BETWEEN · Web viewA schedule setting out which elements of the Contestable Works are to be...

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Introduction to draft Model Adoption Agreement-Water

General

There are a number of areas which are likely to further develop and inform the Agreement drafting once they have been concluded/agreed. At the appropriate time, it will be necessary to carry out an exercise to cross reference and consistency check the Agreement against the Water Sector Guidance and the Procedures documents also.

Risk and Compensation

The Consultees are now encouraged to have a discussion about the practical balance of risk sharing in an Adoption Agreement. A discussion is needed around the key areas where there is real risk to a Party as a result of non-compliance with a provision of the agreement or the procedures and whether or not some form of financial compensation is appropriate (through things like delay damages or capped indemnities).

In the current version of the Agreement, the Procedures form a binding part of the overall contract. This may not be appropriate given that the parties start to follow the procedures some time before the Agreement becomes legally binding on the Parties. If the Procedures simply remain in the Water Sector Guidance without forming part of the Adoption Agreement, then the parties find themselves in the unusual position that the Procedures can be mandated on the water companies by Ofwat but not on the SLP or Developer. As such, some thought needs to be given to contractual compliance of all parties with the procedures and whether compliance with certain steps should be set out in the Agreement as a contractual obligation.

The concept of where the risks sits and what form of compensation is appropriate is also linked to the concept of Redress which is continuing to develop.

Balanced and Fair

In terms of whether or not the agreement is balanced and fair, Consultees may wish to consider the following:

All parties, including the water companies, are required to comply with their obligations and roles under the Agreement. So all parties warrant that they will construct, install and commission the Contestable Works in accordance with the Agreement and its Schedules and Good Industry Practice amongst others. Water companies are equally responsible for the aspects of the works which they are undertaking in each Agreement. Failure by each of the

Adoption Agreement (Consultation Version 1) 2.10.18

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parties to do so will amount to breach of warranty and breach of contract giving rise to a claim in common law damages.

It’s also helpful to keep in perspective where the main risk actually sits under an adoption agreement. Is it that the Developer won’t be paid or that the water company will become responsible for a defective water asset. Certainly, as water companies are not the customer or employer required to pay the SLP for its construction services, there should not be a risk that the SLP isn’t paid on time or in stages. That risk sits separately in the construction contract between the Developer and the SLP it has appointed. Is there a ‘risk’ that for any number of reasons (not all of which are connected with poor performance of the water company) the vesting of the adopted asset won’t take place on the Developer’s preferred date? Quite possibly, so the question for the industry to consider is whether or not there is any appetite for water companies (and their household customers ultimately) to pay delay liquidated damages to Developers in specified circumstances.

Defect Correction

Aside from the generic obligations on all parties to comply with applicable law, the Agreement and Good Industry Practice, there is an additional requirement on the Developer and SLPs to compensate water companies for ‘defects’ to the assets which become apparent during the first 12 months following vesting. This should not be of concern to any of the parties given that it is standard in any construction type agreement and also in similar contracts used in the electricity and gas sectors. As there is no retention payment to the disadvantage of the water companies, it will be for water companies to expend time and money attempting to recover compensation from the Developer and/or the SLP. Clearly, the water companies themselves wouldn’t be required to enter into a defects correction provision given that if any part of the works undertaken by the water company were defective, it would be for the water company alone to correct its own asset, at its expense.

Indemnities

All parties, including water companies are providing in indemnity in favour of the other(s) for losses incurred for death, personal injury and damage to real and personal property for breaches of the Adoption Agreement.

The SLP’s and Developers have an additional requirement to indemnify water companies for damage, accidental or otherwise, to the Adopted Contestable Assets. The only difference is that the drafting spells out the damage to real property includes damage to the adopted assets which might occur whilst work is ongoing on a live construction site.

The level of the indemnity cap also needs to be agreed.


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DATED 2018

MODEL WATER ADOPTION AGREEMENT [WATER MAINS & ASSOCIATED INFRASTRUCTURE]

[WATER COMPANY]

-and-

[SELF LAY PROVIDER]

-and-

[DEVELOPER]


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[Reference Number]:

TABLE OF CONTENTS

GENERAL CONDITIONS

SCHEDULE 1: Connection Specification

SCHEDULE 2: The Programme (indicative water main phasing) SCHEDULE 3: Company Works (and Charges) (the works to be carried

out by the Company)

SCHEDULE 4: Payments


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THIS WATER ADOPTION AGREEMENT is made the [XXX] day of 2018.

BETWEEN

1. [WATER COMPANY] Registered Number [xxx] a company registered in England and Wales whose registered office is at [Address] (“the Company”);

2. [SELF LAY PROVIDER] Registered Number [xxx] a company registered in England and Wales whose registered office is at (“the SLP”);

3. [DEVELOPER] being the Party responsible for the Development with Registered Company Number [xxx] whose registered office is at [Address] (“the Developer”);

4. [None] whose registered office is at [None] (Company registration no. [None]) (“the Owner”), being the owner of the Site (if not the Developer);

5. [None] whose registered office is at [None] (Company registration no. [None]) (“the Adjoining Owner”), being the owner of land adjoining the Site, in which Self Lay Works are also to be undertaken;

6. [None] whose registered office is at [None] (Company registration no. [None]) (“the Surety”), being the Party providing security for the Self Lay Works and the payments to be paid to the Undertaker1

each a "Party" and together the "Parties".

WHEREAS

(A) This Adoption Agreement is a section 51A Water Industry Act 1991 (“WIA” or the “Act”) agreement for the construction of water infrastructure Contestable Assets by the SLP and/or the Developer and the transfer of ownership of those Contestable Assets to the Company.

(B) Ofwat has issued a code called the ‘Code for Adoption Agreements for water and sewerage companies operating wholly or mainly in England’ pursuant to section 51CA of the Act which makes provision in relation to the terms and conditions of a section 51A agreement.

(C) This Adoption Agreement, together with its Schedules and the ‘Water Sector Guidance’ is in the form prescribed by Ofwat in the Code for

1 The matter of a surety will also depend on the outcome of the procedures formulation and has been included in this draft for completeness and further instruction.Adoption Agreement (Consultation Version 1) 2.10.18

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Adoption Agreements and applies to all of the new connection services required by the Developer and/or the SLP from the Company pursuant to this Agreement.

(D) The Company is a water company appointed under section 6 of the WIA in whom the Contestable Works will be vested.

(E) The Company shall carry out the Company Works in accordance with its obligations in Schedule 3.

(F) The Developer shall carry out those of the Developer Contestable Works at the Site as set out in Schedule 1 (Connection Specification).

(G) The Developer has appointed the SLP to carry out the SLP Contestable Works at the Site on its behalf as set out in Schedule 1 (Connection Specification).

(H) The SLP is an Accredited provider of water connections.

(I) The Developer and/or SLP as appropriate, wish to vest the Contestable Assets in the Company.

(J) The Company has agreed to Adopt the Contestable Assets upon their satisfactory completion in accordance with this Agreement and the achievement of certain conditions precedent2.

2 It will be important for the Parties to set out clearly what documentation absolutely must be provided by SLP/Developer in order to for the Parties to sign the Adoption Agreement. Adoption Agreement (Consultation Version 1) 2.10.18

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GENERAL TERMS AND CONDITIONS

THE PARTIES agree as follows:

1 DEFINITIONS & INTERPRETATION

1.1 In this Agreement, the definitions and rules of interpretation shall have the following meanings:

Accredited3 at all times satisfying the requirements of WIRS for persons carrying out the design and construction of Contestable Works and “Accredited” to carry out contestable works”, “Accredited”, “Accreditation” the “Accreditation Scheme” and other cognate expressions shall be construed accordingly.

Accreditation shall be through WIRS and will include accreditation in scopes relevant to the Contestable Works as agreed with the Company, which may include:

1. Point of Connection identification

2. design

3. all associated civil engineering works including excavation, p ipe laying, backfilling and permanent reinstatement;

4. project management (save that no Company shall be obliged to enter an adoption agreement with an SLP which is solely accredited for project management and does not hold accreditation in respect of paragraph 3 above).

Act or WIA the Water Industry Act 1991 (as amended);Adjoining Land the land where part of the Self Lay Works are to

be undertaken which adjoin the Site, (shown edged brown on the Layout Plan). This adjoining land is owned by a person other than the Developer or the Owner of the Site;

Adopted Contestable Assets

the Contestable Works (or each Section) after Adoption;

Adoption the point at which the Contestable Works

3 Please note that the exact wording of the definition of ‘Accreditation’ will depend on the outcome of ongoing discussion and agreement in this regard. Also, the accreditation of subcontractors carrying out activities in respect of Service Pipe connections will be subject to alternative accreditation requirements from WIRS. This will be further clarified in this definition.Adoption Agreement (Consultation Version 1) 2.10.18

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become vested in the Company by virtue of section 179 of the Act;

Adoption Date the date on which the Contestable Works or any Section as stated in a De c l a r a t i o n o f V e s t i ng a r e Adopted by the Company in accordance with clause 9;

Agreement this Adoption Agreement, its Schedules and the Procedures set out at [appendix XX] of the Water Sector Guidance as varied or amended from time to time;

Applicable Law all relevant, applicable, legislation, whether primary or secondary, regulations or codes of practice having the force of law, determinations of any governmental authority (or other body exercising similar functions), rulings of any UK court or any recorded restrictive covenant applicable to this agreement and includes amongst others:

New Roads and Street Works Act (NRSWA), Regulations and Codes of Practice;

Traffic Management Act and permit schemes;

Construction (Design and Management) Regulations (CDM);

health and safety; public safety (including signing,

pedestrian re-routing, barriers); Water Supply (Water Quality)

Regulations; Water Supply (Water Fittings)

Regulations; Fire and Rescue Services Act; Environmental Protection Act; Control of Pollution Act; Waste Duty of Care Code of Practice; compliance with the law relating to the

use of personal data, including the General Data Protection Regulation 2016. The parties acknowledge that neither party is acting as a data processor (as defined in the General Data Protection Regulation 2016) on behalf of the other.

Asset PaymentCode for Adoption Agreements or the “Code”

the code binding on all water companies entitled ‘Code for Adoption Agreements – For water and sewerage companies operating


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wholly or mainly in England’ published by Ofwat in November 2017 as updated or amended;

Company Design the design of the Contestable Works commissioned by the (SLP/Developer) and produced by the Company. For the avoidance of doubt, the Company is responsible for all risk in the Company Design;

Company’s Works the works to be carried out and completed by the Company as described in Schedule 3. Where no Company Works are to be undertaken, this shall be specifically stated in Schedule 3;

Codes Panel the panel established by Ofwat from time to time under the Code for Adoption Agreements;

Connection TBC pending further discussion;Connection Specification

the design and technical requirements for the Contestable Works agreed by the Parties in respect of the Site, located in Schedule 1 of this Agreement. The Connection Specification shall contain as a minimum, the following:

(i) either the Company Design or the SLP Design as appropriate;

(ii) the Plan;(iii) Land Rights4 (including confirmation

by Developer of the affected landowner(s))

(iv) A schedule setting out which elements of the Contestable Works are to be undertaken by the Developer (Developer Contestable Works) and SLP (SLP Contestable Works) respectively and allocating responsibility for them;

Contestable Assets those Contestable Works which will form part of the Network upon Adoption, but excluding works which do not form part of, or are not necessary to support the assets (e.g. excludes reinstatement etc.);

Contestable Works the works to be carried out and completed by

4 Consultees may also wish to consider whether it is helpful to refer to the developer’s rights over adjoining land where water mains may be laid? The legislation concerning adoption of water infrastructure is very different from that in relation to sewerage infrastructure and may be taken to assume that pipework is laid in the developer’s land or in highways under section 50 licences, perhaps. For example, it includes no right of appeal against a water company that issues a vesting declaration in respect of water pipes that a third Party may have come to own by accession. Nevertheless, the Parties may wish to consider what will be appropriate and acceptable to them where pipework is laid in third Party private land. Sewers for Adoption sets out an appropriate form of easement for this activity which ought to be considered in the context of water infrastructure.Adoption Agreement (Consultation Version 1) 2.10.18

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the SLP and/or Developer at the Site and to be Adopted by the Company under this Agreement;

Contribution Payment

the sum agreed to be pa id by the SLP to the Company se t ou t in Schedu le 3 as a contribution by the SLP towards the cost of the Company’s Works;

Day Working Day. A notice received after 3.00 p.m. on a Day shall be considered to have arrived on the following Day;

Declaration of Vesting

certificate in the form set out in Schedule 3, issued by the Company pursuant to clause 9.2;

Defects Correction Period

the period commencing on the Adoption Date and:

(i) with respect to defects relating to permanent reinstatement of the highway, expiring on the third anniversary of the Final Adoption Date5);

(ii) with respect to all other defects, expiring on the first anniversary of the Final Adoption Date;

Design Standards(TBC)

Parties/Consultees still to agree/list those design criteria which are applied;

Developer Contestable Works

Those parts of the Contestable Works as set out in Schedule 1 (Connection Specification) which are the responsibility of the Developer.

Development the Site on which a development will be carried out by the Developer on which there are or will be buildings which require connection with, and/or modification of, existing Water Mains in accordance with the Plan in Schedule 1 (Connection Specification);

Encumbrance any charge, lien, hire purchase agreement, option, conditional sale or credit sale agreement or any other interest or right of any other person;

End User Customer the final owner or occupier of Premises which, in accordance with to section 51A (9) of the WIA, receives a supply of water from the Company. For the purposes of this agreement, it does not include the Developer or SLP;

Final Adoption Date means:

(a) where the Contestable Works are Adopted as a whole, the Adoption Date; or

(b) where the Contestable Works are Adopted

5 This 3 year period simply backs off the 3 yr liability period which the Company assumes under NRSWAAdoption Agreement (Consultation Version 1) 2.10.18

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as Sections, the date on which the last Section is Adopted;

Force Majeure any act, event or circumstances beyond the control of a Party including those which arises from or are attributable to: (a) a Network Emergency; (b) fire, flood, explosion, earthquake, storm or other natural disaster; (c) civil commotion, hostilities (whether war is declared or not), sabotage, terrorist attack, chemical, biological or nuclear contamination;(d) compliance with any change in Applicable Law;

Good Industry Practice

the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor engaged in the same type of undertaking under the same or similar circumstances;

Income Offset in the context of this water mains Adoption Agreement means a sum of money offset against the charges that would otherwise be applied for the provision of a Water Main in recognition of revenue likely to be received by the relevant undertaker in future years for the provision of supplies of water to Premises connected to the new Water Main;

Insolvency Event a Party ceasing to trade or having a receiver, administrative receiver, administrator, trustee or manager appointed over the whole or any substantial part of its assets or undertaking, or becoming insolvent or going into liquidation (unless such liquidation is for the purposes of a solvent reconstruction or amalgamation), or making any arrangement or composition with any class or all of its creditors generally or otherwise being unable to meet its debts as they fall due or taking or suffering any similar action in consequence of debt;

IPR’s copyright, patent, trademark, service marks, design rights, registered designs, sui generis rights, know-how, confidential information, trade or business names or other similar rights together with applications for any of the foregoing;

Land Rights rights in, under or over land for the construction, installation, operation, repair, maintenance, renewal or use of the Contestable Works and/or the Company’s Works;


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Land Rights Criteria6

the criteria issued by the Company from time to time providing the Company’s requirements for Land Rights;

Network the Company’s water supply assets comprising:

(i) any reservoirs and other places of water storage and any treatment works developed or maintained by the Company for the purpose of compliance with its duty under section 37 of the Act;

(ii) any water mains and other pipes which it is the Company’s duty to develop and maintain by virtue of section 37 of the Water Industry Act 1991;

(iii) any pipes of the Company which are used for the purposes of supplying water outside the Water Undertaker’s area pursuant to section 66A(8) of the Water Industry Act 1991;

(iv) those assets marked on a map of mains;Network Emergency

in this context refers to:(i) the Security and Emergency Measures

(Water and Sewerage Undertakers) Direction 1998 (“SEMD”);

(ii) the Security and Emergency Measures (Water Undertakers) Direction 2006;

(iii) advice and guidance issued under the provisions of section 208 of the Water Industry Act 1991 and/or the Civil Contingencies Act 2004 or a national security event; and

(iv)unplanned events and incidents to the Network requiring a diversion of Company resources including, potential drinking water quality incidents, pollution incidents, flooding, droughts and burst mains;

Network Reinforcement

Refers to work to provide or modify such other Water Mains and such tanks, service reservoirs and pumping stations, as is necessary to service the Development or a duty owed by the Company under the Water Industry Act 1991;

NRSWA has the meaning given in the definition of Street Works Legislation;

Ofwat The Water Services Regulation Authority; Plan Plan number [insert the drawing number

showing developer land, adjoining land, 6 See note 4 aboveAdoption Agreement (Consultation Version 1) 2.10.18

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adopted land etc], annexed hereto, showing the Site, the Adjoining Land and the layout of the Contestable Works;

Point of Connection the point (or points) of connection to the Network at which a supply of water can flow between the Contestable Works and the Network as set out in Schedule 1 (Connection Specification) of this Agreement;

Premises has the meaning ascribed to that term by Section 17(c) of the WIA 1991 (as amended);

Procedures those procedures contained within [Appendix xx] of the Water Sector Guidance setting out the processes, steps and measures in relation to the services provided by each Party to this Agreement;

Programme the programme of works for Water Mains and associated infrastructure Service Pipes found at Schedule 2 and provided by the SLP to the Company for indicative purposes in accordance with clause (6) of this Agreement;

Schedule means reference to this Agreement includes the Schedules;

Section any part of the Contestable Works identified as such in Schedule 2 (The Programme) and in respect of which a Declaration of Vesting is to be issued;

Service Pipe means so much of a pipe which is, or is to be, connected with a water main for supplying water from that main to any Premises as:

(a) is or is to be subject to water pressure from that main; or

(b) would be so subject but for the closing of some valve, and includes part of any service pipe

Site the lands and other places at, on, under, over or through which the Contestable Works are to be constructed or installed or work is to be carried out, as identified in this Agreement;

SLP a person other than the Company who is appropriately accredited to undertake the Contestable Works in relation to the provision of a Connection to the Network;

SLP Contestable Works

Those parts of the Contestable Works as set out in Schedule 1 (Connection Specification) which are the responsibility of the SLP;

SLP Design a numbered design for the Contestable Works which has been p r o d u c e d b y t h e S L P ( o r i t s a p p r o p r i a t e l y a c c r e d i t e d s u b c o n t r a c t o r ) a n d submitted to the


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Company for acceptance. For clarity, the SLP remains responsible for all risk in SLP Design irrespective of approval or acceptance by the Company;

StandardStatutory Consents all consents, licences, permissions and

approval of any kind required under any statute or subordinate legislation including planning permission, building regulation approval and Licences under Street Works Legislation;

Street Works Legislation

New Roads and Street Works Act 1991 (“NRSWA”), Traffic Management Act 2004 and any other Act governing the carrying out of Street Works in a Street. (“Street”, “Street Authority” and “Street Works” shall be defined accordingly);

TestingVests or Vesting conferring ownership of the relevant assets on

the Company;Water Fittings Regulations

The Water Supply (Water Fittings) Regulations 1999 or any other regulations made by the Secretary of State in accordance with section 74 of the Act;

Water Main means any pipe, not being a pipe for the time being vested in a person other than the Company, which is used or to be used by the Company or licensed water supplier for the purpose of making a general supply of water available to customers or potential customers of the Company or water supply licensee, as distinct from for the purpose of providing a supply to particular customers. This definition includes tunnels or conduits which serve as a pipe and any accessories for the pipe;

Water Sector Guidance

The document (as amended from time to time) approved by Ofwat under paragraph 3.2.4 of the Code in respect of the processes to be followed by the Parties from the Point of Connection application to the signing of the Water Adoption Agreement;

WIRS the Water Industry Registration Scheme operated by Lloyds Register EMEA on behalf of Water UK and its members, which certifies the competence of companies undertaking self-lay works or such other scheme as replaces it from time to time;


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1.2 This Agreement as defined under Section 51A of the Act, sets out the entire agreement and understanding between the Parties in relation to the Adoption of the Contestable Works7.

1.2 In the event of any conflict or ambiguity, the general conditions and schedules to this Adoption Agreement shall prevail over the Water Sector Guidance.

1.3 If no details are shown for any of the Parties (other than the Company, Developer and SLP who are mandatory) it shall be assumed there is no such Party.

1.4 If more than one person is named as one of the Parties to this Agreement, then any covenants, agreements, liabilities or statements made by that Party shall be deemed to be made by those persons jointly and severally.

1.5 References to gender shall include either gender or a corporate identity and the singular shall include the plural.

1.6 References to an Act of Parliament include any statutory modification or re-enactment thereof for the time being in force and all regulations, orders and codes of practice made under that Act of Parliament and any modification or replacement thereof.

1.7 The Interpretation Act 1978 shall apply for the purposes of interpretation of this Agreement as it applies to the interpretation of an Act of Parliament.

2 COMMENCEMENT & DURATION

2.1 This Agreement begins on the date it is signed by the last Party to it.

2.2 Unless terminated earlier in accordance with [clause Termination], this Agreement shall continue until the last of the Contestable Assets has been Adopted (and a Declaration of Vesting has been issued) in accordance with the Plan in Schedule 1 (Connection Specification).

3 DESIGN OF THE CONTESTABLE WORKS

3.1 The Contestable Works shall be constructed in accordance with the applicable Company Design or SLP Design and the Connection Specification in Schedule 1.

7 Please note again that the current drafting makes the Procedures section of the Water Sector Guidance part of this legal contract. Adoption Agreement (Consultation Version 1) 2.10.18

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3.2 The Company may from time to time, by notice in writing, request the SLP to undertake works or to modify the design of the Contestable Works in order to achieve a Network Enhancement in accordance with the Procedures. Upon receiving any such notice, the SLP shall provide a reasonable price for doing (“Quotation”) so or state reasonable grounds for declining the request, such reply not to be unreasonably delayed. The SLP shall, upon acceptance in writing of the Quotation by the Company, make and implement the requested modification to the Contestable Works on the basis set out in the Quotation.

4 WARRANTIES

4.1 Each Party warrants to the other Party that:

(a) it has capacity and authority to enter into this Agreement; and(b) the persons entering into this Agreement on its behalf are duly

authorised to do so; and(c) that the Parties shall comply with all Applicable Law in force from

time to time.

4.2 The Parties further undertake and warrant that they will construct, install and commission the Contestable Works on the terms set out in this Agreement and in accordance with:

a. Good Industry Practice;b. the Connection Specification in Schedule 1; c. Company Works in Schedule 3;d. the applicable Statutory Consents; e. any applicable Design Standards.8

4.3 Pursuant to its Accreditation requirements, the SLP shall produce and maintain adequate procedures and records with respect to the laying of water mains and/or services in accordance with Applicable Law. Such procedures and records shall be provided to the Company on reasonable request.

5. LAND RIGHTS, STATUTORY CONSENTS AND ACCESS9

5.1 Where required by the Land Rights Criteria, the Developer and/or SLP shall, at its cost, apply for, negotiate and seek to obtain Land Rights in favour of the Company in respect of the Contestable Works to be Adopted. Such Land Rights shall be agreed prior to (and as a condition of) Connection.

8 Consultees may wish to think about how best to accommodate different approaches between companies in respect of design and materials.9 Consultees to discuss and assure themselves which land rights Company’s will reasonably require.Adoption Agreement (Consultation Version 1) 2.10.18

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5.2 The obligations on the Company to carry out the Company’s Works and/or to Adopt the Contestable Works shall be conditional upon all required Land Rights and/or Statutory Consents being obtained. Where the Developer or SLP is unable to obtain any Land Right, the Company may rely on its statutory powers to obtain that Land Right under the Act. The Developer and/or SLP shall pay the Company’s reasonable costs (including any professional fees and disbursements) incurred in obtaining the same. For the avoidance of doubt, this clause shall survive expiry or earlier termination of this Agreement.

5.3 Where any part of the Contestable Works or the Company’s Works are within land under the control of the Developer, the obligations on the Company to undertake the Company’s Works and/or to Adopt the Contestable Works shall be conditional on the Developer entering into agreements with the Company for any Land Rights, if so required, for the Contestable Works and the Company’s Works, at no cost to the Company. In the event that the Developer does not enter into such agreements on such terms, the Company shall be entitled to terminate this Agreement in whole or in part10.

5.4 Where the Contestable Works require Statutory Consents, the SLP shall apply for and obtain the same, and shall comply with all relevant legislative requirements. Where any Statutory Consent obtained would not be transferrable to the Company, or where the SLP does not have the legal authority or is otherwise unable to obtain the same, the SLP shall notify the Company and shall provide reasonable assistance to the Company, in seeking to obtain the said Statutory Consents. The SLP shall reimburse the Company’s reasonable costs incurred (including reasonable professional fees and disbursements) in accordance with this clause 5.4.

5.5 Where the need for Land Rights and/or Statutory Consents arises solely as a result of a requirement of the Company to achieve a Network Enhancement, the Company shall be responsible for procuring such Land Rights and/or Statutory Consents, at the Company’s cost.

5.6 The Developer agrees, and the SLP shall procure, that the Company shall have access to the Contestable Works and the Site, at all reasonable times for the purpose of inspecting the Contestable Works and all materials used or intended for use in the Contestable Works.

5.7 The Developer and/or SLP shall at its cost, provide all plant and equipment, (including safety equipment) signing, guarding, lighting and personnel whilst the Company is inspecting the Contestable Works.

6. PROGRAMME OF WORKS11

10 Consultees may wish to consider whether termination for this purpose is proportionate. If it is not, then alternative suggestions would be welcome. As set out in note 5, the legislation is not clear about whether vesting declarations can be made in respect of pipes in the land of non-consensual Parties.11 Please note that this section is subject to revision once the Procedures are confirmed.Adoption Agreement (Consultation Version 1) 2.10.18

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6.1 The Developer and/or SLP shall, [in accordance with the periods set out in the XXX OR within a reasonable period] of receipt of a written request, supply the Company with all technical information, diagrams and drawings relating to the design, construction, installation or commissioning of the Contestable Works as the Company may reasonably request from time to time.

6.2 The SLP shall, within [X Days] of signature of the date of this Agreement, provide to the Company with the Programme it intends to follow to construct the Contestable Works and shall thereafter promptly supply the Company with an updated version of the Programme in the event of any material change to the timing or sequence of the Contestable Works.

6.3 No later than [XX] Days before commencement of the Contestable Works and every [x] Days thereafter, the SLP shall provide to the Company a Works Schedule detailing the daily works to be undertaken within the following 10 Days. The Works Schedule shall detail the works to be undertaken on the Site in each half day period12.

6.4 The SLP shall provide to the Company a ‘Weekly Whereabouts Reports’ in accordance with Procedure [XX].

7. CDM – Construction (Design and Management) Regulations 2015 – and Damage13

7.1 The Parties acknowledge that in relation to the Contestable Works the Developer shall be “the Client” for the purposes of the Construction (Design and Management) Regulations 2015 ("CDM Regulations") and the Developer undertakes to confirm to the Company as soon as reasonably practicable, in writing, its agreement to be treated as the only Client (as defined by the CDM Regulations) for the purposes of the CDM Regulations.

7.2 At all times prior to the issue by the Company of the relevant Declaration of Vesting, the Developer and the SLP in accordance with shall be liable for the part of the Contestable Works or any Section of them as set out in the Connection Specification (whether on the Site or elsewhere) including works with associated excavation and reinstatement.

7.4 The Company shall have no authority to give any instructions to, or to supervise the Developer, the SLP, agent(s) or sub-contractor(s) of the SLP except that the Company may issue any instructions which it reasonably considers necessary on safety grounds in respect of the Contestable Assets or the Adopted Contestable Works.

12 It may be more appropriate for the process and timing around the exchange of information during the course of the works to be captured in the Procedures section of the Water Sector Guidance however, the Consultees are invited to express their views.13 This section of the Agreement is designed to set out primary responsibility to the water company: the Developer and the SLP have absolute freedom to contract between the two of them to defray or re-apportion liability between them by way, for example, of indemnitiesAdoption Agreement (Consultation Version 1) 2.10.18

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7.5 The Company may, upon reasonable grounds, require the Developer and/or SLP by prior written notice to uncover or make openings in any part of the Contestable Works.

7.6 Subject to clause 7.7, the Company shall be liable for all costs incurred by the SLP in complying with any notice given under clause 7.5 above if inspection of the Contestable Works fails to reveal any material non-compliance with the requirements of this Agreement.

7.7 If a notice given under clause 7.6 above is to uncover works which the Company was unable to inspect due to the SLP failing to notify the Company of a change of Programme / Work Schedule, all costs shall be met by the SLP irrespective of any defects.

8. STREET WORKS (NRSWA)

8.1 In carrying out the Contestable Works in a highway maintainable or a highway which has been declared to be prospectively maintainable at the public expense, the SLP shall:

(a) obtain a Street Works licence in its own name from the street authority for the street;

(b) comply fully with the Street Works Legislation and make all payments due under the Street Works Legislation; and

(c) comply fully with the requirements of the Street Works Legislation regarding the supervision of the Contestable Works by a qualified supervisor and the presence on site of a trained operative to the extent that such provisions are for the time being in force.

9 ADOPTION AND DECLARATION OF VESTING14

9.1 Provided that the SLP has complied in all respects with the procedures set out in the Water Sector Guidance and with the terms of this Agreement, the Company shall [in accordance with paragraph [xx] of the Water Sector Guidance/ or within [xx] period of any Connection] issue a signed and dated Declaration of Vesting to the SLP.

9.2 Notwithstanding the above, the Company shall not be obliged to issue a Declaration of Vesting to the SLP unless and until:

(a) all necessary Land Rights have been granted in favour of the Company;

(b) all necessary Statutory Consents are vested with the Company;

14 This section is the crux of the agreement and consultees should consider carefully what triggers and/or pre-requisites are appropriate to the declaration vestingAdoption Agreement (Consultation Version 1) 2.10.18

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(c) the Company has received as-laid plans of the Contestable Assets to be adopted complete with any (associated equipment manuals, test and specialist associated maintenance equipment);

(d) the SLP confirm and warrant that all necessary Intellectual Property Rights have been acquired;

(e) the Developer warrants and confirms to the Company that the water fittings within all buildings served by the Contestable Assets comply fully with the Water Fittings Regulations;

(f) the SLP warrants and confirms that it has satisfied itself that the water fittings within all buildings served by the Contestable Assets comply, so far as it is reasonably able to ascertain, with the Water Fittings Regulations. The SLP shall provide the Company with a written statement, setting out the steps it has taken to assure itself of that compliance.

9.3 For the avoidance of doubt, any information that is required to be provided

to the Company under clause 9.2 above may be provided to the Company electronically.

9.4 The SLP and the Company shall in accordance with [INSERT cross reference to the relevant Procedure] agree the date on which the Contestable Assets are Connected.

9.5 The SLP shall in accordance with section (xx) of the Procedures, prior to Connection, supply to the Company evidence of all the items required under clause 9.2.

10 POST-ADOPTION

10.1 Following Adoption, the SLP, Developer and Company shall treat the Adopted Contestable Works or Adopted Section in all respects as the property of the Company and from that time as forming part of the Company’s Network and comply with all procedures and rules issued by the Company relating to work on or in the vicinity of the Network.

10.2 With respect to the Adopted Contestable Works or Adopted Section, the SLP shall, if requested to do so by the Company:

(a) assign to the Company any warranties that the SLP has obtained in respect to the Adopted Contestable Works or Adopted Assets15; and/or

(b) enforce any such warranties or other rights as the SLP may have in respect to the Adopted Contestable Works or Adopted Section at the SLP’s cost.

11 DEFECTS CORRECTION PERIOD15 i.e. where SLP has used a subcontractorAdoption Agreement (Consultation Version 1) 2.10.18

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11.1 During the Defects Correction Period, the Company may request that the SLP or Developer search for a defect, giving the reason for the request. Searching may include:

(a) uncovering, dismantling, re-covering and re-erecting Adopted Contestable Works;

(b) providing materials and samples for tests and inspections done by the Company;

11.2 Where any of the Company, the Developer or the SLP identify a defect in

accordance with clause 11.3 or any other matter which the notifying Party reasonably believes does not comply with this Agreement during the Defects Correction Period, it shall [within (2) days of becoming aware of the defect] give written notice specifying the nature of the defect to all Parties.

11.3 Subject to clause 11.4, the Parties agree and acknowledge that work on Adopted Contestable Assets may only be performed by the Company and that neither the SLP nor the Developer may correct any defects after the Declaration of Vesting has been issued.

11.4 Only on receipt of a written request from the Company, may the Developer or the SLP be permitted to fault repair or rectify defects relating to, or associated with, the Adopted Contestable Works. Where agreed by the Parties, the Developer and/or the SLP shall promptly and in consultation with the Company conduct all investigations and carry out any remedial works which the Company reasonably considers to be necessary. For the avoidance of doubt, any such remedial work shall be carried out by the Developer or SLP at no cost to the Company.

11.5 Where the Developer and/or the SLP has undertaken the remedial works in accordance with clause 11.4, the Defects Correction Period will re-start from the date of (re-connection of the Adopted Contestable Works) completion of such remedial work.

11.6 The Developer and/or the SLP shall, within (30) days’ of receipt of an invoice from the Company, reimburse all reasonable costs incurred by the Company in fault repair or rectification of defects relating to, or associated with, the Adopted Contestable Works during the Defects Correction Period.

11.7 A defect, which, for the avoidance of doubt, includes any defects in the original SLP Design (including any design assumptions) and installation (including locational defects) and any non-compliance with the Design Standards and Connection Specification, unless such defects are entirely the result of any act or omission by the Company.


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12. LIABILITIES & INDEMNITIES16

12.1 The Parties shall not be liable for any breach of this Agreement caused directly or indirectly by Force Majeure or by a Network Emergency.

12.2 Subject to clause 12.1 and except where this Agreement provides for an indemnity, no Party is liable to the other for any of the following losses or damages, whether direct or indirect, arising out of, or in connection with this Agreement:

(a) loss of actual or anticipated profits; or

(b) loss of revenue; or

(c) loss of use; or

(d) loss of contract; or

(e) loss of business opportunity; or

(f) loss of anticipated savings; or

(g) loss of goodwill; or

(h) injury to reputation.

[12.2 Alternative Drafting – Subject to clause 12.1 and except where this Agreement provides for an indemnity, each Party’s liability under this Agreement for indirect or consequential loss is limited to the amount stated in [XXX]].

12.3 Subject to clause 12.4, for any one event, each Party’s liability for loss or damage to property is limited to [state the amount or a percentage reference].

12.4 Each Party’s liability to the Company for damage caused to the Adopted Contestable Assets, howsoever arising is limited to [COMPLETE pending Consultation and further discussion]

12.5 Each Party’s total liability for all matters arising under or in connection with this Agreement and on termination, other than the excluded matters, is limited to [£0.00] and applies in contract, tort, statute.

12.6 The excluded matters (i.e. where a form of compensation payment is due but is in addition to, or outside of this overall cap) are amounts payable by

16 Consultees are advised to consider and discuss the risks they are willing to assume and levels of compensation (indemnities) for them. As currently interpreted by the courts, the exclusion for ‘indirect and consequential’ loss’ is often ineffective, therefore the Parties should make sure express terms clarify what can and cannot be recovered.Adoption Agreement (Consultation Version 1) 2.10.18

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each of the Parties as stated in this Agreement for: [COMPLETE pending Consultation and further discussion]

12.7 The maximum liability of any Party to the other arising out of or in connection with this Agreement and on termination, whether arising in contract, tort, breach of statutory duty or otherwise, [shall not exceed the sum of [£XX] per incident or series of incidents arising out of any one event] OR [shall be limited to a sum equal to the lower of [X million pounds (£X,000,000)] and one hundred per cent (150%) of the Asset Value.17

12.8 Subject to clause 12.7 (liability cap) the Company indemnifies the

Developer and the SLP against:

(a) any loss or liability due to death or personal injury or damage to real or personal property, arising out of, or in connection with, or by reason of any act or omission on the part of the Company under or in connection with this Agreement.

12.9 Subject to clause 12.7 (liability cap) the SLP and/or the Developer indemnify the Company against:

(a) any loss or liability due to death or personal injury or damage (whether accidental or otherwise) to real property including the Adopted Contestable Assets or personal property arising out of or in connection with or by reason of any act or omission on the part of the either of the Developer and/or the SLP under or in connection with this Agreement;

(b) all amounts it has a statutory or Licence obligation to pay to consumers (or for the benefit of consumers) in the event, or as a result of any failure in the water supply caused by any defect or fault in the Contestable Works which is not solely attributable to the acts or omissions of the Company;

(c) losses from unavailable Meter details18

(d) any loss or liability arising from a failure by the SLP to obtain any Statutory Consents required for the construction, installation, operation, repair, maintenance, renewal or use of the Contestable Works.

12.7 Nothing in this Agreement shall operate to exclude or restrict a Party's liability for:

(a) death or personal injury;

17 The question of an upper limit to liability requires consideration and may be connected with the SLP’s ability to obtain insurance to that amount. Water companies’ framework contractors often have limits of £10 million. But the fact that there is a limit at all means that in some respect, water companies are SLP’s insurers of last resort.18 This head of claim requires some development.Adoption Agreement (Consultation Version 1) 2.10.18

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(b) fraud or other matter if and to the extent that, under the law of England, liability for it cannot be excluded, restricted or limited as against the other Party in the context of this Agreement.

12.8 The rights and remedies provided by this Agreement to the Parties are exclusive and not cumulative and exclude and are in place of all substantive (but not procedural) rights or remedies express or implied and provided by common law or statute in respect of the subject matter of this Agreement, including without limitation actions brought in negligence and/or nuisance. Accordingly, each of the Parties hereby waives to the fullest extent possible all such rights and remedies provided by common law or statute and releases the Party liable to the same extent from all duties, liabilities, responsibilities or obligations provided by common law or statute in respect of the matters dealt with in this Agreement and undertakes not to enforce any of the same except as expressly provided herein.

13 PAYMENTS

13.1 In consideration of the performance of their respective obligations under this Agreement, the Parties shall make any payments due in the amounts and at the intervals as follows:

(a) where any payments are due to be paid by the SLP to the Company, they shall be made in accordance with the requirements of Schedule 3 (Company Works and Charges). Charges for Company Works are [fixed for the first [12] months of this Agreement and thereafter are] subject to change and shall be payable at the rate set out in the Company’s published Developer Charging Arrangements prevailing thereafter;

(b) where any payments, including any Income Offset, are due to be paid by the Company to the Developer19, they shall be paid in accordance with the requirements of Schedule 4 (Payments).

13.2 Where appropriate the SLP shall pay to the Company the charges due in respect of the Contestable Works as set out in the Costs Schedule, which notwithstanding the fact that indicative (i.e. current at the date of the Agreement) charges are set out in Schedule 3, shall be payable at the rate (as set out in the Charges’ Scheme or as otherwise published by the Undertaker) prevailing at the date of the relevant part of the Contestable Works.

Unless stated otherwise, all payments are exclusive of VAT which shall be added at the prevailing rate.

19 The exact wording around payment will depend on what the final decision is regarding the Party to whom the Company is liable to make the payment (whether or not this is open for variation by the Developer and SLP for each agreement)Adoption Agreement (Consultation Version 1) 2.10.18

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13.3 If a Party fails to pay an undisputed amount by the due date, interest may be charged on the overdue amount from the due date up to the date of actual payment, before and after judgment at the rate of 2.5% above the Bank of England base rate. Interest shall accrue on a daily basis and be compounded quarterly.

13.4 The Parties shall pay all amounts due under this Adoption Agreement without set off or deduction, counterclaim or withholding.20

13.5 The SLP shall pay the Company's charges for any inspections of the Contestable Works undertaken by the Company. The Company's charges will be in accordance with their Developer Charging Arrangements.

13.6 [INSERT reference to payments made in respect of Network Enhancements]

14 FORCE MAJEURE

14.1 If any Party becomes unable to carry out its obligations under this Agreement due to a circumstance of Force Majeure, this Agreement shall remain in full force and effect except that all Parties’ obligations (other than obligations as to payment) shall be suspended without liability for a period equal to the circumstance of Force Majeure provided that:

(a) the suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure;

(b) no obligations of either Party that arose before the Force Majeure causing the suspension of performance are excused as a result of the Force Majeure; and

(c) the non-performing Party shall use all reasonable efforts to remedy its inability to perform.

15 INSOLVENCY

15.1 If an Insolvency Event occurs in respect of the SLP and/or the Developer before all of the Contestable Works have been Adopted, all future obligations under this Agreement on the Company shall cease and this Agreement will terminate21 save where the provisions of clause (24.2) Third Party Rights & Assignment apply.

16 INSURANCE

16.1 The SLP and Developer shall each, from the date of this Agreement until the expiry of the period of 3 years after the Adoption Date (or if more than

20 Consultees to consider their current practices and indicate whether or not this is practical.21 Although termination is an unfortunate consequence of SLP insolvency, there would not seem to be any easy alternative: suggestions from consultees are most welcome.Adoption Agreement (Consultation Version 1) 2.10.18

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one, the last Adoption Date), effect and maintain adequate insurances for the purposes of this Adoption Agreement to a minimum level of not less than £5,000,000 per event.

16.2 As and when reasonably required by the Company, the SLP shall produce for inspection satisfactory documentary evidence that the insurance effected by it pursuant to clause 16.1 is being properly maintained and confirm that payment has been made in respect of the immediately preceding premium due under it.

17 INTELLECTUAL PROPERTY

17.1 Insofar as the Intellectual Property Rights existing in respect of anything used in or required for the Contestable Works or their operation, repair, maintenance or replacement are the property of the Developer and/or the SLP, the Parties respectively grant to the Company a royalty-free, non-exclusive and irrevocable licence to use, reproduce, modify, adapt and translate any of the works, designs or inventions incorporated in anything used or required as aforesaid for all purposes relating to the Network.

17.2 The Developer and/or SLP warrant that all necessary Intellectual Property Rights will be acquired prior to Adoption.

17.3 The Developer and/or SLP shall indemnify the Company against all reasonable losses, costs and expenses suffered or incurred by the Company arising out of any claim by any third Party that the use by the Company of the licensed intellectual property infringes that third Party’s rights.

18 ANTI-BRIBERY

18.1 The SLP and Developer shall comply with all applicable anti-bribery and anti-corruption legislation (“Anti-Bribery Laws”) including the Bribery Act 2010 (the “Bribery Act”), as may be amended from time to time.

18.2 Throughout the term of this Agreement the SLP and Developer shall maintain and enforce their own policies and procedures relating to anti-bribery and anti-corruption (including adequate procedures for the purposes of the Bribery Act) to ensure compliance with all Anti-Bribery Laws and make such policies and procedures available on request. Whether the Parties have ‘adequate procedures’ shall be determined by reference to section 7(2) of the Bribery Act and any guidance issued under section 9 of the Bribery Act.

18.3 The SLP and Developer shall procure that all persons ‘associated’ with the them respectively (as defined by section 8 of the Bribery Act) including any subcontractors and suppliers, comply with the provisions of this clause 18.

18.4 Any breach of this clause 18 shall be deemed a material breach by the Developer and/or SLP of their obligations under this Agreement.


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19 WAIVER

19.1 No act or omission of any Party shall by itself amount to a waiver of any right or remedy unless expressly stated by that Party in writing nor shall any reasonable delay in exercising any right or remedy by itself constitute a waiver of that right or remedy.

19.2 No amendments to this Agreement shall have any effect whatsoever unless made in writing and signed on behalf of all Parties.

20 VARIATIONS

BASIC DRAFT PRINCIPLES FOR CONSULTATION DISCUSSION:

20.1 These Adoption Agreement Terms and Conditions can only be varied by Ofwat or the Code Panel. The Schedules to these Agreements can be varied by the Parties during the contract term.

20.2 Schedules to the Adoption Agreement (drawings/pricing/programme) can be varied by written agreement of the Parties, providing always that the processes and periods for compliance in the Guidance are adhered to.22

20.3 Possible deviation from the Procedures by mutual agreement of the Parties?

21 TERMINATION OF AGREEMENT23

21.1 This Agreement shall terminate upon the Contestable Works not being commenced24 within [1] one year of the date of this Agreement; or

21.2 The Company may terminate this Agreement by written notice to the SLP or Developers, if an Insolvency Event occurs in respect of either of the other Parties.

22 The Code requires Consultees to set out clear provisions for variation. These are still being developed. However, basic principles are set out here for the purpose of consultation.23 The Code requires this agreement to have processes for each of the Parties to terminate this agreement. Once the Parties have reached agreement on the circumstances in which they should have termination options, they must consider what the impact of terminating will be and how any losses or consequences should be dealt with.24 There are a number of options here, for example not yet available for testing, or the time the declaration of vesting is due under the agreement, substantially complete, entirely complete etc.

Further principles for discussion are: When would the SLP want to terminate the agreement? What would the likely consequences

be? If the SLP is in dispute with the Developer then it may wish to terminate, particularly if it has terminated its own agreement with the Developer. The SLP might also wish to terminate in cases of financial difficulty.

When might the Developer wish to terminate the agreement? As written, the agreement can transfer to a new owner if the original developer or SLP was in financial difficulty and has been taken over as an entity.

When would the water companies be able to terminate these agreements? Perhaps if construction work doesn’t start within XX period or the SLP loses its accreditation?


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21.3 The Company may terminate this Agreement by written notice to the SLP in if the SLP fails to make (any) Payment to the Company in accordance with clause 13.1.

21.4 The SLP may terminate this Agreement [INSERT WORDING PENDING DISCUSSION].

21.5 The Developer may terminate this Agreement [INSERT WORDING PENDING DISCUSSION]

22 SURVIVAL ON TERMINATION

22.1 Termination of this Agreement shall not affect any rights or obligations which may have accrued prior to and including the date of such termination and shall not affect any rights and obligations of the Parties hereunder which are expressed to survive termination of this Agreement. The following clauses shall survive expiry or earlier termination of this Agreement:

(a) the indemnities (b) Defect Correction(c) [Remaining clauses to be added once agreement complete.]

23 DISPUTES & REDRESS25

23.1 The Parties shall use good faith efforts to utilise the Company's Complaints Procedure to resolve any dispute, claim or proceeding arising out of or relating to this Agreement.

23.2 Should the dispute, claim or proceeding referred to in clause 22.1 be in respect of a claim by the SLP that the Company is not meeting its obligations under the Code, then:

25 This area requires development. Arbitration is unattractive but there is an argument that this is a construction contract as defined by the HGCRA and therefore could have its disputes provisions stripped and replaced by the arbitration clauses under that Act. There is also an argument that Ofwat has no authority to determine disputes on the terms of the Adoption Agreement. Section 51B of WIA says that a Party can appeal to Ofwat if an application to adopt has been refused prior to entering into the adoption agreement; or where the terms of the adoption offer are unacceptable or have not been given to applicant within 2 months. This suggests that a Party can appeal to Ofwat if it wishes for a determination on how a Company is behaving around granting terms prior to signing up to an actual agreement. It is not clear what role Ofwat plays once Parties have signed up. The following may be considered:

What should be the interplay between the contractual liability and redress under the Code?

Should companies’ complaints procedures be used, including escalation procedures, with mandatory injunction a last resort?

Can Ofwat be given a contractual role to determine disputes and would it wish to accept that role, or would some other referee be preferred, such as a Panel?


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(a) either Party may refer the matter to the Panel established under the Code for its opinion; and

(a) failing a resolution of such dispute, claim or proceeding either Party may refer the matter to Ofwat.

23.3 Clause 22.2 shall be without prejudice to any rights that the SLP may have to refer any allegations of non-compliance with competition law or licence obligations to Ofwat at any time.]

23.4 Failing resolution of the dispute, claim or proceeding under clause 22.1 or,

where applicable, clause 22.2, the matter shall be referred to the exclusive jurisdiction of the English Courts.

24 NOTICES

For the purposes of this clause 24:

“Delivery Hours” means 09:00 to 17:00 on a day which is not a Saturday or Sunday or Christmas Day, Good Friday or any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971;

“Business Day” the period of 08:00 to 18:00 hours on any day other than a Saturday or Sunday, or Christmas Day, Good Friday or any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.

24.1 All notices to be given to a Party under this Agreement shall be in writing and shall be marked for the attention of the person authorised in this Agreement.

24.2 Notices may be served:

(a) by hand (including courier); or

(b) sent by first class pre-paid post or guaranteed next day delivery post both with delivery confirmation or receipt (for example special delivery) to the address; or

(c) by email to the email address of the authorised person for the Party in this Agreement as notified by the Parties from time to time in accordance with this clause 24. Save that notice to terminate this Agreement may not be sent by email.

A Party may change the details recorded for it under this Agreement by written notice to the other Parties in accordance with this clause 24.1.

24.3 A notice shall be treated as having been received by a Party:


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(a) if delivered by hand (including courier) during Delivery Hours, when so delivered; and if delivered by hand outside Delivery Hours, at the next start of Delivery Hours;

(d) if sent by first class pre-paid post, guaranteed next day delivery, post with delivery confirmation or receipt (for example special delivery), on the later of actual receipt and 9.00 am on the Business Day after posting if posted on a Business Day, and on the later of actual receipt and 9.00 am on the second Business Day after posting if not posted on a Business Day; and

(e) if sent by e-mail, or any other electronic means during a Business Day it is received on that Business Day and if it is received outside of a Business Day it is received on the following Business Day.

In proving that a notice has been given it shall be conclusive evidence to demonstrate that delivery was made, or that the envelope containing the notice was properly addressed and posted (as the case may be).

25 THIRD PARTY RIGHTS & ASSIGNMENT

25.1 This Agreement is personal to the Parties and no one other than the End User Customer and the Parties to this Agreement shall have any right to enforce any of its terms.

25.2 No Party may assign or transfer the benefit or burden of this Agreement without the written consent of the other Parties, such consent not to be unreasonably withheld or delayed except in the event of the solvent reconstruction or amalgamation of any of the Parties, or on the appointment under section 6 of the Act of another person as the water undertaker for the area including the Site.

26 SUB-CONTRACTING

26.1 Both the SLP and Developer may sub-contract any part of the Contestable Works provided always that:

(i) only appropriately Accredited sub-contractors (as defined in this Agreement and in accordance with the Procedures, may be engaged in the performance of the Contestable Works. The SLP shall remain liable at all times for the acts and omissions of its sub-contractor and shall not be relieved of any of its obligations under this Agreement; and

(ii) the SLP and/or Developer inform the Company in writing, providing full details of the sub-contractor, prior to the commencement of work by that sub-contractor.

27 ENTIRE AGREEMENT


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27.1 This Agreement constitutes the entire agreement between the Parties and supersedes any previous agreement or arrangements between the Parties in respect of the subject matter of this Agreement.

28. COUNTERPARTS

28.1 This Agreement may be entered into in the form of two or more counterparts, each executed by one or more of the Parties but, taken together, executed by all and, provided that all the Parties so enter into this Agreement, each of the executed counterparts, when duly exchanged and delivered, will be deemed to be an original, but, taken together, they will constitute one instrument.

29. GOVERNING LAW

29.1 This Agreement shall be governed by and constructed in accordance with the Laws of England.

29.2 The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute which may arise out of, or in connection with this Agreement.

Signed by:

Name:

Role:

For and on behalf of: [Company]

Date of signature:

Signed by:

Name:

Role:

For and on behalf of: [SLP]

Date of signature:

[INSERT Further Signatures Here]


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SCHEDULE 1

CONNECTION SPECIFICATION


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SCHEDULE 2

THE PROGRAMME(indicative water main phasing)


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SCHEDULE 3

COMPANY WORKS & CHARGES

(the works to be carried out by the Company)


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SCHEDULE 4

PAYMENTS

V1 for consultation

Published 10 October 2018


BETWEEN · Web viewA schedule setting out which elements of the Contestable Works are to be...

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Transcript of BETWEEN · Web viewA schedule setting out which elements of the Contestable Works are to be...