SIXTH DRAFT
[GENERIC]
RAW WATER SUPPLY AND USE AGREEMENT
e n te red into b e twe en
DEPARTMENT OF WATER AFFAIRS AND FORESTRY
and
[-] WATER BOARD
FOR THE [-]SYSTEM
SIXTH DRAFT AFTER DISCUSSIONS WITH SAAWU ON 08/11/06
TABLE OF CONTENTS
PART A: INTRODUCTION ........................................................................................................... 1
1.
2.
INTERPRETATION........................................................................................................... 1
RECORDAL .................................................................................................................... 4
PART B: TERM AND CO-OPERATION .......................................................................................... 5
3.
CONTRACT TERM .......................................................................................................... 5
5.
CO-OPERATIVE GOVERNANCE STRUCTURE – [________] BULK RAW WATER FORUM .......... 6
4.
MUTUAL SUPPORT AND CO............................................................................................ 5
PART C: INTEGRATED ASPECTS ................................................................................................. 7
6.
THE SYSTEM .................................................................................................................. 7
8.
INTEGRATED WATER SUPPLY PLANNING ......................................................................... 7
7.
9.
10.
YIELD OF THE SYSTEM ................................................................................................... 7
INFORMATION MANAGEMENT ........................................................................................ 8
OTHER USERS ............................................................................................................ 9
PART D: WATER SUPPLY AND DEMAND ...................................................................................... 9
11.
WATER USE ................................................................................................................ 9
13.
RESTRICTIONS TO SUPPLY ........................................................................................ 10
12.
ASSURANCE OF SUPPLY ............................................................................................ 10
14.
INTERRUPTIONS TO SUPPLY ..................................................................................... 11
16.
MEASUREMENT OF WATER SUPPLY ........................................................................... 11
15.
17.
CONDITIONS OF SUPPLY .......................................................................................... 11
WATER DEMAND ...................................................................................................... 13
PART E: INFRASTRUCTURE ...................................................................................................... 13
18.
ACCESS ................................................................................................................... 13
20.
OPERATION AND MAINTENANCE .............................................................................. 14
19.
CONSTRUCTION AND DEVELOPMENT ....................................................................... 13
PART F: WATER USE CHARGES ................................................................................................. 14
21.
PAYING FOR WATER SUPPLY ..................................................................................... 14
22.
WATER USE CHARGES .............................................................................................. 15
24.
PAYMENT PROCEDURE ............................................................................................. 16
23.
WATER QUALITY ...................................................................................................... 16
PART G: LIABILITY, BREACH and FORCE MAJEURE ..................................................................... 17
25.
26.
EXCLUSION OF CONSEQUENTIAL LOSS FOR DIRECT DAMAGES .................................. 17
DISPUTES ................................................................................................................. 17
PART H: GENERAL ................................................................................................................... 17
27.
FAILURE TO REACH AGREEMENT .............................................................................. 17
29.
GOVERNING LAW ..................................................................................................... 18
28.
SEVERABILITY .......................................................................................................... 17
30.
SUCCESSION AND ASSIGNMENT ............................................................................... 18
32.
WHOLE AGREEMENT................................................................................................. 19
31.
33.
34.
DOMICILIUM CITANDI ET EXECUTANDI ..................................................................... 18
COSTS ..................................................................................................................... 19
COUNTERPARTS....................................................................................................... 20
ANNEXURES
Annexure [A] – Supply Areas of DWAF and of Water Board [Footprint]…………….…………………21
Annexure [B] – Annual Allocation for the Yield of the System .………………………………………..22
Annexure [C] – Integrated Water Supply System……………...…………………………………………...23
Annexure [D] – Long Term Demand Projections…………………………………………………………...24
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Annexure [E] - Water Use Charges……………………………………………………………………………..25
Annexure [F1] – The User’s Existing Water Use Authorisations …………………………………………26
Annexure [F2] – The User’s Existing Lawful Water Use…..….…………………………………………….27
Annexure [G] – Assurance of Water Supply for the User…………………………………………………..27
Annexure [H] – Quality of Raw Water…..………………………………………………………………………28
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PART A: INTRODUCTION
1.
INTERPRETATION
1.1 Where any expression is defined in the National Water Act No. 36 of 1998, unless the
context shows that another meaning is intended, it shall have a similar meaning. In this
Contract the singular includes the plural and vice versa, and the following expressions
bear the meanings assigned to them below:
1.1.1
“assurance of supply” means the probability, expressed as a percentage,
that a water user will obtain its water requirements or a portion thereof
without water restrictions;
1.1.2
“contract” means this agreement, and includes the annexures to this
agreement;
1.1.3
“Co-operative Governance Structure” means the formal structure through
which DWAF shall consult and collaborate with the USER, regarding the
implementation of this agreement, being the Bulk Raw Water Forum as
more fully set out in Clause 5;
1.1.4
“CPI-X” means the weighted average of the Consumer Price Index (Headline
inflation) excluding mortgage interest rates for metropolitan and other
urban areas as published by the Statistics South Africa from time to time;
1.1.5
“DWAF” means the national Department of Water Affairs and Forestry of the
Government of the Republic of South Africa;
1.1.6
“Ecological
Water
Requirements”
or
“EWR”
means
the
water
flow
requirements in a river reach that should be maintained to comply with the
ecological reserve, as defined in Part 3 of the National Water Act [previously
referred to as the Instream Flow Requirement] ;
1.1.7
“effective date” means the date of signature of the Contract or [-],
whichever is the sooner;
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1.1.8
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“force majeure" means any relevant event, occurrence, circumstance or
condition (including viz major, causus fortuitus or act of state) beyond the
control of the parties which could not have been reasonably foreseen when
the Contract was entered into and which, despite the exercise of diligent
efforts, could not have been prevented, limited or minimized and which
results in either of the parties not being able to fulfill its duties and
obligations in terms of the Contract, excluding drought;
1.1.9
“government water work” means government waterwork as defined in the
National Water Act;
1.1.10 “Integrated Water Resource Management” or “IWRM” means a process that
promotes the coordinated development and management of water, land
and related resources in order to maximise the resultant economic and
social
welfare
in
an
equitable
manner
without
compromising
the
sustainability of vital ecosystems to minimise impact on the environment;
1.1.11 "Minister" means the Minister of Water Affairs and Forestry of the national
government of the Republic of South Africa;
1.1.12 "MFMA” means the Local Government: Municipal Finance Management Act
No. 56 of 2003;
1.1.13 “National Water Act" means the National Water Act, No. 36 of 1998;
1.1.14 "parties" means DWAF and the USER;
1.1.15 “Planning Model” means a model as contemplated in section 13.2 with the
purpose to analytically quantify the capability of dynamic changing water
resource
systems,
determine
operating
rules
and
schedule
the
implementation of development options using network systems and a
practical allocation strategy;
1.1.16 "Pricing Strategy" means the Pricing Strategy for Raw Water Use Charges
established in terms of section 56(1) of the National Water Act by the
Minister acting in concurrence with the Minister of Finance, published in
Government Gazette No. 1353 dated 12 November 1999, as may be
amended or replaced;
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1.1.17 “resource strategy” means the National Water Resource Strategy, First
Edition, September 2004 compiled in accordance with section 5(1) of the
National Water Act published in Government Gazette No. 27199 dated 28
January 2005, as may be amended or replaced;
1.1.18 "responsible authority" means the Minister or a Catchment Management
Agency, as the case may be, as defined in section 1 of the National Water
Act;
1.1.19 “the System” is a collection of government water schemes plus the water
resources of the catchments that feed the government water schemes;
1.1.20 “third party user” means a user of water from the System other than the
User;
1.1.21 “USER” means [-] Water Board;
1.1.22 “user sectors" means the water user sectors referred to in the Pricing
Strategy;
1.1.23 “water” means raw water extracted or supplied from the System in terms of
any authorisation;
1.1.24 “Water Demand Management means the implementation of strategies which
manage water usage from a raw water abstraction point through the
treatment process, bulk distribution and reticulation to the end consumer
in order to influence demand and promote the efficient, effective and
sustainable utilisation of water as a scarce resource;
1.1.25 “water requirements” means the annual average water use schedule for
water users listed in Table B1 in Annexure B: Annual Allocation for the Yield
of the System;
1.1.26 " water use charges” means a charge imposed in terms of Part 1 of Chapter
5 of the National Water Act and in accordance with the Pricing Strategy;
1.1.27 “water use efficiency” means the optimal utilisation of available water using
acceptable best practices and benchmarks as measure;
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1.1.28 “Water Services Act" means the Water Services Act, No. 108 of 1997; and
1.1.29 "yield" means the maximum annual abstraction from the System at a %
assurance of water supply after provision for the environmental water
requirements [EWR].
1.2 Any reference to an enactment is to that enactment as at the date of signature hereof and
as amended or re-enacted from time to time.
1.3 If any provision in a definition is a substantive provision conferring rights or imposing
obligations on any party, notwithstanding that it is only in the definition clause, effect
shall be given to it as if it were a substantive provision in the body of the Contract.
1.4 When any number of days is prescribed in this Contract, the number days shall be
reckoned exclusively of the first and inclusively of the last day unless the last day falls on
a Saturday, Sunday or public holiday, in which case the last day shall be the next
succeeding day which is not a Saturday, Sunday or public holiday.
1.5 Where figures are referred to in numerals and in words, if there is any conflict between
the two, the words shall prevail.
Expressions defined in this Contract shall bear the same meanings in schedules or
annexures to this Contract which do not themselves contain their own definitions.
1.6 Where any term is defined within the context of any particular clause in this Contract, the
term so defined, unless it is clear from the clause in question that the term so defined
has limited application to the relevant clause, shall bear the meaning ascribed to it for all
purposes in terms of this Contract, notwithstanding that that term has not been defined
in this interpretation clause.
1.7 In the event of any conflict between the provisions of this Contract (excluding the
annexures), and the provisions of any of the annexures, the provisions of the Contract
shall prevail.
2.
RECORDAL
2.1 The supply areas of DWAF and the [____] Water Board are set out in Annexure [A].
2.2 The System is an integrated water supply system as defined in clause 1.1.19 and as
described in more detail in Annexure [C].
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2.3 DWAF is the national government department responsible to the Minister for ensuring
that Government Water Works are constructed, operated and maintained in such a
manner as to supply raw water for use.
2.4 In the Pricing Strategy effect is given to the National Water Act approach that at least
the full financial cost of supplying water should be recovered from water users.
2.5 DWAF and the USER wish to enter into an agreement in respect of the supply of water
by DWAF to the USER from the System, and in respect of the imposition of water use
charges on the USER in relation to the use of water from the System.
PART B: TERM AND CO-OPERATION
3.
CONTRACT TERM
3.1 This Contract shall come into effect on the Effective date and shall endure until:
(a) the parties negotiate a replacement contract; or
(b) the parties reasonably terminate the Contract by agreement.
3.2 If any authorisation required by the User, expires, the contract provisions in respect
of such expired authorisation will be renegotiated by the parties.
4.
MUTUAL SUPPORT AND CO-OPERATION
4.1 The parties undertake at all times to do all such things, perform all such actions and
take all such steps as may be open to them and necessary or incidental to the putting
into effect or maintenance of the terms, conditions and import of this Contract.
4.2 The parties shall at all times co-operate with each other to facilitate the prompt and
successful completion of their obligations in terms of this contract.
4.3 Because of the integrated nature of the System, the parties acknowledge the need to
interact in an ongoing consultative and collaborative manner, through Governance
Structures and in compliance with this Contract and in line with the principle of cooperative government set out in:
4.3.1
Chapter 3 of the Constitution of the Republic of South Africa, Act No. 108 of
1996; and
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4.3.2
5.
5.
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the Intergovernmental Relations Framework Act No. 13 of 2005.
CO-OPERATIVE GOVERNANCE STRUCTURE – [NAME] BULK RAW WATER FORUM
5.1 In terms of this agreement a co-operative governance structure is established known as
the [__________] Bulk Raw Water Forum.
5.2 The objective of the Forum is to facilitate the implementation of the contract and to
ensure that there is continual sharing of information between the parties.
5.3 The Forum shall comprise:5.3.1
a number of representatives of [
] Water comprising at least one [1] Board
Member and one [1] senior official; and
5.3.2
a number of representatives of DWAF.
5.4 The functions of the Forum shall inter alia be:5.4.1
to co-ordinate, facilitate and mediate the implementation and execution of this
contract;
5.4.2
to collate and disseminate information;
5.4.3
to promote water conservation and water demand management; and
5.4.4
to do planning in a consultative and transparant manner as contemplated in
clause 8.3;
5.4.5
to consult on possible significant changes in the water use and allocation as
contemplated in clause 11.2;
5.4.6
to consult on possible water restrictions as contemplated in clause 13;
5.4.7
to consult on possible interruptions of water supply as contemplated in clause 14;
5.4.8
to consult on augmentation of the system as contemplated in clause 19(1);
5.4.9
to consult on the water quality objectives contemplated in clause 23(1); and
5.4.10 to perform such other functions as the members might deem necessary for the
implementation of this contract.
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5.5 The representatives of the Forum undertake to make themselves available to each other
and facilitate communication between the parties.
They will agree on the terms of
reference between themselves at their first meeting, which shall be called by DWAF
within one [1] month of the effective date.
5.6 DWAF shall be responsible for convening the initial meeting of the Forum.
5.7 The quarterly meetings shall be convened by the [___] Water Board in consultation with
the chairperson of the Forum.
PART C: INTEGRATED ASPECTS
6.
THE SYSTEM
6.1
6.2
On the Effective date, the System or, if it is more than one System, the Systems, is
as described in Annexure [C].
The parties acknowledge that the water resources of the System(s) should be
operated, utilised and managed with the objective of benefiting all water users.
7.
YIELD OF THE SYSTEM
7.1 DWAF shall at any such time as may be reasonably necessary, determine the yield of the
System by updating the hydrological records and shall use appropriate techniques or an
agreed model in making such a determination.
7.2 In the event that the available yield of the System is over-allocated, at any time, DWAF
shall be obliged to consult the USER, and each user sector in determining appropriate
measures to redress such over-allocation.
7.3 It is accepted by the Parties that the water requirements of the USER presented in
Annexure [D]: Long Term Demand Projections, shall be used as a basis for the
planning, operation and management of the System.
7.4 The Reserve of the System is determined to meet the existing needs of existing users. If
in the future, the demand from the Ecological Reserve is increased, DWAF shall manage
it in such a way as to reasonably mitigate the economic consequences on the USER and
the user sectors. Implementation of augmentation of the Ecological Reserve will be
undertaken in a consultative manner.
8.
INTEGRATED WATER SUPPLY PLANNING
8.1
The parties recognise the need for, and support, integrated water supply planning.
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8.2
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In accordance with sections 5-7 of the National Water Act, the Minister, is
responsible for compiling total demand scenarios of all users from the System. The
appropriate planning model and the National Water Resource Strategy shall serve
as the basis for all short and long term water resource planning.
8.3
DWAF shall undertake its planning in a consultative and transparent manner,
through the Co-operative Governance Structure.
8.4
The USER has provided its 20 year long term demand projections for extractions
from the System as set out in Annexure [D].
8.5
The USER shall provide DWAF with, as accurate as possible, annual forecasts of its
water use, and its assumptions and calculations underlying the scenarios, including
projections as to the impact of demand management together with its business
plan prepared, adopted and submitted in terms of section 40 of the Water Services
Act during June each year.
8.6
Every November the USER must provide DWAF with a reconciliation of actual water
use and the reasons for deviations between the forecast in the previous business
plans and actual water use.
9.
INFORMATION MANAGEMENT
9.1 The Parties shall record and maintain a complete record of compliance to its contractual
duties and obligations by the use of appropriate information systems and information
technology and suitable hard copy storage.
9.2 Each party shall have the reasonable right to use and access all plans, manuals,
databases, inventories, surveys, financial and other records and analyses compiled by
the other party in accordance with this Contract or in the other party’s possession both
during the Contract Term and for at least 5 (five) years after termination of this
Contract.
9.3 The parties will in the execution of its functions in terms of the agreement adhere to
policies on information management and information technology as referred to in
section 7(3) of the State Information Technology Agency Act No. 88 of 1998.
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10.
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OTHER USERS
10.1
DWAF shall enter into supply agreements of a similar nature to this one with all
users of more than [xyz] million cubic meters of water per annum from the System.
All other users shall be controlled through permit and license conditions.
10.2
Without limiting the generality of the aforegoing, the supply agreements with other
users shall –
10.2.1 state the applicable assurances of supply, specifically agreed with a user, as
well as the operating rules for water restrictions;
10.2.2 require users to supply DWAF, at appropriate intervals, with historical,
current and projected long-term water demand curves;
10.2.3 contain commitments by users to actively promote and implement
measures to ensure that water is used efficiently and that wastage is
minimised;
10.2.4 provide for revisions of the projections referred to in clause 10.2.1, and
should set out the basis of determining water use charges, as set out in
Annexure [E]; and
10.2.5 include mechanisms for users to be consulted in respect of allocations for
additional water use, or additional water required to guarantee any
increased level of supply assurance.
10.3 DWAF shall, when considering licences for other users, inter alia also take into
account the factors set out in clauses 10.2.1 to 10.2.5.
PART D: WATER SUPPLY AND DEMAND
11.
WATER USE
11.1
The USER’s existing water use and existing lawful water use at the effective date and
the conditions pertaining to the use of water by the USER are respectively set out in
Annexure [F1], the User’s Existing Water Use and Annexure [F]: the User’s Existing
Lawful Water Use.
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11.2
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It is recorded that at the effective date DWAF has not yet finalised the process of
verifying the existing lawful water use in the System and therefore there is no
verified
allocation
schedule
available
for
water
balance
and
augmentation
requirement calculations. DWAF shall complete the verification process in terms of
section 35 if the National Water Act as soon as is reasonably possible and inform
and consult with water use sectors regarding significant changes in the water use
and allocation.
11.3
When DWAF or the responsible authority requires the USER to obtain a licence in
terms of the National Water Act, the USER shall apply for such licence, and will in
terms of the water licensing rules be entitled to object to the proposed allocations
schedules and to appeal against preliminary allocations, as provided for in the
National Water Act.
12.
ASSURANCE OF SUPPLY
12.1
The Pricing Strategy provides that the long term mean annual water use by user
sectors shall be taken into account in determining water use charges levied on users,
which will be based on assurance of supply.
12.2
The Parties agree that DWAF shall take into account each user sector's assurance of
supply when –
12.2.1 determining the yield of the System; and
12.2.2 determining the annual allocation of yield, as set out in clause 7 and
Annexure [B].
12.3
The parties agree that on the effective date the Assurance of Water Supply for the
USER is as set out in Annexure [G] .
12.4
Neither party shall do anything wilfully to negatively influence the assurance of
supply.
13.
RESTRICTIONS TO SUPPLY
13.1
DWAF may implement restrictions on the USER’s supply in the event of drought,
floods or any other circumstances reasonably necessitating such restriction or
limitation.
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13.2
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DWAF shall, on the basis of the Planning Model, endeavour to give the USER
reasonable notice of the likelihood of, and reasons for, water restrictions, before it is
imposed.
14.
INTERRUPTIONS TO SUPPLY
14.1
DWAF shall give the USER at least 3 (three) months notice of any interruption or
restriction scheduled for the purposes of maintaining the government water and
work. Where possible scheduled interruptions will be planned for the USER’s low
supply season. If either party is aware of any action or no action that will impact on
the supply of water to users, it shall immediately inform the other.
14.2
In cases of emergency interruptions or unscheduled interruptions, DWAF shall give
notice to the USER telephonically and by means of fax or email as soon as DWAF has
become aware of the need for such interruption.
14.3
The parties shall keep each other’s operational staff informed of the contact details
and phone, fax numbers and email addresses required to give such notices.
14.4
In addition to what is stated in clause 25, DWAF shall not be responsible or liable for
any loss or damage to property or injury to person or for the loss of production or
loss of income or profit resulting from an interruption, variation or deficiency in the
water supply or water quality or from excess or lack of pressure in DWAF’s system.
15.
CONDITIONS OF SUPPLY
DWAF shall supply the water in accordance with the conditions of the authorisations
granted to the USER set out in Annexure [F1]: the User’s Existing Water Use Authorisation.
16.
MEASUREMENT OF WATER SUPPLY
16.1
The supply of water to the USER shall be measured.
16.2
A mutually agreed procedure for all matters pertaining to metering shall be put in
place within 3 (three) months after the Effective date. This procedure may be
revised, from time to time, by the Parties, in writing, as the need arises. As a
minimum requirement, this procedure shall address, including but not limited to,
the following –
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16.2.1
metering points;
16.2.2
number of meters per delivery point;
16.2.3
accuracy of meter at delivery point;
16.2.4
water balance per scheme including unaccounted for water;
16.2.5
mechanism to calculate measurement in the event of breakdown;
16.2.6
time to repair;
16.2.7
joint reading date and procedure;
16.2.8
calibration of meters;
16.2.9
technical specifications of meters;
16.2.10
funding of meters.
The User shall install flow meters, at all delivery points, which comply with the
technical specifications as agreed upon in clause 7.1. The meters shall be kept in
good repair, working order and condition.
16.4
The USER shall be entitled, subject to the prior written notice to and approval by
DWAF, to install and maintain at its own expense its own water meters immediately
down stream of DWAF’s meters to verify DWAF’s readings of supply.
16.5
If a meter is found to be registering incorrectly, the party shall replace its meter.
16.6
Unless it can be proven to the contrary that a greater or lesser quantity of water
has been consumed, the quantity of water which shall be used for calculating the
water use charges from the date of the meter prior to its failure to register
correctly up to the time of its repair or replacement shall be calculated over
periods, both before and after the interruption period equal to the number of days
during which the interruption existed. By way of example, if the interruption period
is 10 (ten) days, then the average consumption will be calculated over a period of
10(ten) days before the interruption and 10 (ten) days after the interruption period.
16.7
In the case of a dispute regarding meter readings, the provisions of clause 26 shall
apply.
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17.
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WATER DEMAND MANAGEMENT
17.1
The USER shall use all reasonable endeavours to ensure that its water demand
management measures and any of its water demand policies adopted from time to
time, are implemented. The USER shall provide DWAF with its water demand
measures annually together with its business plan in terms of section 40 of the
Water Services Act.
17.2
DWAF shall monitor the USER’s compliance with its water demand measures.
17.3
The USER shall be responsible for actively promoting the efficient use of water by
any third party to which it sells water.
PART E: INFRASTRUCTURE
18.
ACCESS
DWAF and the USER and their authorised officers, employees and agents shall, on prior
notification, be entitled to reasonable access to any component of the System and any
works associated with the supply of water that the party may require to access in the
performance of its duties, which includes reading and checking of meters and taking of
water quality samples.
19.
CONSTRUCTION AND DEVELOPMENT
19.1
DWAF shall consult the USER, and all other users, through the Co-operative
Governance Structure before it embarks on any significant future augmentation of the
System.
19.2
Before deciding to implement any significant augmentation option to meet future
water demands from The System, DWAF shall undertake a comprehensive
assessment of all feasible supply and demand options. DWAF shall take into
consideration international best practice when considering options. The USER shall
provide all information and assistance to DWAF as may reasonably be required or
expected.
19.3
DWAF shall be entitled to collect water use charges for the construction and
development of the infrastructure of the System for which DWAF is responsible as
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more fully referred to in clause 22 and Annexure [E]: Water Use Charges.
19.4
No connection may be made by the USER to the DWAF works unless authorised by
DWAF and subject to such conditions as DWAF may impose.
19.5
DWAF shall not be liable for any loss or damage in the USER’s system as a result of
the USER connection to DWAF’s works.
20.
OPERATION AND MAINTENANCE
20.1
DWAF shall be responsible for the operation and maintenance of the infrastructure
of the System for which DWAF is responsible, except in cases where the operation and
maintenance of a System has been delegated by DWAF to the USER in terms of an
agency agreement.
20.2
DWAF shall operate and maintain the System according to best practice that is in an
integrated,
cost
effective,
consultative
and
efficient
manner,
taking
into
consideration all water users.
20.3
DWAF shall be entitled to collect water use charges for the operation and
maintenance of the infrastructure of the System for which DWAF is responsible (as
more fully referred to in clause 21, 22 and Annexure [E]: Water Use Charges).
20.4
The USER shall be responsible for the operation and maintenance of:
20.4.1 all its own works including those works required to abstract water at
abstraction points; and
20.4.2 the infrastructure of a System delegated to the USER by DWAF as
contemplated in Clause 20.1.
PART F: WATER USE CHARGES
21.
PAYING FOR WATER SUPPLY IN TERMS OF PRICING STRATEGY
Water use charges levied on the user for raw water supplied to it by DWAF, are set in terms
of the Pricing Strategy.
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22.
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WATER USE CHARGES
22.1
Provisions in respect of the levying of water use charges, which charges are imposed
on an annual basis, are contained in Annexure [E]: Water Use Charges.
22.2
Water Use Charges are based on estimated consumptive use and payable on actual
measured use.
Water Recourse Management Charges are based on registered
volume of use.
22.3
DWAF shall, before the end August of each year provide the USER with an estimate of
proposed water use charges for the following 3 (three) years in order to enable the
USER to prepare its operating budget and engage in long term planning.
22.4
DWAF shall notify the USER before the end of September of each year of the water
use charges to be imposed in DWAF's next financial year, as determined in terms of
the Pricing Strategy, to enable the USER to comply with sections 41 and 42 of the
MFMA in respect of bulk water provision to municipalities.
22.5
The USER shall be provided with an opportunity to comment on the proposed
charges prior to being finalised by DWAF.
22.6
The USER shall be entitled to query the amount of any water use charge imposed by
DWAF, if the amount of such water use charge appears to be unreasonable, taking
into account the principle of cost effectiveness and efficiency. The User is entitled to
request reasons for a decision.
22.7
For purposes of levying water use charges, the yield of the System will be used by
DWAF on an annual basis according to existing lawful water use or any future
licensing allocations, as the case may be, and such annual yield allocations will be
communicated to the USER in writing. These allocations will be deemed to form part
of Annexure [B]: Annual Allocation from the yield of the System.
22.8
The annual yield allocation referred to in clause 22.6, for the year 2006/2007, is set
out in Table [-] of Annexure [B]: Annual Allocation from the yield of the System.
22.9
In the event that DWAF implements any water resource development which is funded
off-budget, DWAF will enter into a written agreement with the USER and all other
users for the levying of any Water Use Charges in respect of any such development.
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23.
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WATER QUALITY
23.1
DWAF will endeavour to provide raw water to the User in line with the receiving water
quality objectives set out in Annexure [H]: Raw Water Quality.
23.2
Any compensation for the User in respect of water provided below the quality
referred to in clause 23.1 will be in terms of the “Waste discharge charge system”,
after it has been developed.
24.
PAYMENT PROCEDURE
24.1
DWAF will render an account to the USER on a monthly basis which account shall be
payable by the USER on the date specified on the account, which date shall not be
more than 30 (thirty) days from the date of the account.
24.2
Any delay in rendering an account will not relieve the USER of the obligation to pay
any amount payable.
24.3
In the event that a water use charge is not paid when it is due and payable, in terms
of the National Water Act, DWAF may –
24.3.1 on notice, suspend or withdraw a water use entitlement, provided that the
person has been directed to take specified steps to rectify the failure within
a specific period, in terms of section 54(3) of the National Water Act, and
the person has had an opportunity to make representations within a
reasonable period, in terms of section 54(4) of the National Water Act,
which period the parties agree shall not be less than 60 (sixty) days;
24.3.2 restrict or suspend the supply of water to the water user from the System,
or the authorisation to use water, until the charges, together with Interest
in respect of the default period, have been paid, provided that DWAF must
give the USER an opportunity to make representations within a reasonable
period on any proposed restriction or suspension in terms of section 59(4)
of the National Water Act, which period the parties agree shall not be less
than 60 (sixty) days; and
24.3.3 charge interest on the outstanding amount from the due date at the rate
prescribed from time to time in terms of section 2 of the Prescribed Rate of
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Interest Act No. 55 of 1975 as if it is a judgement debt.
PART G: LIABILITY, BREACH and FORCE MAJEURE
25.
EXCLUSION OF CONSEQUENTIAL LOSS FOR DIRECT DAMAGES
Under no circumstances whatsoever shall either Party be liable for any indirect, special or
consequential loss or damage of any kind whatsoever or howsoever caused (whether
arising under contract, delict or otherwise and whether the loss was actually foreseen or
reasonably foreseeable), sustained by the other party, including but not limited to any loss
of profits, loss of operation time, loss of information or loss of contracts.
26.
DISPUTES
26.1 In the first instance the Parties shall make every effort to settle a dispute in a spirit of
cooperative government.
The Parties undertake at all time to do all such things,
perform all such actions and take all such steps as may be open to them and
necessary or incidental to the putting into effect or maintenance of the terms,
conditions and import of this agreement.
26.2 Where the Parties are unable to settle a dispute between themselves, they agree to
follow the procedures set out in Chapter 4 of the Intergovernmental Relations
Framework Act, No 13 of 2005.
PART H: GENERAL
27.
FAILURE TO REACH AGREEMENT
Where it is specified in this Contract that certain matters are to be agreed between the
Parties, failure to reach agreement in respect of such matter will not affect the validity and
enforceability of the remaining provisions of this Contract.
28.
SEVERABILITY
Any provision in this Contract which is or may become illegal, invalid or unenforceable in
any jurisdiction affected by this Contract shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or un-enforceability and shall be treated pro non scripto and
severed from the balance of this Contract, without invalidating the remaining provisions of
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this Contract or affecting the validity or enforceability of such remaining provisions.
29.
GOVERNING LAW
The interpretation, implementation and termination of this Contract will be in accordance
with the laws of South Africa which shall, for all purposes of this Contract, be the governing
law of this Contract.
30.
SUCCESSION AND ASSIGNMENT
30.1 This Contract shall be binding on any successor in title of the DWAF and any
successor in title of the USER.
30.2 Should any functions relevant to this Contract be assigned by DWAF to a water
management institution in terms of the National Water Act or any other applicable
legislation, DWAF undertakes to incorporate the relevant provisions of this Contract
in any such assignment so as to bind such institution as a successor in title.
31.
DOMICILIUM CITANDI ET EXECUTANDI
31.1
The Parties choose as their domicilia citandi et executandi for all purposes under
this Contract, whether in respect of court process, notices or other documents or
communications of whatsoever nature (including the exercise of any option), the
following addresses –
The Department of Water Affairs & Forestry [DWAF]
Office of the Director-General: DWAF
185 Schoeman Street
PRETORIA
0001
Gauteng
Tel: [012] 336-7754
Fax:
Email:
Attention: Contact Person [Clause 14.3]
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USER: Name and Address of Water Board
Tel:
Fax No:
Email:
Attention: Contact Person [Clause 14.3]
31.2
Any notice or communication required or permitted to be given in terms of this
Contract shall be valid and effective only if in writing, but it shall be competent to
give notice by telefax.
31.3
Notwithstanding anything to the contrary herein contained a written notice or
communication actually received by a party shall be an adequate written notice or
communication to it notwithstanding that it was not sent to or delivered at its
chosen domicilium citandi et executandi.
32.
WHOLE AGREEMENT
32.1
This Contract including the annexures constitutes the whole agreement between
Parties relating to the subject matter hereof and supersedes all previous Contracts
or arrangements, whether oral or written, between the Parties relating to the subject
matter of this Contract.
32.2
No representations, warranties or other terms and conditions of whatever nature not
contained or recorded herein have been made or agreed to.
32.3
To the extent permissible by law no Party shall be bound by any express or implied
term, representation, warranty, promise or the like not recorded herein, whether it
induced the Contract or whether it was negligent or not.
33.
COSTS
Each party shall be liable for its own costs in respect of preparation, drafting and
negotiation of this Contract.
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34.
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COUNTERPARTS
This Contract, together with its annexures, may be executed in several counterparts, each
of which shall together constitute one and the same document.
SIGNED by the Parties and witnessed on the following dates and at the following places
respectively:
DATE
PLACE
WITNESSES
SIGNATURE
For: DEPARTMENT OF WATER
AFFAIRS AND FORESTRY
______________
________________
1. _______________
____________________
2. _______________
(who warrants that he is duly
authorised to conclude this Contract
on behalf of DWAF and to bind DWAF
to its terms)
DATE
PLACE
WITNESSES
SIGNATURE
For:
______________
_______________
1. _______________
[USER]
___________________
2. _______________
(who warrants that he is duly
authorised to conclude this Contract
on behalf of [-] and to bind [-] to its
terms)
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ANNEXURE [A]
[CLAUSE 2.1]
SUPPLY AREAS OF DWAF AND OF WATER BOARD [FOOTPRINT]
A.
DWAF – SUPPLY AREA
B.
WATER BOARD – SUPPLY AREA
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ANNEXURE [B]
[CLAUSES 12.2.2 & 22.7]
ANNUAL ALLOCATION FROM THE YIELD OF THE SYSTEM
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ANNEXURE [C]
[CLAUSES 2.1 & 6.1]
INTEGRATED WATER SUPPLY SYSTEM[S]
[A description of the System or, if it is more than one System, the Systems, should be set out in
this Annexure]
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ANNEXURE [D]
[CLAUSES 7.3 & 8.4]
LONG TERM DEMAND PROJECTIONS
[The long term demand projections to be used as a basis for planning].
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ANNEXURE [E]
[CLAUSES10.2.4, 19.3, 20.3 & 22.1]
WATER USE CHARGES
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ANNEXURE [F1]
[CLAUSE 11.1 & 15]
THE USER’S EXISTING WATER USE AUTHORISATIONS
[This sets out the existing water use authorisations before verification in terms of section 35]
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ANNEXURE [F2]
[CLAUSE 11.1]
THE USER’S EXISTING LAWFUL WATER USE
Note: This Annexure will only become Part of the Agreement after the Section 35 verifications
were done on the User’s entitlements.
Section 35 of Act No. 36 of 1998 provide:
“Verification of existing water uses
35. (1) The responsible authority may, in order to verify the lawfulness or extent of an existing water use, by written notice
require any person claiming an entitlement to that water use to apply for a verification of that use.
(2) A notice under subsection (1) must (a) have a suitable application form annexed to it;
(b) specify a date before which the application must be submitted;
(c) inform the person concerned that any entitlement to continue with the water use may lapse if an application is not made
on or before the specified date; and
(d) be delivered personally or sent by registered mail to the person concerned.
(3) A responsible authority (a) may require the applicant, at the applicant's expense, to obtain and provide it with other information, in addition to the
information contained in the application;
(b) may conduct its own investigation into the veracity and the lawfulness of the water use in question;
(c) may invite written comments from any person who has an interest in the matter; and
(d) must afford the applicant an opportunity to make representations on any aspect of the application.
(4) A responsible authority may determine the extent and lawfulness of a water use pursuant to an application under
this section, and such determination limits the extent of any existing lawful water use contemplated in section 32(1).
(5) No person who has been required to apply for verification under subsection (1) in respect of an existing lawful
water use may exercise that water use (a) after the closing date specified in the notice, if that person has not applied for verification; or
(b) after the verification application has been refused, if that person applied for verification.
(6) A responsible authority may, for good reason, condone a late application and charge a reasonable additional
fee for processing the late application”.
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ANNEXURE [G]
[CLAUSE 12.3]
ASSURANCE OF WATER SUPPLY FOR THE USER
[The categories of users are to be stated in this annexure]
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ANNEXURE [H]
[CLAUSE 23.1]
QUALITY OF RAW WATER
[The “resource water quality objectives” in respect of the various systems is to be set out in this
Annexure].
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