Standard Conditions of Contract for theVersion [0.9]
Design and Build ofNational Grid FacilitiesDate [10 July2012]
STANDARD CONDITIONS OF CONTRACT
FOR THE DESIGN AND BUILD OF
NATIONAL GRID FACILITIES
Contents
ClausePage
1.DEFINITIONS
2.ACCEPTANCE
3.THE COMPANY’S OBLIGATIONS
4.NATIONAL GRID’S OBLIGATIONS
5.THE COMPANY'S SYSTEM AND GAS PLANT
6.EXTENSIONS OF TIME
7.PAYMENT
8.LIABILITY AND INSURANCE
9.FORCE MAJEURE
10.TERMINATION
11.COMPENSATION EVENTS
12.NOTICES
13.CONFIDENTIALITY
14.INTELLECTUAL PROPERTY
15.DISPUTES PROCEDURE
16.ENTIRETY OF AGREEMENT
17.ASSIGNMENT
18.SUB-CONTRACTING
19.WARRANTY
20.OWNERSHIP, OPERATION AND MAINTENANCE
21.WAIVER AND AMENDMENTS
22.PUBLICITY
23.SURVIVAL
24.THIRD PARTY RIGHTS
25.SEVERABILITY
26.GOVERNING LAW
Annex 1 - Company Specific Obligations
Annex 2 - National Grid's Specific Obligations
Standard Conditions of Contract for theVersion [0.9]
Design and Build ofNational Grid FacilitiesDate [10 July2012]
1.DEFINITIONS
1.1.For the purposes of the Agreement, except as is otherwise expressly provided herein or unless the context otherwise requires, the terms defined in this Clause shall have the following meanings:-
“Acceleration” means acceleration of the Works to achieve Substantial Completion prior to the Date for Substantial Completion, as the case may be;
“Acceptance” has the meaning given in Clause 2.1;
“Adjudicator”means the person agreed between the Parties as such or, in the absence of such agreement, the person appointed as such by the President for the time being of the Institution of Civil Engineers;
“Affiliate” means any holding company or subsidiary of a Party or any company which is a subsidiary of any holding company of a Party and the expression “holding company” and “subsidiary” has the meaning ascribed by Section 1159 of the Companies Act 2006 (as amended);
“Agreement” means the Gas Construction Agreement as accepted by the Company (including the Schedules thereto), all of which shall be read as one document;
"Application" has the meaning given in the Gas Construction Agreement;
“Arbitrator” means the person agreed between the Parties as such or, in the absence of such agreement, the person appointed as such by the President for the time being of the Institution of Civil Engineers;
“Asset Owner” means the owner of all or any part of the Company Facilities as further referred to in Clause 8.3 of this Agreement;
“CV” means the calorific value of the gas measured under metric standard conditions and expressed in mega joules per cubic metre;
“Commissioning” means National Grid bringing the National Grid Facilities (to the isolation valve immediately prior to the Company’s System) up to a minimum pressure of 3 barg;
“Company” means the person or entity which enters in to the Agreement with National Grid, and its permitted successors and assigns;
"Company Facilities": means the Company's System and the Gas Plant;
“Company Provided Facilities” means those facilities (if any), whether of a temporary or permanent nature, which the Company is to provide to National Grid pursuant to the Agreement, as may be more particularly described in Annex 1 of these Standard Conditions of Contract;
“Company Specific Obligations” means the obligations set out in Annex 1 of these Standard Conditions of Contract;
“Company’s System” means those facilities (other than any part of the National Grid System), whether or not belonging or to belong to the Company, which are connected to the National Grid Facilities and through which Natural Gas is intended to flow to and/or from the National Grid System, from and/or to the Gas Plant including but not limited to any gas pipeline, metering and pressure reduction apparatus, as the case may be;
“Compensation Event” has the meaning given in Clause 11;
“Competent Authority” means the Gas and Electricity Markets Authority (as such body is amended or replaced from time to time) or any local, national or supra-national agency, authority, department, inspectorate, minister, official, court, tribunal or public or statutory person (whether autonomous or not) of the United Kingdom (or the government thereof) or the European Union which has jurisdiction over National Grid or the Company or the Agreement;
“Connection” means the physical connection between the Company’s System and the National Grid System at the Point of Connection;
"Connection Offer Modification Application"has the meaning given in the Uniform Network Code;
“Consequential Loss” means:
(a)all losses, damages, costs and expenses (including but not limited to legal expenses) incurred in respect of failure to take, receive or deliver gas arising out of or in connection with the Agreement; and
(b)indirect or special loss (including but not limited to loss of use, revenue, profit, contract and production), increased cost of working and business interruption howsoever caused arising out of or in connection with the Agreement and whether or not foreseeable at the date of Acceptance,
howsoever caused and irrespective of whether caused by the negligence or breach of duty (whether statutory or otherwise) of National Grid or the Company or by any other tortious act or omission or breach of the Agreement by National Grid or the Company;
“Date for Substantial Completion” meansthe date for the Substantial Completion of the Works, being the date identified as such in the Full Connection Offer or such later date as may be established pursuant to Clause 6.1;
“Dispute” means any significant difference of view which has not been resolved by discussion between the Parties as to the interpretation or performance of the Agreement or any of its terms and conditions;
“Due Date” has the meaning given in Clause 7.4;
“Engineer” means the engineer appointed from time to time by National Grid and notified to the Company, to act as Engineer for the purposes of the Agreement;
“Force Majeure” has the meaning given in Clause 9;
“Full Connection Offer” means the information provided to the Company in relation to the proposed connection in accordance with the Uniform Network Code;
"Gas Construction Agreement" means the agreement for gas connection entered into between National Grid and the Company to which these Standard Conditions of Contract form part;
“Gas Plant” has the meaning given in the Company's Application;
“Intellectual Property” means any patent, registered design, copyright, design right, database right, topography right, trade mark, service mark, application to register any of the aforementioned rights, trade secret, right in unpatented know-how, right of confidence and any other intellectual or industrial property right of any nature whatsoever in any part of the world;
“MCMD” means million standard cubic metres per day;
“MCMm” means million standard cubic metres per minute per minute;
“National Grid” means National Grid Gas plc (Company No. 2006000) whose registered office is situated at 1-3 Strand, London, WC2N 5EH and its permitted successors and assigns;
“National Grid Compound”has the meaning given in paragraph 5.1(a) of Annex 1 of these Standard Conditions of Contract;
“National Grid Drawing” has the meaning given in the Full Connection Offer;
“National Grid Facilities” means the equipment located at the Point of Connection and owned and operated by National Grid which provide a physical connection between the Company’s System and the NTS;
“National Grid Licence” means the licence granted, or treated as granted, to National Grid from time to time under Section 7(2) of the Gas Act 1986 as amended, in respect of the NTS;
“National Grid Specific Obligations” means the obligations set out in Annex 2 of these Standard Conditions of Contract;
“National Grid System” means the NTS and shall (for the avoidance of doubt) include the National Grid Facilities;
“National Grid Telemetry Testing” means the completion to National Grid’s reasonable satisfaction by National Grid of all necessary functionality testing of:-
(a)communication of the Signals from the Company’s System and the National Grid Facilities to the relevant National Grid control centre viaNational Grid’s telecoms and data interface and data interface housing(s); and
(b) the satisfactory remote operation of the National Grid remotely operated valve at or near the Point of Connection;
“Natural Gas” means any hydrocarbons or mixture of hydrocarbons and other gases consisting primarily of methane which at a temperature of 15 °C and an absolute pressure of 1.01325 bar are or is predominantly in the gaseous state;
“Network Agreement” means a Network Entry Agreement, a Network Exit Agreement, a Storage Connection Agreement, a Supplemental Agreement, an Interconnector Agreement or a CSEP Network Exit Agreement (as the case may be), as defined in the Network Code;
“Network Code” means the uniform network code prepared by National Grid and other gas transporters pursuant to their respective gas transporters, as modified from time to time in accordance with the terms set out in the uniform network code;
“NTS” means National Grid’s national transmission system;
“Party” means National Grid of the one part and the Company of the other part and “Parties” shall be construed accordingly;
“Point of Connection” means the point at which the Company’s System is connected to the National Grid System;
“Protected Information” means any information relating to the affairs of National Grid or the Company gained pursuant to or in the course of the negotiation, implementation or performance of the Agreement and shall, for the avoidance of doubt, include but not be limited to the Full Connection Offer;
“Reasonable and Prudent Operator”and“RPO” means a person seeking in good faith to perform its contractual obligations, and in so doing and in the general conduct of its undertaking exercising that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced operator complying with applicable law engaged in the same type of undertaking in the same or similar circumstances and conditions, and any reference to the standard of a Reasonable and Prudent Operator shall be construed accordingly;
“Signals” has the meaning given in the Full Connection Offer;
“Subcontract” means a contract between National Grid and a Subcontractor;
“Subcontractor” means any person or corporate body who has a contract with National Grid to carry out and/or provide all or any part of the Works, but who shall not be an agent of National Grid for the purposes of the Agreement nor have any rights or obligations under the Agreement;
“Substantial Completion” means that the Works shall be completed as demonstrated by successful Commissioning and (where required) National Grid Telemetry Testing;
“Validation” means National Grid bringing the National Grid Facilities up to the relevant NTS working pressure prevailing on that day in conjunction with the Company bringing up the Company’s System to the relevant NTS working pressure prevailing on that day, all in accordance with the Institution of Gas Engineers and Managers Recommendations IGEM/TD/1 and IGE/TD/13;
“Validation Conditions” means the requirements listed in paragraph 8 of Annex 1 of theseStandard Conditions of Contract;
“Weather Data” means historical weather data provided by the Met Office in respect of the Weather Measurement Location;
“Weather Measurement” means a measurement, for each calendar month, for the following:-
(a)the cumulative rainfall in millimetres (mm);
(b)the number of days with rainfall of more than five millimetres (5mm);
(c)the number of days with a minimum air temperature less than zero degrees Celsius (0°C); and
(d)the number of days with snow lying at 09:00 hours GMT;
“Weather Measurement Location” has the meaning given in the Gas Construction Agreement;
“Working Day” means a day (not being a Saturday or Sunday) on which the clearing banks in the city of London are normally open for business;
“Works” means the design, construction, commissioning and validation of the National Grid Facilities, as more particularly set out in the Full Connection Offer;
“Works Actual Cost” means the total of:-
(a)the gross amount (ignoring any amounts of retention) certified or re-certified (as the case may be) under the relevant Subcontracts as being payable by National Grid to Subcontractors in respect of the Works (including (for the avoidance of doubt) but not limited to any amounts payable in respect of any Works Compensation Event);
(b)the amounts payable to any third parties (including but not limited to any amounts payable in respect of easements or other land rights) in respect of the Works; and
(c)any amounts chargeable by National Grid for National Grid Internal Works in line with National Grid’s then current policy;
“Works Commencement Date” means the earlier of:-
(a)the date falling thirty (30) calendar days after the date of the Agreement; or
(b)such date as the Company may notify to National Grid after the date of the Agreement PROVIDED ALWAYS that the Company shall give National Grid no less than seven (7) calendar days’ (such period to include not less than five (5) Working Days) prior written notice of such date;
“Works Compensation Event” means a Compensation Event which relates to the Works;
“Works Estimate” means National Grid’s estimate (as set out in Schedule 1 of the Gas Construction Agreement) of the total sum for undertaking the Works, such sum being made up of:-
(a)an estimated sum in respect of National Grid Internal Works, and
(b)an estimated sum in respect of the remainder of the Works;
as such sum may be amended pursuant to Clause 11;
“Works Rebate”has the meaning given in Clause 4.7;
“Works Price” means the Works Actual Cost minus the WorksRebate; and
“Works Price Paid To Date” means the amount paid by the Company pursuant to Clause 7.2 prior to the date in question.
1.2.References in the Agreement to Clauses are to Clauses of these Standard Conditions of Contract, except where otherwise stated.
1.3.Any reference to statutes, statutory instruments, codes of practice, standards or National Grid documents in these clauses or the Agreement are intended to refer to current statutes, statutory instruments, codes of practice, standards or National Grid documents as may be amended, extended, re-enacted or replaced from time to time.
1.4.Words importing the singular number shall include the plural and vice versa and words importing the masculine shall include the feminine and neuter and vice versa.
1.5.In the event of an inconsistency between the various provisions of the Agreement (including any documents incorporated herein by reference) the inconsistency shall be resolved by giving such provisions and documents the following order of precedence:
(a)the Gas Construction Agreement;
(b)Schedules 2 and 3 to the Gas Construction Agreement;
(c)the Clauses of these Standard Conditions of Contract;
(d)the Full Connection Offer; and
(e)any other document forming part of the Agreement.
2.ACCEPTANCE
2.1.The formation of the Agreement (“Acceptance”) shall take effect upon both Parties signing the Agreement.
3.THE COMPANY’S OBLIGATIONS
3.1.The Company, in respect of the Works, and in accordance with the terms and conditions of the Agreement:-
(a)shall make or procure the making of all payments due under the Agreement in accordance with the provisions set out in the Agreement. Any information so provided shall be deemed at all times to be subject to the provisions of Clause 13;
(b)The Company acknowledges and agrees that the Works Estimate (as set out in the Full Connection Offer) and the Date for Substantial Completion (as set out in the Full Connection Offer) have been specified on the basis of the information provided by the Company to National Grid in the Application Form. The Company further acknowledges and agrees that any information provided to National Grid after such date has, irrespective of the date of the provision of such information, not been considered by National Grid in preparing the Full Connection Offer and in arriving at the Works Estimate (as set out in the Full Connection Offer) and the Date for Substantial Completion (as set out in the Full Connection Offer). Any information provided to National Grid by the Company after the Information Cut-off Date shall be a Compensation Event in accordance with Clause 11;
(c)shall not unreasonably interfere with or restrict the carrying out of all or any part of the Works;
(d)shall comply with the Company’s Specific Obligations by the dates (if any) specified in the Agreement for doing so or, where no date is specified, without undue delay;
(e)shall, as and from the Works Commencement Date until completion of the Works, provide free, safe and unrestricted access and egress for National Grid and its contractors at all times (subject to reasonable site rules and regulations) to and from the Company Provided Facilities and any other area(s) within the control of the Company, its agents, contractors and sub-contractors in which the Works or any part thereof are to be carried out;
(f)shall comply with all relevant legislation in the performance of the Company’s obligations under the Agreement;
(g)shall not commence any works in the vicinity of the National Grid System before, during or after the Works without formal written consent from National Grid in accordance with National Grid specification T/SP/SSW22 for “Safe Working In The Vicinity Of Pipelines and Associated Installations Operating Above 7 barg” (as amended from time to time) (a copy of which the Company acknowledges it has received) and without having first provided National Grid with risk assessments in respect of the proposed works; and
(h)acknowledges the importance of maintaining the integrity, safety and security of the National Grid System, and the Company confirms that it (and its employees, agents and sub-contractors) shall not do any act or omission which may cause harm to the National Grid System or jeopardise or threaten to jeopardise any proprietary rights and interests which National Grid has from time to time in the routes and land through which the National Grid System passes; and
(i)shall, subject to the Company’s Specific Obligations, make the Connection.