OIA 21 114 Joint wastewater deed.pdf

Final Draft 1
27 February 2008

DEED RELATING TO JOINT WASTEWATER
WORKS

PORIRUA CITY COUNCIL

WELLINGTON CITY COUNCIL

Barristers & Solicitors
Auckland & Wellington, New Zealand
www.simpsongrierson.com

CONTENTS

CLAUSE
PAGE

1.
DEFINITIONS AND INTERPRETATION
2
2. GENERAL
3
3.
OWNERSHIP OF LAND AND OTHER ASSETS HELD IN CONNECTION
WITH THE JOINT WASTEWATER WORKS
4
4.
APPORTIONMENT OF CAPITAL COSTS AND SALE PROCEEDS
4
5.
APPORTIONMENT OF OPERATING COSTS AND REVENUE
5
6.
MANAGEMENT OF JOINT WASTEWATER WORKS
6
7. BYLAWS
6
8.
APPOINTMENT AND MEMBERSHIP OF JOINT COMMITTEE
6
9.
CONTRACTS FOR THE PURPOSE OF THE JOINT WASTEWATER WORKS
8
10.
ALLOCATION OF SEWAGE DRAINAGE CAPACITY
8
11.
APPORTIONMENT OF CAPITAL COSTS AND SHARES IN OWNERSHIP OF
LAND AND OTHER ASSETS
9
12.
ESTIMATES TO BE PREPARED IN RESPECT OF OPERATING COSTS
9
13.
PAYMENT OF CONTRIBUTIONS TOWARDS OPERATING COSTS
9
14.
PAYMENTS ON ACCOUNT OF CAPITAL COSTS
10
15. DISPUTE
RESOLUTION
10
16.
REVOCATION OF 1986 DEED
11

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DEED DATED
2008

PARTIES

1.
PORIRUA CITY COUNCIL a local authority under the Local Government Act 2002
(Porirua)

2.
WELLINGTON CITY COUNCIL a local authority under the Local Government Act
2002 (Wellington)

BACKGROUND

A.
Her Majesty the Queen (acting by and through the Minister of Works) and Porirua,
were parties to the Original Deed which was made under Section 31 of the Finance
Act (No. 3) 1944 (now repealed). Under the Original Deed, Porirua, Tawa Borough
Council and Hutt County Council agreed to acquire from the Minister a pumping
station and sewer and to become responsible for the maintenance, operation costs,
and management of such works.

B.
The Original Deed was varied by the 1968 Deed and the 1974 Deed which were
made between the Minister and Porirua, Tawa Borough Council and Hutt County
Council.

C.
By virtue of the 1986 Deed the parties recorded the basis of the joint control and
management of the Joint Wastewater Works and the ownership of the assets
acquired in connection with those Joint Wastewater Works.

D.
Pursuant to the Hutt County Abolition Order 1986, the assets of the Hutt County
Council in relation to the Joint Wastewater Works were vested in Porirua.

E.
Pursuant to the Local Government (Wellington Region) Reorganisation Order 1989,
Wellington is the successor to Tawa Borough Council.

F.
Porirua and Wellington have reviewed the basis of the joint control and
management of the Joint Wastewater Works, and have agreed to adopt a new
structure.

G.
Furthermore, because of the dissolution of Hutt County Council and the
incorporation of the Borough of Tawa in Wellington, and because of the enactment
of the Act, certain references in the 1986 Deed are no longer appropriate.

H.
The parties wish to record their agreement in respect of the future operation of the
Joint Wastewater Works and enter into this Deed and revoke the 1986 Deed.

THIS DEED RECORDS THAT:

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1. DEFINITIONS
AND
INTERPRETATION
1.1 Definitions:

In this deed, unless the context indicates otherwise:

Act means the Local Government Act 2002.

Existing Land means the land described in Schedule 2.

Financial Year means a period of 12 months ending on 30 June.

Flow means total sewerage discharge originating from within each respective
Council's district.

Joint Committee means the Wastewater Treatment Plant Joint Committee
appointed by Porirua and Wellington in accordance with this Deed.

Joint Wastewater Works means the Joint Wastewater Works described in
Schedule 1 and agreed to be carried out, operated and maintained pursuant to
this Deed.

Measurement Year means a period of 12 months ending on 31 December.

Operating Costs means all costs incurred in the operation, maintenance and
administration of the Joint Wastewater Works and includes (without limitation)
such fair and reasonable charges as will recompense Porirua for its administration
of the Joint Wastewater Works by its officers and servants as provided for in
clauses 6.1 and 6.2.

Original Deed means a Deed dated 15 May 1964 and made between Her
Majesty the Queen (acting by and through the Minister of Works) Porirua, Tawa
Borough Council and Hutt County Council where Porirua, Tawa Borough Council
and Hutt County Council agreed to acquire from the Minister of Works a pumping
station and sewer and related works and to become responsible for the
maintenance, operation costs and management of such works.

1968 Deed means a Deed dated 5 July 1968 made between the Minister of Works
and Porirua, Tawa Borough Council and Hutt County Council, varying the Original
Deed.

1974 Deed means a Deed dated 15 March 1974 made between the Minister and
Porirua, Tawa Borough Council and Hutt County Council varying the Original
Deed.

1986 Deed means a Deed dated 22 December 1986 made between the Minister
and Porirua, Tawa Borough Council, Hutt County Council and Wellington City
Council varying the Original Deed.

1.2 Interpretation: In this deed, unless the context indicates otherwise:

(a) Defined
Expressions: expressions defined in the main body of this
deed have the defined meaning throughout this deed, including the
background;

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(b) Headings:  section, clause and other headings are for ease of reference
only and will not affect this deed's interpretation;

(c) Parties: references to any party include that party's executors,
administrators, successors and permitted assigns;

(d) Persons: references to a person include an individual, company,
corporation, partnership, firm, joint venture, association, trust,
unincorporated body of persons, governmental or other regulatory body,
authority or entity, in each case whether or not having a separate legal
identity;

(e) Plural
and
Singular:  references to the singular include the plural and
vice versa;

(f) Clauses/Schedules/Attachments:

references to clauses, schedules
and attachments are to clauses in, and the schedules and attachments
to, this deed. Each such schedule and attachment forms part of this
deed;

(g)
Statutory Provisions: references to any statutory provision are to
statutory provisions in force in New Zealand and include any statutory
provision which amends or replaces it, and any by-law, regulation, order,
statutory instrument, determination or subordinate legislation made
under it;

(h) Negative
Obligations:  any obligation not to do anything includes an
obligation not to suffer, permit or cause that thing to be done;

(i) Inclusive
Expressions: the term includes or including (or any similar
expression) is deemed to be followed by the words without limitation;
and

(j) Documents:

references to any document (however described) are
references to that document as modified, novated, supplemented, varied
or replaced from time to time and in any form, whether on paper or in an
electronic form.

2. GENERAL

2.1
The Parties agreed to unite pursuant to section 239 of the Local Government Act
1974 in the acquisition, construction, management, control and maintenance of
the Joint Wastewater Works and for that purpose united in the exercise of the
powers conferred by Parts – XXVI and XXVIII of the Local Government Act 1974
(relating to sewage drainage works and trade waste disposal) and in the exercise
of such of the powers conferred by the Public Works Act 1981 and other enabling
enactments as required or necessary for the purposes of the Joint Wastewater
Works.

2.2
The Parties made such applications and carried out such procedures as were
required or necessary for the purposes of the Joint Wastewater Works by virtue of
the Water and Soil Conservation Act 1967, the Town And Country Planning Act
1977, the Local Authorities Loans Act 1956 and any other relevant statutory
enactments at that time.

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3.
OWNERSHIP OF LAND AND OTHER ASSETS HELD IN CONNECTION WITH
THE JOINT WASTEWATER WORKS
3.1
The Existing Land and any further land acquired for the purpose of the Joint
Wastewater Works must be held by Porirua as registered proprietor on trust for
Porirua and Wellington for the purpose of the Joint Wastewater Works as tenants
in common in shares determined in accordance with the allocation on percentage
basis set out in Schedule 3.

3.2
All other assets acquired by Porirua and Wellington or one of them for the
purposes of the Joint Wastewater Works or held by Porirua and Wellington or one
of them for such purposes must be held beneficially by Porirua and Wellington as
tenants in common in shares determined in accordance with the allocation on
percentage basis set out in Schedule 3.

3.3
Notwithstanding clauses 6.1 and 8.2, any proposed additions to the joint works
shall be considered and agreed to by both parties nominated representatives
stated in clause 15.1.

4.
APPORTIONMENT OF CAPITAL COSTS AND SALE PROCEEDS
4.1
The cost of the acquisition of the Existing Land and any further land acquired or
taken for the purposes of the Joint Wastewater Works, and any compensation
payable under the Public Works Act 1981 to any person (whether in respect of any
injurious affection or the exercise of statutory powers arising out of the Joint
Wastewater Works or otherwise howsoever) and the proceeds of the sale or other
disposition of any land no longer required for the Joint Wastewater Works, must
be apportioned as between Porirua and Wellington in accordance with clause
11.1.

4.2
All other capital costs of the Joint Wastewater Works including site works,
construction costs, consultants and professional fees, plant, equipment and
ancillary works and the proceeds of sale or other disposition of such items must
be apportioned between Porirua and Wellington in accordance with clause 11.1.

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5.
APPORTIONMENT OF OPERATING COSTS AND REVENUE
5.1
In respect of each Financial Year or part Financial Year, the net Operating Costs
in respect of the Joint Wastewater Works must be apportioned between Porirua
and Wellington in accordance with the following formula:

A = B + C

And
B = A x (D – E)/D

And
C = A x E/D

Where
A =
the operational costs to be met by Porirua and Wellington during a
Financial Year; and

B =
is the operational costs to be met by Porirua during a Financial Year; and

C =
is the operational costs to be met by Wellington during a Financial Year;
and

D =
is the total volume of wastewater measured at the outlet flume at the
Wastewater Treatment Plant during the immediately previous
Measurement Year; and

E =
is the volume of wastewater measured at Wall Place that is attributable
to Wellington during the immediately previous Measurement Year.

5.2
In respect of each Financial Year or part Financial Year the revenue arising from
the Joint Wastewater Works (excluding trade waste charges) must be apportioned
Comment: Trade waste
between Porirua and Wellington in accordance with the respective flows
charges are payable to the
originating in each council’s District as at 1 January immediately preceding the
respective Council as per their
bylaws.
commencement of that Financial Year.

5.3
Calibration of flow measurement devices used to determine wastewater volumes
in clause 5.1 must be carried out by an approved independent professional agreed
to by both parties. Calibration is to be repeated on a minimum of a 12 month basis
or every six months if a subsequent calibration differs by more than 10%

5.4
To obtain the certified annual volume of wastewater as in clause 5.1 D and E,
Porirua and Wellington shall sum the daily wastewater volumes for certified days
of record from the outlet flume at the Wastewater Treatment Plant and from Wall
Place respectively.   For a daily wastewater volume to be certified and included in
the total, the volume for each Council’s flow shall be certified as sufficiently
accurate.  Certification criteria shall be developed and agreed by officers of the
two Councils and signed off by the Porirua and Wellington representatives
specified in clause 15.1.

6.
MANAGEMENT OF JOINT WASTEWATER WORKS

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6.1
Porirua and Wellington agree to appoint Porirua to manage the Joint Wastewater
Works which includes –

(a)
Subject to clause 6.2, undertaking the general control and management
of the Joint Wastewater Works on an ongoing basis including the
compilation of estimates and the assessment and notification of
contributions under clause 12;

(b)
engaging consultants and professional advisers;

(c)
investigating future extensions or alterations to the Joint Wastewater
Works;

(d)
supervising on behalf of Porirua and Wellington the design, construction
and completion of additions or alterations to the Joint Wastewater Works;

(e)
undertaking any functions expressly conferred upon it by this Deed;

(f)
subject to clause 9, entering into contracts for the purposes of the above
or generally for the purposes of the Joint Wastewater Works.

6.2
For the purpose of managing the Joint Wastewater Works under clause 6.1, the
management and day to day operation of the Joint Wastewater Works may be
undertaken by Porirua's officers and staff or agents as Porirua thinks fit and
Porirua may, pursuant to clause 30 of Schedule 7 of the Act, make such
delegations as it thinks fit.

6.3
Porirua must provide and be responsible for the due performance of all
administrative, secretarial and accounting services required for the purposes of
the Joint Wastewater Works and the Joint Committee.

6.4
Nothing in this clause limits any delegation which Wellington may make to such of
its officers and staff or agents as is necessary for the purpose of Wellington
carrying out any activity or exercising any of its powers in relation to the Joint
Wastewater Works.

7. BYLAWS
7.1
Porirua, after consultation with the Joint Committee, must make trade waste
bylaws under the Act and may make any other bylaws necessary for the proper
operation and management of the Joint Wastewater Works.

7.2
Wellington agrees to establish and enforce in respect of all direct or indirect
Connections to the Joint Wastewater Works, trade waste controls of no lesser
standard than that adopted by Porirua in any trade waste bylaw made by it at
Wellington City Council’s appropriate convenience.

8.
APPOINTMENT AND MEMBERSHIP OF JOINT COMMITTEE
8.1
Porirua and Wellington must appoint a Joint Committee under the Act.

8.2
The purpose of the Joint Committee is to undertake a governance function by
overseeing the general control and management of the Joint Wastewater Works,

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and by considering and making recommendations to Porirua and Wellington
regarding –

(a)
overview, input and policy formulation in the areas of management of the
Joint Wastewater Works, including development of complementary Trade
Waste Bylaws by Porirua and Wellington;

(b)
proposals for infrastructural development relating to the joint venture;

(c)
new initiatives relating to the joint venture;

(d)
the budget for operation of the joint venture for inclusion in the Councils’
Annual Plans / Long Term Council Community Plans;

(e)
receipt of the Annual Report of the joint venture for inclusion in the
Councils’ Annual Reports;

(f)
any proposed service changes.

8.3
Porirua must, pursuant to clause 30 of Schedule 7 of the Act, delegate to the Joint
Committee the following powers:

(a)
the governance function set out in clause 8.2:

(b)
in accordance with any applicable Bylaw, the power to recommend to
Porirua the basis on which the fees and charges for the conveyance,
treatment and disposal of trade wastes at the Wastewater Treatment
Plant should be set:

(c)
the power to accept or not accept, as the case may be, wastes into the
Wastewater Treatment Plant.

8.4
Wellington must, pursuant to clause 30 of Schedule 7 of the Act, delegate to the
Joint Committee the following powers:

(a)
the governance function set out in clause 8.2;

(b)
in accordance with any applicable Bylaw, the power to recommend to
Wellington the basis on which the fees and charges for the conveyance,
treatment and disposal of trade wastes at the Wastewater Treatment
Plant should be set;

(c)
the power to accept or not accept, as the case may be, wastes into the
Wastewater Treatment Plant.

8.5
The membership of the Joint Committee shall consist initially consist of –

(a)
Three members appointed by Porirua; and

(b)
One member appointed by Wellington.

8.6
At the request of either of the parties, the membership of the Joint Committee
shall be reviewed to reflect the allocation of sewage drainage capacity in clause
10 and the apportionment of capital costs and shares in ownership of land and

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other assets as per clause 11. Such a review shall be done only once per
triennium.

8.7
In accordance with clause 30(7) of Schedule 7 of the Act, Porirua and Wellington
agree to resolve that the Joint Committee will not be discharged on the coming
into office of the members of the councils elected or appointed at, or following, the
triennial general election of members next after the appointment of the committee.

8.8
Without creating any legal or binding obligation, Porirua and Wellington recognise
the desirability for the Chairperson of the Joint Committee to be one of the
members of the Joint Committee appointed by Porirua.

9.
CONTRACTS FOR THE PURPOSE OF THE JOINT WASTEWATER WORKS
9.1
Porirua and Wellington authorise Porirua to enter into on behalf of them, all
contracts which are necessary or expedient for the purpose of the Joint
Wastewater Works and which have been approved by Porirua and Wellington
through the Annual Plan or Long Term Council Community Plan process, as the
case may be.

9.2
All contracts referred to in clause 9.1 must be let in accordance with agreed
purchasing and contract procedures.

9.3
If Porirua and Wellington are unable to agree on a proposal for new major capital
works, the matters in dispute must be referred to dispute resolution in accordance
with clause 15.

9.4
Porirua City Council can initiate immediate actions not approved as per clause 9.1
to contain the impact arising from urgent  operational issues and notify the joint
committee members as soon as practical and appropriate.  Such actions shall be
authorised by the Porirua Representative specified in clause 15.1.

10.
ALLOCATION OF SEWAGE DRAINAGE CAPACITY
10.1
The sewage drainage capacity of the Joint Wastewater Works must be allocated
between Porirua and Wellington in accordance with the table set out in Schedule
3.

10.2
If the sewage drainage capacity of the Joint Wastewater Works exceeds allocated
percentage flows, (being the total sewage drainage capacity as specified in
Schedule 3) then that additional capacity must be allocated between Porirua and
Wellington on the same percentage basis as that specified in Schedule 3 in
respect of the allocation of the existing total sewage drainage capacity.

10.3
Porirua and Wellington are not entitled as of right to have their respective
allocations of the total sewage drainage capacity (as per Schedule 3) reviewed or
adjusted, provided however that if either Council at any time determines that the
sewage drainage capacity allocated to them exceeds its requirements, then either
Council may negotiate with the other for the re-allocation of the excess capacity
on a rental fee basis.

10.4
If Wellington or Porirua utilises more than its stated entitlement, it must pay a
rental fee to the other council to cover its costs of capital. The rental fee is
determined by the parties by subsequent agreement and will be based on a fair
and equable cost attributed to the creating and holding of that capacity.

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11.
APPORTIONMENT OF CAPITAL COSTS AND SHARES IN OWNERSHIP OF
LAND AND OTHER ASSETS
11.1
All capital costs of the Joint Wastewater Works (as specified in clauses 4.1 and
4.2) must be apportioned between Porirua and Wellington in the ratio which their
respective allocations of sewage drainage capacity as provided for in clause 10.1
bears to the total sewage drainage capacity, for the time being, of the Joint
Wastewater Works.

12.
ESTIMATES TO BE PREPARED IN RESPECT OF OPERATING COSTS
12.1
Porirua must on or before 28 February in each year, for the purposes of preparing
the Annual Plan or Long Term Council Community Plan, as the case may be in
the next Financial Year –

(a)
prepare estimates of the gross Operating Costs and revenue of the Joint
Wastewater Works in the next Financial Year; and

(b)
make assessments of the estimated net Operating Costs of the Joint
Wastewater Works and the respective contributions of Porirua and
Wellington towards such net Operating Costs as apportioned between
the Councils in accordance with clause 5.1, in the next Financial Year.

12.2
Any deficiency or surplus at the end of each Financial Year as between the
estimated net Operating Costs and actual net Operating Costs for that Financial
Year must be carried forward as a debit or credit as the case may be and must be
allowed for in preparing estimates and making further assessments pursuant to
clause 12.1

12.3
Porirua may consult with Wellington as the case requires on the estimates and
assessments but must provide the estimates and assessments to the Joint
Committee and to Wellington no later than 31 March.

12.4
If Wellington is dissatisfied with the estimates and assessments, or the amount of
their respective contributions, as provided to them under clause 12.3, Wellington
may, no later than 30 April, refer to matter to dispute resolution in accordance with
clause 15.

13.
PAYMENT OF CONTRIBUTIONS TOWARDS OPERATING COSTS
13.1
No later than the 28th of each month, Porirua must give an invoice to Wellington
stating the amount of Wellington's contributions towards the net Operating Costs
of the Joint Wastewater Works for that month.

13.2
Subject to clauses 13.4 and 13.5, Wellington must pay to Porirua, the invoiced
amount no later than the last day of the following month.

13.3
If any instalment is not paid in accordance with clause 13.2, Wellington will be in
default and will be liable for and must pay interest on any and every amount so
remaining unpaid, until that amount is paid, at the rate which is for the time being

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charged by Porirua’s bankers for money owing on overdraft by Porirua to it or
which would be chargeable if money were owing, as the case may be.

13.4
Nothing in clause 12.4 absolves Wellington from liability to pay any instalment for
the time being falling due after it has been invoiced and before the dispute has
been settled under clause 15 and, if any such instalment is not paid in accordance
with clause 13.2, interest will accrue in accordance with clause 13. 3.

13.5
If as a result of a dispute being settled, an adjustment is made in respect of the
contribution of Wellington and accordingly in respect of any corresponding
instalments, –

(a)
the relevant assessment must be immediately adjusted and credit must
be given to Wellington for any amount so overpaid on any instalment,
together with interest on that amount at a rate determined in accordance
with clause 13.3; or

(b)
Wellington must be required to pay the amount of any increase of any
such contributions or instalment of such contributions payable in
accordance with settlement of the dispute, together with interest thereon
at the rate determined in accordance with clause 13.3 on the amount of
any such adjustment which is unpaid within two weeks of the settlement.

13.6
If at any time during any Financial Year it appears to the Joint Committee that the
net actual Operating Costs for that Financial Year vary from the net estimated
Operating Costs by more than 10%, the Joint Committee may by notice in writing
amend the respective contributions of the Councils towards such net Operating
Costs and further may make all necessary adjustments to any instalments not yet
due for payment pursuant to clause 13.1 of this Deed.

14.
PAYMENTS ON ACCOUNT OF CAPITAL COSTS
14.1
No later than the 28th of each month, Porirua must give an invoice to Wellington
stating the amount of Wellington's contributions towards the capital costs of the
Joint Wastewater Works for that month.

14.2
Wellington must pay to Porirua, the invoiced amount no later than the last day of
the following month.

14.3
If any payment is not made in accordance with clause 14.2, Wellington is in
default and will be liable for and must pay interest on each and every amount
remaining unpaid, until that amount is paid, at the rate of interest determined in
accordance with clause 13.3.

15. DISPUTE
RESOLUTION
15.1
Any dispute arising between Porirua and Wellington concerning the subject matter
of this Deed or its construction or interpretation or anything to be done under it
must be resolved in the following manner:

(a)
In the first instance, the dispute will be discussed and, if possible,
resolved by the agreement of the following representatives of Porirua
and Wellington

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Porirua Representative: General Manager: Asset Management and
Operations (or their nominated representative)

Wellington Representative: Director: Infrastructure (or their nominated
representative)

(b)
If the foregoing representatives are unable to resolve the dispute by
agreement or consider for any reason that it should be dealt with at a
higher level, then the dispute will be referred to the Chief Executives of
Porirua and Wellington to be resolved by agreement:

(c)
If in the event any dispute cannot be resolved through the measures
outlined above in (a) and (b) above, then the matter in dispute must be
referred to mediation. In the event of a difference or dispute being
referred to mediation the parties agree to share equally the costs of
mediation:

(d)
If in the event any dispute cannot be resolved through mediation, then
the matter in dispute must be referred to arbitration in accordance with
the Arbitration Act 1996 or its amendments. In the event of a difference
or dispute being referred to arbitration the parties agree to share equally
the costs of arbitration subject to any award or order which may be made
as a result of arbitration.

16.
REVOCATION OF 1986 DEED

16.1
Porirua and Wellington agree that the 1986 Deed is revoked on the date this Deed
comes into force and no longer applies to either Council.

16.2
This Deed comes into force on the date that it is signed.

EXECUTED AS A DEED

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SCHEDULE 1

Definition of Joint Wastewater Works

(a)
All sewage drains conveying sewage from the junction of the sewer from Tawa
Valley with the Porirua East Sewer to the treatment plant constructed on the
Existing Land near Old Man Point, the treatment plant itself and effluent drains from
the treatment plant to the outfall in Cook Strait; and

(b)
All sewage drains and necessary pumping stations conveying the residual flow from
a point near the existing outfall to the treatment plant constructed on the Existing
Land near Old Man Point;

(c)
All land, other treatment plants, pump stations, tunnels, drains and pipes, buildings,
machinery and appliances and other things of any kind, acquired or constructed,
operated or maintained pursuant to or for the purposes of this Deed.

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SCHEDULE 2

The Existing Land

1.
50.6630 hectares more or less being Lot 1 on Deposited Plan
62407 and being the land comprised and described in Computer
Freehold Register WN 33A/853 (Wellington Registry).

2.
50.7780 hectares more or less being Lot 2 on Deposited Plan
62407 and being the land comprised and described in Computer
Freehold Register WN 33A/854 (Wellington Registry).

3.
Part Takapuwahia A North 2B Block being the land comprised
and described in Computer Freehold Register WN 275/249
(Wellington Registry).

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SCHEDULE 3

ALLOCATION OF SEWAGE DRAINAGE
CAPACITY

Constituent
Total Sewage
Allocation on
Authority
Drainage
Percentage
Capacity in
Basis
terms of Flow

Porirua
72.4

Wellington
27.6

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