowledgement of the email has been sent by the party nominated to receive notices under this Clause.
13. VALUE ADDED TAX
13.1 All monies payable by Southern Water to Portsmouth Water shall be exclusive of value added tax (or other tax or taxes levied after the date of this Agreement) and Southern Water shall pay Portsmouth Water any value added tax (or other tax or taxes so levied) chargeable in respect of any supply made by Portsmouth Water hereunder.
14. ASSIGNMENT
14.1 Portsmouth Water may assign or otherwise transfer or sub-contract this Agreement in whole or in part or any right benefit or interest in this Agreement to any other person by notice to Southern Water.
14.2 Southern Water shall not assign or otherwise transfer or sub-contract this Agreement in whole or in part or any right benefit or interest in this
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Agreement to any other party without the prior consent in writing of Portsmouth Water, such consent not to be unreasonably withheld.
15. ENTIRE AGREEMENT
15.1 This Agreement shall constitute the entire agreement between the parties with respect to its subject matter and supersedes all previous agreements and understandings between the parties in that respect and each of the parties acknowledges and confirms that it has not entered into this Agreement in reliance on any representational warranty or other undertaking not fully reflected in the terms of this Agreement.
15.2 No amendment modification or substitution of this Agreement shall be effective unless executed in writing by both parties.
16. DISPUTES
16.1 In the event of any dispute arising between the parties relating to this Agreement, each undertakes to the other to use all reasonable endeavours to resolve the same in good faith and if after using all such reasonable endeavours the parties cannot resolve a dispute then the parties will seek to agree upon the use of an appropriate arbitrator, appointed jointly (or nominated by the President for the time being of the Law Society in the absence of agreement between the parties) to determine any dispute which they are unable to settle between them, the decision of such arbitrator both as to the substance of the dispute referred to him and as to the responsibility for the costs of the arbitrator’s determination to be binding on the parties unless there is evidence of manifest error or unless either party is dissatisfied therewith and the subject matter of the dispute is within the jurisdiction of the Authority under Section 40 of the Act in which event either party shall be entitled to refer the dispute to the Authority.
AS WITNESS the hands of the parties or their duly authorised representatives the day and year first above written (See signature page after Schedules)
.
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SCHEDULE 1 - CALCULATION AND PAYMENT OF CHARGES
NOT INCLUDED INTHIS DRAFT – COMMERCIALLY CONFIDENTIAL
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SCHEDULE 2 – PROVISION, OWNERSHIP, OPERATION AND MAINTENANCE OF SUPPLY INFRASTRUCTURE
Performance Specification and Design
A performance specification concerning the infrastructure that will facilitate the supply to Southern Water at the Point of Supply has been provided by Southern Water to Portsmouth Water for the design and implementation of the Supply Infrastructure, the final design version (document reference 629022-X-SPC) of which is appended to this Schedule 2 Annex 2 (Performance Specification Design Document).
Portsmouth Water is to ensure that this performance specification (as finalised and confirmed) is met in design, implementation and operation of the Supply Infrastructure.
Responsibilities
Responsibilities between Portsmouth Water and Southern Water for the Supply Infrastructure are divide as follows:-
Portsmouth Water will procure, install, maintain and operate the pumps and pump control facility to provide the Supply to and through the Point of Supply and onward to connection into Southern Water’s supply system. The pumps to be capable of a continuous flow rate of up to 15 Ml/d. or flow rate of up to 15 Ml/d equivalent.
Portsmouth Water will procure, construct, own, operate, maintain and renew the section of pipeline from the pumps to the Point of Supply. xxxxxx
Portsmouth Water will procure, install, own, operate, maintain and renew the flow meter measuring the Supply, including the on-site meter reading display facility and telemetry signal transmission to Portsmouth Water and Southern Water. Portsmouth Water will maintain the Point of Supply (chamber, valving etc), meter chamber ad Supply meter.
Portsmouth Water will procure, install, own, operate and maintain the water quality sampling of Supply to and at the Point of Supply, including responsibility for the provision of said data to Southern Water.
Portsmouth Water will connect the section of pipeline that it constructs at the Point of Supply to the blank plate of the flanged pipe that Southern Water will provide as the upstream end of its own installation responsibilities.
Southern Water has funded Portsmouth Water’s purchase, installation and/or construction of the Supply Infrastructure up to and at the Point of Supply confirmed as Portsmouth Water’s responsibility above.
Southern Water will construct the Point of Supply chamber and connection valving, Portsmouth Water will take ownership of these and maintain them.
Southern Water will construct, own, operate and be responsible for the maintenance and renewal of the section of pipeline from the Point of Supply to and including the connection into Southern Water’s supply network, including such section of the pipeline that may be constructed on Portsmouth Water's land. This pipeline to have capacity to 30 Ml/d.
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Portsmouth Water will provide access to Southern Water to the Point of Supply. the Supply meter, the on site meter reading display and, on site water quality sampling facility, upon Notice of request by Southern Water.
Southern Water is responsible for the provision and maintenance of the remainder of the water Supply Infrastructure within Southern Water’s network.
Southern Water recognises that Portsmouth Water has utilised currently spare space in its existing pump house to install the pumps for the Supply. Southern Water recognises that should Portsmouth Water require additional pump housing space or building in future to replace that now dedicated to the Supply, Southern Water will cover the reasonable and necessary costs (circa. £500,000) of this.
Pump Control
The pumps and pumo control system should meet the performance specification (document reference 629022-X-SPC) of which is appended to this Schedule 2 Annex 2 (Performance Specification Design Document) or any subsequent agreed and registered update of this.
It is recognised that the Supply Infrastructure assets (excluding pipework) planned by Portsmouth Water (and the charges for the Supply) allow up to 20 Ml/d Supply to Southern Water. Any requirement to increase the supply to 30 Ml/d can be achieved by installation of larger pumping plant but may also result in significant inefficiencies of operation, in particular higher unit electricity costs. Portsmouth Water shall have the right to review and revise the volumetric charges structure if Southern Water requires Supply above the maximum 20 Ml/d currently planned and to procure and install replacement pumps at Southern Water’s expense.
Portsmouth Water shall procure, install, own, operate, maintain and renew the pumps.
Maintenance
Portsmouth Water will carry out all planned maintenance of the Supply Infrastructure it is responsible for in relation to the Supply outside of the summer season (June to September inclusive). Any routine planned maintenance, which is likely to affect the Supply, must be notified to Southern Water in line with the notification periods indicated in Schedule 4.
Telemetry
A telemetry link will provide the following outputs to Southern Water and Portsmouth Water:
• Point of Supply control valve status and percentage open
• Supply flow rate in litres per second
• 24 hour cumulative flow
• 7 day integrated flow reading.
• 30 day cumulative flow.
• Annual cumulative flow
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• Chlorine residual of water provided to the Point of Supply.
• Turbidity of water provided to the Point of Supply.
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Schedule 2 - Annex 1: Schematic Diagram
Ref. document – “55-323-6 River Itchen Water Treatment Works Schematic – Bulk Supply to Southern Water.pdf”
The schematic to be embedded in this page of the final version of the contract document.
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Schedule 2 - Annex 2: Performance Specification Design Document
Final version to be included. – at time of this draft, some discussions at still ongoing between the respective project and engineering teams.
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SCHEDULE 3 - WATER QUALITY
To avoid concerns with regards water quality, Portsmouth Water will provide and Southern Water will take a daily sweetening flow of 0.625 Ml. Portsmouth Water will normally provide this as a 1 hour period, typically during the period ttt hours to uuu hours.
Portsmouth Water will monitor (sample) the water quality to and at the Point of Supply.
Chlorine residual will be monitored by Portsmouth Water. In the unlikely event that secondary chlorination facilities are required, these will be located at the Point of Supply, dosing will be the responsibility of Portsmouth Water to operate and maintain.
Portsmouth Water shall provide turbidity control on sources feeding the scheme, with the alarms set at less than or equal 0.6 NTU with auto-shutdown in the event of turbidity exceeding 0.95 NTU for a period of 30 minutes or more.
Portsmouth Water shall as soon as reasonably practicable and in line with the schedule provide Southern Water copies of all water quality tests and analyses carried out in respect of the supply for compliance purposes pursuant to the Regulations.
Southern Water will carry out routine monitoring at the point of connection into Southern Water supply system and any infringement of the Regulations will be notified to Portsmouth Water immediately and the Supply will be temporarily stopped for the duration of the incident.
Any infringements of the Regulations revealed by either Portsmouth Water’s or Southern Water’s monitoring programmes should be notified to the other party immediately, with details of the infringement and the action being taken. The Supply will be temporarily stopped for the duration of the incident.
Should an infringement occur both parties will provide, at their own cost, such assistance as the other may reasonably require and shall nominate an appropriate representative in order that any actions/remedial works required are co-ordinated.
Portsmouth Water and Southern Water will be responsible for all contact and liaison with DWI concerning any notifiable event that occurs on the respective components of the transfer scheme which they operate and maintain (as defined in 'Responsibilities' in Schedule 2 above).
Schedule 3.1 -Water Quality Incidents
Chemical & Trace Organic Parameters
Liaison will take place the same day following any PCV exceedance where it is believed that the exceedance may impact on the Supply, this includes but is not limited to pesticides and hydrocarbons.
Microbial Parameters
Liaison will take place the same day following detection of any of the microbial parameters shown below where it is believed that this may impact on the Supply.
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• Presumptive and/or confirmed Coliform
taken from WTW (final), reservoir or tower or break pressure tank
• Confirmed Coliform
taken from a customer tap; unless there is sufficient evidence the failure is attributable to the customer fitting and will not impact on the Supply
• Presumptive E.coli
taken from WTW (final), reservoir, tower, break pressure tank or customers tap unless there is sufficient evidence that the failure is attributable to a customer fitting and will not impact on the Supply
• Confirmed E.coli
taken from WTW (final), reservoir, tower, break pressure tank or customers tap unless there is sufficient evidence the failure is attributable to a customer fitting and will not impact on the Supply.
• Presumptive Enterococci
taken from WTW (final), reservoir, tower or break pressure tank
• Confirmed Enterococci
taken from WTW (final), reservoir, tower or break pressure tank or a customer tap; unless there is sufficient evidence the failure is attributable to the customer fitting and will not impact on the Supply
• Presumptive Clostridium Perfringens
taken from WTW (final), reservoir, tower or break pressure tank
• Confirmed Clostridia Perfringens
taken from WTW (final), reservoir, tower or break pressure tank or at a customer tap; unless there is sufficient evidence the failure is attributable to the customer fitting and will not impact on the Supply
• Cryptosporidium Oocyst
detection in final water or distribution
Biological Parameters
Liaison will take place where the detection of aquatic organisms are found in significant numbers such that customers have or are likely to become aware of these organisms and may impact on a bulk supply:
• Algae
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• Fly larvae (chironomids, etc.)
• Crustacea (gammarus, Cyclops, etc.)
Water Quality Events
Liaison will take place for any of the water quality events listed below where it is believed that it may impact on the Supply:
• Where any circumstances arise which have led to a breach of Regulation 4 (or where the notifying party believes there is a significant risk of such a breach) which could impact the Supply.
• Potential for or actual widespread discolouration
• any significant aesthetic issue affecting appearance, odour or taste which the notifying party believes may have an impact on, or be attributed to, the Supply
• Failure of disinfection
• Any risk to public health
• Any notification of an event to a Regulatory, a Health Authority or Local Authority that may impact the Supply.
• Widespread air in water after a planned or unplanned event
• The provision of advice to refrain from using water as normal
• Significant increase in cases of cryptosporidium in the community related to water supply
• Any media interest that causes customers concerns about the water quality of the Supply.
In addition:
• Widespread loss of supply
• Breach of security where there is suspected or actual access to treated water.
Drinking Water Safety Plan
Information and data from DWSP will be shared between each company, highlighting areas of high risk.
Furthermore, the Supplying Company will provide the Receiving Company with the following:
• a copy of any Authorised Departure or Undertaking (including the schedule of works), associated with the Supply;
• a copy of any relevant part of a Notice or Report associated with the Supply;
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• details of the Source to Tap Chain, including any material changes to the Source to Tap Chain before they occur (except in the case of emergencies where the Supplying Company should inform the Receiving Company as soon as practicable after necessary action is taken); and
• The Supplying Company will keep the Receiving Company fully informed if seeking an Authorised Departure or Undertaking which affects the Supply or if a Notice is received which affects the Supply.
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SCHEDULE 4 – NOTIFICATION EXPECTATIONS
Operational notices.
Southern Water should give at least 2 weeks notice to Portsmouth Water for the Supply first to be provided in any six month period over and above the sweetening flow.
Once being provided above the sweetening flow. Southern Water will give 2 working days’ notice for increase or decrease of flow required.
Except in an Emergency, Portsmouth Water shall give Southern Water at least 5 days notice of a temporary reduction in supply, including reduction or cessation of the sweetening flow. Portsmouth Water will apply all reasonable endeavours to ensure that once a supply is being made, such marginal reductions do not exceed 25% or else, the longer notification periods set out below for planned outage should apply.
If an Emergency arises, this should be notified immediately to the other party, with clarification of actions taken or to be taken.
Note: In an Emergency Southern Water will be able to close a manually operated sluice valve downstream and within the Break Pressure Tank site.
Planned outage notifications
Planned outage should be notified in proportion to the scale and duration of the outage in line with the following guiding framework. Portsmouth Water should not proceed with planned outage affecting the provision of the Supply unless Southern Water has confirmed it can find other means of supplying its customers
Whole supply unavailable 1 year 6 months 3 months 1 month 2 weeks
Notice expected 12 months 8 months 6 months 3 months 2 months.
Half supply unavailable 1 year 6 months 3 months 1 month 2 weeks
Notice expected 6 months 4 months 2 month 1 month 1 month.
Quarter supply unavailable 1 year 6 months 3 months 1 month 2 weeks
Notice expected 4 months 3 months 2 month 1 month 1 month
Means of providing formal notices.
Accepted means of providing formal notices are covered in the Agreement.
Notification of contract review, renewal or termination
These are covered in the Agreement.
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SCHEDULE 5 – LIAISON AND POINTS OF CONTACT.
For notifications, the Southern Water Section Leader (or other designated person) based at the Otterbourne Water Supply Works, or the Southern Water Control Centre, gives notice to the Portsmouth Water Supply Manager (or other designated person) and vice versa.
The day to day operational ownership of this Agreement should be the Southern Water Section Leader (or other designated person) based at the Otterbourne Water Supply Works, the Portsmouth Water Supply Manager (or other designated person) and vice versa.
As at December 2016 the relevant primary personnel are:-
Dave Harding for Southern Water and
Richard Keates for Portsmouth Water
The Parties shall meet together at approximately six monthly intervals to monitor the suitability and effectiveness of the procedures comprised in Schedule 2 with the intention that it will be updated from time to time to ensure identified improvements are applied and all requirements continue to be met.
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SIGNATURE PAGE
Signed by for and on behalf of PORTSMOUTH WATER LIMITED
in the presence of:
Signed by for SOUTHERN WATER SERVICES LIMITED
in the presence of:
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