UPGRADE OF AUTOMATED DOCKING SYSTEM AT THE O.R. TAMBO INTERNATIONAL AIRPORT FOR 24 MONTHS

Upgrade of automated docking system at the o.R. Tambo international airport for 24 months

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47 The Contractor submits a quality plan for 2 weeks of the Contract Date.

2. Quality of work not up to the required standard

Construction Contract

Between Airports Company South Africa

(Registration no: 1993/004149/06)

and [Insert at award stage]

(Reg No. ___________ )

for

Contents: No of

pages

Part C1 Agreements & Contract Data [47]

Part C2 Pricing Data [3]

Part C3 Scope of Work

Remainder of the works

The total delay damages payable by the

Contractor does not exceed:

X7 Delay damages (but not if Option X5 is

also used)

X7.1 Delay damages for Completion of the

whole of the works are Amount per day is 0.05% of the contract value, up

to the maximum of 10% of the contract value

X13 Performance bond

X13.1 The amount of the performance bond is 5% of the contract value

X15 Limitation of the Contractor’s liability There is no reference to Contract Data in this

for his design to reasonable skill & care Option and terms in italics are identified

elsewhere in this Contract Data.

X16 Retention

X16.1 The retention free amount is

The retention percentage is 0%

X18 Limitation of liability

X18.1 The Contractor’s liability to the Employer Nil - Neither Party is liable to the other for any

for indirect or consequential loss is limited consequential or indirect loss, including but not

to: limited to loss of profit, loss of income or loss of

revenue.

X18.2 For any one event, the Contractor’s The total of the costs incurred and/or damages

liability to the Employer for loss of or suffered

damage to the Employer’s property is

limited to:

X18.3 The Contractor’s liability for Defects due to The total of the costs incurred and/or damages

his design which are not listed on the suffered

Defects Certificate is limited to

X18.4 The Contractor’s total liability to the The Contractor’s total direct liability to the

Employer for all matters arising under or in Employer for all matters arising under or in

connection with this contract, other than connection with this contract, other than the

excluded matters, is limited to: excluded matters, is limited to the total of the

losses incurred and/or repairs to the damages

caused and applies in contract, tort or delict and

otherwise to the extent allowed under the law of

the contract.

The excluded matters are amounts payable by the

Contractor as stated in this contract for:

Defects due to his design which arise before

the Defects Certificate is issued,

Defects due to manufacture and fabrication

outside the Site,

loss of or damage to property (other than the

works, Plant and Materials),

death of or injury to a person.
damage to third party property; and
infringement of an intellectual property right.

X18.5 The end of liability date is The date on which the liability in question

prescribes in accordance with the Prescription Act

No. (as amended or in terms of any

replacement legislation) for any other matter.

Z The Additional conditions of contract

are Z1 to Z24 below.

Amendments to the core clauses

Z1 Interpretation and the law

Z1.1 Add to core clause 12.3: Any extension, concession, waiver or relaxation of any action stated in this

contract by the Parties, the Project Manager, the Supervisor, or the Adjudicator does not constitute a

waiver of rights and does not give rise to an estoppel unless the Parties agree otherwise and confirm

such agreement in writing.

Z1.2 Add the following as a new core clause 12.5:

Z1.2.1 In this contract:

Z1.2.1.1 references to any Party to the Contract include its successors or permitted assigns;

Z1.2.1.2 references to the Contractor include the obligations of its personnel;

Z1.2.1.3 the references to the provisions of any law include such provisions as amended, re-enacted or

consolidated from time to time in so far as such amendment, re-enactment or consolidation applies or

is capable of applying to any works under this Contract;

Z1.2.1.4 references to this Contract and any deed, Contract or instrument are deemed to include references to

this Contract or such other deed, agreement or instrument as amended, novated, supplemented, varied

or replaced from time to time;

Z1.2.1.5 references to a "person" include a natural person, company or any other artificial person or other

corporate entity, a charity, trust, partnership, joint venture, syndicate, or any other association of

persons;

Z1.2.1.6 references to “month” means a calendar month;

Z1.2.1.7 headings are for convenience only and are not taken into consideration in the interpretation of the

Contract;

Z1.2.1.8 where any number of days is prescribed, those days are reckoned exclusively of the first and inclusively

of the last day unless the last day falls on a day that is not a working day, in which event the last day is

the next succeeding working day;

Z1.2.1.9 any provision in Contract that is or may become illegal, invalid or unenforceable in any jurisdiction is

ineffective to the extent of such prohibition or unenforceability in such jurisdiction and is treated as

severed from the balance of Contract in such jurisdiction, without invalidating the remaining provisions

of Contract in such jurisdiction or affecting it in any other jurisdiction;

Z1.2.1.10 references to any amount means that amount exclusive of VAT, unless the amount expressly includes

VAT;

Z1.2.1.11 the rule of construction that if general words or terms are used in association with specific words or

terms that are a species of a particular genus or class, the meaning of the general words or terms shall

be restricted to that same class shall not apply, and whenever the word "including" is used followed by

specific examples, such examples shall not be interpreted so as to limit the meaning of any word or

term to the same genus or class as the examples given;

Z1.2.1.12 the rule of construction that the Contract is interpreted against or to the disadvantage of the party

responsible for the drafting or preparation of Contract does not apply;

Z1.2.1.13 words and abbreviations that have well known technical or trade meanings are used in the Contract in

accordance with such recognized meanings;

Z1.2.1.14 references to a "subsidiary" or a "holding company” is references to a direct or indirect subsidiary or

holding company as defined in the law of the jurisdiction of the place of incorporation of the company

that has a subsidiary or holding company and "affiliate" is any company that is under common control

with such subsidiary or holding company;

Z1.2.1.15 time is of the essence in the performance of the parties’ respective obligations.

Z2 The Project Manager and Supervisor: add the following at the end of core clause 14.2:

Z2.1 The Project Manager and the Supervisor may take an action which they have delegated.

Z3 Early Warning: add the following at the end of core clause 16.2:

Z3.1 The Contractor ensures that a subcontractor attends risk reduction meeting if its attendance would

assist in deciding the actions to be taken.

Z4 Providing the Works: Delete core clause 20.1 and replace with the following:

Z4.1 The Contractor provides the works in accordance with the Works Information and warrants that the

results of the Works, when complete, shall be fit for their intended purpose as stated in the Works

Information, and if no such purposes is stated, the ordinary purpose of the Works.

Z5 Subcontracting:

Z5.1 The following clause is added as a new core clause 26.4: “Within 5 days of request by the Project

Manager, the Contractor provides proof to the Project Manager that the Contractor’s payment

obligations towards its Subcontractors have been discharged. Failure by the Contractor to provide such

proof to the satisfaction of the Project Manager entitles the Employer to instruct the Project Manager to

certify payment directly to any such Subcontractor and the Contractor shall have no recourse to recover

such amounts from the Employer. Such direct payment do not create privity of contract between the

Employer and such Subcontractor. The Employer may recover such direct payment from the

Contractor.”

Z6 Other responsibilities: add the following at the end of core clause 27:

Z6.1 The Contractor has satisfied himself, prior to the Contract Date, as to the completeness, sufficiency and

accuracy of all information and drawings provided to him as at the Contract Date.

Z6.2 The Contractor is responsible for the correct setting out of the Works in accordance with the original

points, lines and levels stated in the Works Information or notified by the Project Manager, Supervisor or

the Employer. Any errors in the positioning of the Works are rectified by the Contractor at the

Contractor’s own costs.

Z7 Acceleration: add the following new provisions at the end of core clause 36:

Z7.1 The Project Manager’s reply is either:

Z7.1.1 A notification that the quotation is accepted, in which case, the Project Manager changes the Prices,

Completion Date and Key Dates and accepts the revised programme; or

Z7.1.2 A notification that the quotation is not accepted and that the Prices, Completion Date and Key Dates are

not changed.

Z8 Extending the defects date: add the following as a new core clause 46:

Z8.1 If the Employer cannot use the works due to a Defect, which arises after Completion and before the

defects date, the defects date is delayed by a period equal to that during which the Employer, due to a

Defect, is unable to use the works.

Z8.2 If part of the works is replaced due to a Defect arising after Completion and before the defects date, the

defects date for the part of the works which is replaced is delayed by a period equal to that between

Completion and the date by when the part has been replaced.

Z8.3 The Project Manager notifies the Contractor of the change to a defect date when the delay occurs.

The period between Completion and an extended defects date does not exceed twice the period

between Completion and the defects date stated in the Contract Data.

Z9 Quality Management System: add the following as a new core clause 47:

Z9.1 The Contractor implements and maintains a quality management system with the requirements stated in

the Works Information.

Z9.2 Within the period stated in the Contract Data, the Contractor provides the Project Manager with a quality

plan for acceptance. A reason for not accepting the quality plan is that it does not allow for the

Contractor to Provide the Works.

Z9.3 If any changes are made to the quality plan, the Contractor provides the Project Manager with the

change’s quality plan for acceptance.

Z9.4 The Project Manager may instruct the Contractor to correct a failure to comply with the quality plan. This

instruction is not a compensation event.

Z10 Assessing the amount due:

Z10.1 Delete the second bullet point of core clause 50.1 and replace with the following: “within thirteen

weeks of termination of this Contract”

Z11 Final assessment: add the following as a new core clause 53:

Z11.1 The Project Manager makes a final assessment and certifies final payment in accordance with the

Contract. The final payment is made within four weeks of the assessment.

Z11.2 An assessment of the final amount due is conclusive evidence of the final amount due under or in

connection with the Contract, unless a Party raises a dispute in relation to the assessment of the final

amount due.

Z11.3 The assessment of the final amount due is changed to include any agreement the Parties reached and/or

a decision of the Adjudicator which has not been referred to the tribunal within four weeks of that decision.

The changed assessment becomes conclusive evidence of the final amount due under or in connection

with the Contract.

Z12 Notifying compensation events:

Z12.1 Delete the last sentence in core clause 61.3 and replace with the following: “If the Contractor

does not notify a compensation event within four weeks of becoming aware of the event, he is not

entitled to a change in the Prices, the Completion date or a Key Date and the Employer is absolved

from all liability in relation to such event.”

Z13 Assessing compensation events:

Z13.1 The following is added at the end of core clause 63.4: “the Contractor shall only be entitled to

changes to the Prices, the Completion Date and/or the Key Date if the compensation event affects the

critical path.”

Z14 Termination

Z14.1 Add the following to core clause 91.1, at the second main bullet, fifth sub-bullet point, after the

words “assets or”: “business rescue proceedings are initiated, or steps are taken to initiate business

recue proceedings”.

Amendments to the secondary option clauses

Z15 Changes in Law: Add the following clause to secondary option X2 as X2.2:

Z15.1 A change in law is defined as:

Z15.1.1 the adoption, enactment, promulgation, coming into effect, repeal, amendment, reinterpretation,

change in application or other modification after the Contract Date of any law, excluding (i) the

enactment of any bill inside the country, but only if such bill is enacted without any material changes

being made to the contents of such bill from the form published in the Gazette (as defined in the

Interpretation Act, 1957) as at the Contract Date, and (ii) any such modification in law relating to any

taxes, charges, imposts, duties, levies or deductions that are assessed in relation to a person’s

income

Z15.1.2 any permit being terminated, withdrawn, amended, modified or replaced, other than (i) in accordance

with the terms upon which it was originally granted, (ii) as a result of the failure by the Contractor to

comply with any condition set out therein, or (iii) as a result of any act or omission of the Contractor,

any Subcontractor or any affiliate to the Contractor.

Z16. Delay damages: add the following to secondary Option X7 (if applicable in this contract)

Z16.1 If the amount due for the Contractor’s payment of delay damages reaches the limits stated in this

Contract Data for Option X7, the Employer may, at its sole discretion, terminate the Contractor’s

obligation to Provide the Works.

Z16.2 If the Employer terminates in terms of this clause, the procedures and payment on termination as

those applied for reasons R1 to R15 or R18 stated in the Termination Table

Z17 Performance Bond

Z17.1 Amend the first sentence of clause X13.1 to read as follows: The Contractor gives the Employer

an unconditional, on-demand performance bond, provided by a bank or insurer which the Project

Manager and the Employer have accepted, for the amount stated in the Contract Data and in the form

set out in Annexure B of this Contract Data.

2Z17.2 Add the following new clause as Option X13.2: The Contractor ensures that the performance bond is

valid and enforceable until the end of the contract period. If the terms of the performance bond specify

its expiry date and the end of the contract period does not coincide with such expiry date, four weeks

prior to the said expiry date, the Contractor extends the validity of the performance bond until the end of

the contract period. If the Contractor fails to so extend the validity of the performance bond, the Employer

may claim the full amount of the performance bond and retain the proceeds as cash security

Z18 Limitation of liability: Insert the following new clause as Option X18.6:

Z18.1 The Employer's liability to the Contractor for the Contractor's indirect or consequential loss is limited to

R0.00.

Z18.2 Notwithstanding any other clause in this contract, any proceeds received from the security bonds and

guarantees provided by the Contractor in terms of this Contract and any insurances or any proceeds

which would have been received from any insurances but for the conduct of the Contractor shall be

excluded from the calculation of the limitations of liability listed in the contract.

Additional z clauses

Z19 Cession, delegation and assignment

Z19.1 The Contractor shall not cede, delegate or assign any of its rights or obligations to any person without

the written consent of the Employer, which consent shall not be unreasonably withheld. This clause

shall be binding on the liquidator/business rescue practitioner /trustee (whether provisional or not) of

the Contractor.

Z19.2 The Employer may, on written notice to the Contractor, cede and delegate its rights and obligations

under this contract to any person or entity.

Z20 Joint and several liability

Z20.1 If the Contractor constitutes a joint venture, consortium or other unincorporated grouping of two or

more persons, these persons are deemed to be jointly and severally liable to the Employer for the

performance of the Contract.

Z20.2 The Contractor shall, within 1 week of the Contract Date, notify the Project Manager and the Employer

of the key person who has the authority to bind the Contractor on their behalf.

Z20.3 The Contractor does not materially alter the composition of the joint venture, consortium or other

unincorporated grouping of two or more persons without prior written consent of the Employer.

Z21 Ethics

Z21.1 The Contractor undertakes:

Z21.1.1 not to give any offer, payment, consideration, or benefit of any kind, which constitutes or could be

construed as an illegal or corrupt practice, either directly or indirectly, as an inducement or reward for

the award or in execution of this contract;

Z21.1.2 to comply with all laws, regulations or policies relating to the prevention and combating of bribery,

corruption and money laundering to which it or the Employer is subject, including but not limited to the

Prevention and Combating of Corrupt Activities Act, .

Z21.2 The Contractor’s breach of this clause constitutes grounds for terminating the Contractor’s obligation

to Provide the Works or taking any other action as appropriate against the Contractor (including civil

or criminal action). However, lawful inducements and rewards shall not constitute grounds for

termination.

Z21.3 If the Contractor is found guilty by a competent court, administrative or regulatory body of participating

in illegal or corrupt practices, including but not limited to the making of offers (directly or indirectly),

payments, gifts, gratuity, commission or benefits of any kind, which are in any way whatsoever in

connection with the contract with the Employer, the Employer shall be entitled to terminate the

contract in accordance with the procedures stated in core clause 92.2. The amount due on termination

is A1.

Z22 Confidentiality

Z22.1 All information obtained in terms of this contract or arising from the implementation of this contract

shall be treated as confidential by the Contractor and shall not be used or divulged or published to any

person not being a party to this contract, without the prior written consent of the Project Manager or

the Employer, which consent shall not be unreasonably withheld.

Z22.2 If the Contractor is uncertain about whether any such information is confidential, it is to be regarded as

such until otherwise notified by the Project Manager.

Z22.3 This undertaking shall not apply to –

Z22.3.1 Information disclosed to the employees of the Contractor for the purposes of the implementation of

this agreement. The Contractor undertakes to procure that its employees are aware of the confidential

nature of the information so disclosed and that they comply with the provisions of this clause;

Z22.3.2 Information which the Contractor is required by law to disclose, provided that the Contractor notifies

the Employer prior to disclosure so as to enable the Employer to take the appropriate action to protect

such information. The Contractor may disclose such information only to the extent required by law and

shall use reasonable efforts to obtain assurances that confidential treatment will be afforded to the

information so disclosed;

Z22.3.3 Information which at the time of disclosure or thereafter, without default on the part of the Contractor,

enters the public domain or to information which was already in the possession of the Contractor at

the time of disclosure (evidenced by written records in existence at that time);

Z22.4 The taking of images (whether photographs, video footage or otherwise) of the works or any portion

thereof, in the course of Providing the Works and after Completion, requires the prior written consent

of the Project Manager. All rights in and to all such images vests exclusively in the Employer.

Z22.5 The Contractor ensures that all his Subcontractors abide by the undertakings in this clause.

Z23 Liens and Encumbrances

Z23.1 The Contractor keeps the Equipment used to Provide the Services free of all liens and other

encumbrances at all times. The Contractor, vis-a-vis the Employer, waives all and any liens which he may

from time to time have, or become entitled to over such Equipment and any part thereof and procures

that his Subcontractors similarly, vis-a-vis the Employer, waive all liens they may have or become entitled

to over such Equipment from time to time

Z24 Intellectual Property

Z24.1 Intellectual Property (“IP”) rights mean all rights in and to any patent, design, copyright, trade mark,

trade name, trade secret or other intellectual or industrial property right relating to the Works.

Z24.2 IP rights remain vested in the originator and shall not be used for any reason whatsoever other than

carrying out the works.

Z24.3 The Contractor gives the Employer an irrevocable, transferrable, non-exclusive, royalty free licence to

use and copy all IP related to the works for the purposes of constructing, repairing, demolishing,

operating and maintaining the works.

Z24.4 The written approval of the Contractor is to be obtained before the Contractor's IP made available to

any third party which approval will not be unreasonably withheld or delayed. Prior to making any

Contractor's IP available to any third party the Employer shall obtain a written confidentiality

undertaking from any such third party on terms no less onerous than the terms the Employer would use

to protect its IP.

Z24.5 The Contractor shall indemnify and hold the Employer harmless against and from any claim alleging

an infringement of IP rights (“the claim”), which arises out of or in relation to:

Z24.5.1 the Contractor’s design, manufacture, construction or execution of the Works;

Z24.5.2 the use of the Contractor’s Equipment, or

Z24.5.3 the proper use of the Works.

Z24.6 The Employer shall, at the request and cost of the Contractor, assist in contesting the claim and the

Contractor may (at its cost) conduct negotiations for the settlement of the claim, and any litigation or

arbitration which may arise from it.

Annexure A: One-in-ten-year-return weather data obtained from SA

Weather Bureau for [weather station]

If any one of these weather measurements recorded within a calendar month, before the Completion Date

for the whole of the works and at the place stated in this Contract Data is shown to be more adverse than the

amount stated below then the Contractor may notify a compensation event.

Weather measurement

Month Cumulative Number of Number of Number of [Other

rainfall (mm) days with rain days with min days with snow measurements

more than air temp < 0 lying at 08:00 if applicable]

10mm deg.C CAT

January [●] [●] [●] [●]

February [●] [●] [●] [●]

March [●] [●] [●] [●]

April [●] [●] [●] [●]

May [●] [●] [●] [●]

June [●] [●] [●] [●]

July [●] [●] [●] [●]

August [●] [●] [●] [●]

September [●] [●] [●] [●]

October [●] [●] [●] [●]

November [●] [●] [●] [●]

December [●] [●] [●] [●]

Only the difference between the more adverse recorded weather and the equivalent measurement given

above is taken into account in assessing a compensation event.

Annexure B: Pro forma Security Bonds and Guarantee (NA)

Annexure C: ACSA Panel of Adjudicators

One of the following adjudicators shall be selected by the referring party as and when a dispute arises. This

panel is valid for a period of three years, commencing on 1 May 2020.

Potential Adjudicator Email Address Chamber

Adv. Mkhululi Duncan Stubbs [email protected] Thulamela Chambers

Adv. Arzhar Bham SC [email protected] Victoria Mxenge

Adv. Mohhamed Chohan SC [email protected] Group One

Adv. Benny Makola [email protected] Group 621

Adv. Vincent Maleka SC [email protected] Thulamela Chambers

Adv. Chris Loxton SC [email protected] Group One

Insurance clauses for landside construction contracts where the awarded

Contract value does not exceed r150 million, and the construction period does

Not exceed 36 months, and the defects liability period does not exceed 24 months

Each Party shall be responsible for effecting and maintaining the relevant insurances as specified below and to the

extent relevant to the Contract.

1. Insurance Effected by The Employer (Principle Controlled Insurance (“PCI”))

1.1 Notwithstanding anything elsewhere contained in this Contract and without limiting the obligations,

liabilities or responsibilities of the Contractor in anyway whatsoever (including but not limited to any

requirement for the provision by the Contractor of any other insurances) the Employer shall effect and

maintain for the duration of the construction and maintenance periods of the Contract - as appropriate

in the joint names of the Employer, the Contractor and where relevant Sub-Contractors the following

insurances which are subject to the terms, limits, exceptions and conditions of the Policy:

a) Contract Works/Contractors Public Liability/ Removal Of Lateral Support Liability

Section 1 Of the Policy – Contract Works

Contract Works Insurance for the full value of the Works to provide cover against accidental physical loss of or

damage to the Works, Temporary Works and materials intended for incorporation in the Works all being the

subject matter of this Contract including to the extent provided for in the policy whilst in transit or temporarily

stored at any premises en route to or from the Site (other than where this is a continuation of Marine Transit)

within the territorial limits of the policy.

This insurance may specifically exclude any cost necessary to replace or rectify any of the property

insured, which is in a defective condition due to defect in design, plan specification, material or

workmanship.

This insurance contains the following limitations and warrantees.

Open Trench Limitation

In respect of loss or damage to open trenches and pipes, conduits or cables laid therein, caused directly or

indirectly by rain, inundation or flood, Insurers liability shall be limited in respect of the aggregate length of

open trenches at any one time to 2,500 meters.

Exposed Layer Works (applicable to works involving paving, roadways, bulk earthworks and runways and

taxiways)

In respect of loss or damage to Exposed Layer Works relating to paving, roadways and runways (including

taxiways) caused directly or indirectly by rain, inundation or flood, Insurers liability shall be limited in respect

of the aggregate length of Exposed Layer Works at any one time to 2,500 meters.

Section II of the Policy – Contractors Public Liability

Public Liability Insurance which provides indemnity against legal liability in the event of

accidental death of or injury to persons and/or loss of or damage to property(other than

the Works the subject matter of this Contract) arising from the execution of the Contract

with a limit of indemnity of R100,000,000 in respect of any one occurrence or series of

occurrences consequent on or attributable to one source or original cause.

Section III of the Policy – Removal of Lateral Support Liability

Removal Of Lateral Support Liability which provides indemnity against legal liability in the

event of accidental death of or injury to persons and/or loss of or damage to property

(other than the Works the subject matter of this Contract) arising out of or in connection

with shock or vibration or the removal or weakening of or interference with support to

property in the vicinity of the Contract Site and arising out of or in connection with the

Insured Contract (but not in respect of tunnelling works) and occurring during the Period

of Insurance.

The Limit of Indemnity being limited to R50,000,000 attributable to one source or original

cause

b) Contract Works SASRIA – Providing physical loss of or damage to the Works, Temporary Works and

materials intended for incorporation in the Works as covered by the underlying Contract Works

policy as noted in (a) above due to perils as covered in terms of the SASRIA Contract Works wording

as issued by SASRIA SOC.

The Contract Works SASRIA cover excludes consequential or indirect loss or damage of any

kind or description whatsoever.

The SASRIA Contract Works policy is limited to R500,000,000 (Incl. VAT) in the aggregate

during the policy period of insurance.

The Contract Works SASRIA policy wording can be obtained from the SASRIA website

http://www.sasria.co.za/ which notes the covers and policy exclusions.

c) Design & Construct Professional Indemnity Insurance which provides indemnity against legal

liability to pay compensation as a result of any actual or alleged negligent act, error or omission in

the performance of the Professional Duties of the insured and arising from the execution of this

project. The limit of indemnity under this insurance shall be *R25,000,000 in the aggregate during

the annual policy period of insurance that ACSA effect such cover during the policy period from

1 April to 31 March during each policy period of insurance.

The limit of indemnity applies to all ACSA contracts as a whole and does not apply specifically

to this contract. The aggregate limit could be exhausted by claims under other ACSA contracts

and there is no guarantee that this insurance cover will provide sufficient cover to this specific

contract should the aggregate limit be exhausted.

The Policy only covers the rectification of the works and excludes all consequential

losses.

Professional Duties do not include:

a) Labour and construction work which would normally be the responsibility of the

building or engineering contractor.

b) Supervision of the construction works usually undertaken by a building or engineering

contractor.

1. 2 The Contractor shall familiarise itself fully with the details of such insurance effected by the

Employer. The Contractor shall comply to all the terms and conditions of the Employer arranged

policies and the Contractor shall be deemed to be fully aware of all the conditions, limits, limitations,

exclusions/exceptions and deductibles that are contained in the Employer arranged policies. Copies

of the Employer arranged policies are obtainable on request from the Employer and if the Contractor

is of the opinion that additional insurance is required, such shall be for the Contractors account.

1.3 The Employer shall pay the premium in connection with the insurances effected by the

Employer. The Employer is entitled to all return premiums, dividends, discounts, or

adjustments in connection with the insurances effected by the Employer.

1.4 The Contractor shall not include any premium charges for this insurance except to the extent,

which he may deem necessary in his own interests to effect supplementary insurance to the

insurance effected by the Employer. The Employer reserves the right to call for full information

regarding insurance costs included by the Contractor.

In the event that the Contractor purchases any insurances in addition to those indicated

above, the premium and taxes, duties, etc. shall be borne entirely by the contractor.

1.5 Any further clarification of the scope of cover provided by the Policies arranged by the

Employer should be obtained from the Employer.

1.6 The Contractor and/or any other party who obtains indemnity under the policies effected under

1.1 shall become liable for the deductibles (first amount payable) which are applicable in

respect of each and every occurrence or series of occurrences attributable to one source or

cause giving rise to loss or damage or indemnifiable liability. The deductibles applicable to the

policies effected under 1.1 are as follows:

a) Contract Works/Contractors Public Liability/ Removal Of Lateral Support Liability

Unless stated otherwise in the Policy Extensions the Deductibles shall be as follows which will

apply in respect of each and every occurrence or series of occurrences arising out of or in

connection with any one event giving rise to loss or damage:

Section 1 Of the Policy – Contract Works

In respect of all loss or damage R150,000 but increased to R250,000 in respect of

loss or damage arising out of or in connection with testing and commissioning.

Section 2 Of the Policy – Contractors Public Liability

R75,000 each and every claim in respect of Property Damage.

Section 3 Of the Policy – Removal Of Lateral Support Liability

R75,000 each and every claim.

b) Contract Works SASRIA

In respect of theft as a result of the SASRIA perils insured - R25,000 each and every

occurrence.

Design & Construct Professional Indemnity Insurance

a) In respect of contracts under R50 million at award – R5,000,000.

b) In respect of contracts over R50 million at award – R10,000,000

1.7 In the event of any occurrence which is likely to give rise to a claim under the insurance

arranged by the Employer, the Contractor shall:

a) In addition to any statutory requirement or other requirements contained in the Contract

immediately notify the Employer and the Employer's Insurance Brokers by telephone,

mobile phone or email giving the circumstances, nature and an estimate of the loss or

damage or liability. The Contractor must also complete the Claim Advice Form

(Appendix “A” ).

The following persons/insurers must be advised immediately on the occurrence of a claim on site or even a

possibility of a claim arising due to an incident occurring on site:

Airports Company South Africa:

Nokulunga Masiza

Tel: +27 (0)11 723 1400

M: +27 (0)79 512 0532

[email protected]

Buhle Mnguni

D: +27 (0)11 723 1400

M: +27 (0)74 535 9075

[email protected]

b) Preserve damage and make it available for inspection by a representative of the Insurers.

c) Wherever possible, photographs of damage should be taken.

d) Inform the police authorities promptly in the event of loss or damage by theft, burglary or

any malicious persons(s) for the purpose of recovering any property so lost, discovering

the guilty person or persons, and having him, her or them duly prosecuted.

e) Advise the Insurers of any other insurance(s) which may cover the same loss, damage

or injury, or any part thereof.

f) Give to the Insurers every assistance to enable the Insurers to settle or resist any claim

against the Insured or institute any proceedings.

g) On completion the Claims Advice Form, the form must be sent to the Employers

Insurance Brokers for further action (the original may be emailed to the Employers

Insurance Broker). (Please do not remove the Claims Advice Form out of this document.

Rather photocopy the form and send the copy to the Employers Insurance Brokers).

h) The Employer and the employers Insurance brokers / Insurers or their appointed loss

adjusters shall have the right to make all and any enquiries on the Site of the Works or

elsewhere as to the cause and results of any such occurrence and the Contractor shall

cooperate in carrying out such enquiry's.

i) The Contractor, Project Managers and Consultants must allow free access to Insurers’

assessors for the purpose of investigating and assessing the loss or damage.

j) The Contractor must not proceed with the making good any off the loss without the prior

authorisation of the Insurers.

k) The Contractor must keep separate records of the costs involved in making good any

loss or damage and these records should be available at all times for inspection by

Insurers. Such records should include inter alia the entire cost of labour, materials,

transport and equipment.

l) Where required by the Employer, negotiate the settlement of claims with the Insurer or

their appointed loss adjusters through the Employer's Insurance Brokers and shall obtain

the Employer's approval of such settlement.

m) Once the amount of a claim is agreed by the Insurers and the Contractor, an “Agreement

of Loss” form must be signed by the Contractor and if required this shall be counter signed

by the Employer or the Project Managers.

n) The proceeds of such claim will, if required by the Employer, be paid net of any Deductible

applicable under the policy by the Insurers to the Employer who on receipt thereof will

arrange for payment to be made in terms of the Conditions of Contract. In the event that

it is agreed by the Employer that such claims payment be made directly to the Contractor,

the Contractor shall arrange for the Employer to endorse the “Agreement of Loss” to this

effect.

2. Insurance Effected by the Contractor.

In addition to Clause 1.1 in respect of the insurances effected by the Employer the following

Insurances to be effected by the Contractor:

2.1 Without limiting the Contractor’s obligations, responsibilities and liabilities, the

Contractor and Sub-contractor shall maintain at the Contractor's and Subcontractor’s

expense and where applicable provide as a minimum the following insurances:

a) Insurance of Construction Plant and Equipment (including tools offices and other

temporary structures and contents) and other things (except those intended for

incorporation into the Works) brought onto the site for a sum sufficient to provide for

their replacement.

The Employer shall be named as additional insured and a waiver of subrogation

shall be provided to the Employer.

b) Contractor’s Common Law Liability/ Worker’s Compensation Insurance

The Contractor shall take out and maintain employer's liability insurance with a limit of

indemnity of not less than R20,000,000 and/or workmen's compensation insurance

covering personal injury to or death of the employees of the Contractor engaged in

connection with the Works to the minimum value required by applicable law.

The Contractor shall procure that its Subcontractors take out and maintain similar

insurance in respect of its Subcontractor’s personnel performing the Works.

In the event that a claim is made against the Employer in connection with such insurance,

the Contractor shall indemnify and hold harmless the Employer against any such claim.

The Employer shall be named as additional insured, and a waiver of subrogation shall be

provided to the Employer.

c) Motor Vehicle Liability Insurance comprising (as a minimum) "Balance of Third Party" Risks

including Passenger Liability indemnity with a limit of indemnity of not less than R5 000 000

for all owned, non-owned, leased and hired vehicles.

d) Insurance For Buy-Down Cover of Employer’s Deductibles

Should the Contractor believe that the Employer effected Contract Works, Public Liability

and Design & Construct Professional Indemnity deductibles as noted in Clause 1.1 (a) and (c)

be considered to be unacceptable to the Contractor, then the Contractor must obtain Buy

Down cover for these deductibles to a deductible considered by the Contractor as being

acceptable in respect of the works being undertaken.

e) Where the Contract involves manufacturing and/or fabrication of the Works or parts

thereof at premises other than at the Contract Site the Contractor shall satisfy the Employer

that all materials and equipment for incorporation in the Works are adequately insured

during manufacture and/or fabrication. In the event of the Employer having an insurable

interest in such Works during manufacture or fabrication then such interest shall be noted

by endorsement to the relevant Policies of Insurance.

Such insurance shall name Employer as an additional insured and shall be primary to

any insurance maintained by the Employer.

f) Public Liability insurances in excess of the Employers Public Liability insurances as

stated under clause 1.1(a).

g) Contractor’s Professional Indemnity Insurance in excess of the Employers Design &

Construct Professional Indemnity insurances as stated under clause 1.1(c) and if applicable

to cover the deductible that applies to the Employer effected insurance.

h) Marine Cargo Insurance (If Applicable)

Cover: Imports of cargo, equipment, goods, plant, machinery and materials (“Insured

Property”) to the site where the Permanent Works will be

constructed.

Sum Insured: Not less than the value of the largest single cargo shipment,

conveyance or the value in storage, whichever is the greater (CIF

plus 10%).

Marine / Air Cargo Insurance covering the Insured Property against all risks of physical loss

or damage while in transit by land, sea or air from country of origin anywhere in the world

to the site where the Permanent Works will be constructed including loading, or vice versa,

from the commencement of the time the insured items are loaded prior leaving the

warehouse or factory for shipment to the said site.

The insured parties are the Employer, the Contractor and its Subcontractors, and all their

personnel involved in the execution of any Works on the construction site.

j) Miscellaneous Insurance

Other insurance as is customary, desirable or necessary to comply with applicable

Laws in the Country.

2.2 The insurances to be provided by the Contractor and his Sub-contractor shall be effected

with

Insurers and on terms approved by the Employer (which approval shall not be

unreasonably withheld) and shall be maintained in force for the duration required

(including any period of maintenance/defects liability period). The Contractor shall within

twenty-eight (28) days of commencement of the contract produce to the Employer the

relevant Policy or Policies of Insurance.

2.3 In the event that the Contractor or his Sub-contractor receives any notice of cancellation

or restrictive modification to the insurance provided to them they shall immediately notify

the Employer in writing of such cancellation or restriction and shall advise what action

the Contractor or his Sub-contractor will take to remedy such action.

If the Contractor fails to effect and keep in force the insurances referred to then the

Employer may effect and keep in force any such insurances and pay such premium or

premiums as may be necessary for that purpose and from time to time deduct the

amount paid by the Employer from any monies due or which may become due to the

Contractor or recover same as a debt from the Contractor.

2.4 Sub-Contractors.

The Contractor shall:

a) ensure that all potential and appointed Sub-contractors are aware of the whole

contents of these Insurance Clauses, and

b) enforce the compliance by subcontract agreement between the Contractor and

SubContractor and where applicable that the Sub Contractor effect similar insurance

relating to the insurances required to be effected by the Contractor under Clause 2

(Contractor effected insurances).

Appendix a

42.2 The defects date is 52 weeks after Completion of the whole of the

works.

43.2 The defect correction period is 52 weeks

except that the defect correction period for

and the defect correction period for

47 The Contractor submits a quality plan for 2 weeks of the Contract Date.

acceptance within:

testing will be done

per ADS.

X5 & X7 Sectional Completion and delay

damages used together

X7.1 Delay damages for late Completion of the

X5.1 sections of the works are: section Description Amount per day

1 Project handover R10 000

2 Commissioning and R8 000

Testing

between Completion and the defects date stated in the Contract Data.

Z9 Quality Management System: add the following as a new core clause 47:

Z9.1 The Contractor implements and maintains a quality management system with the requirements stated in

the Works Information.

Z9.2 Within the period stated in the Contract Data, the Contractor provides the Project Manager with a quality

plan for acceptance. A reason for not accepting the quality plan is that it does not allow for the

(Registration no: 1993/004149/06)

and [Insert at award stage]

(Reg No. ___________ )

for

Contents: No of

pages

Part C1 Agreements & Contract Data [47]

Part C2 Pricing Data [3]

Part C3 Scope of Work [14]

Part C4 Site Information [3]

Part C1: Agreements and contract data, (which includes this agreement)

Part C2: Pricing data and Price List

Part C3: Service information.

Part C4: Site information

and schedules, drawings and documents or parts thereof where so indicated.

No specific requirements found

Part C1: Agreements & Contract Data

Contents: No of

pages

C1.1 Form of Offer and Acceptance [3]

C1.2a Contract Data provided by the Employer [15]

C1.2b Contract Data provided by the Contractor [2]

C1.3 Proforma Guarantees [13]

Contract 2 c1.1 Form of offer and acceptance

schedule of deviations (if any), contact the employer’s agent (whose details are given in the contract

data) to arrange the delivery of any bonds, guarantees, proof of insurance and any other documentation

to be provided in terms of the conditions of contract identified in the contract data. Failure to fulfil any of

these obligations in accordance with those terms shall constitute a repudiation of this agreement.

Unless the Bidder (now Contractor) within five working days of the date of such receipt notifies the

employer in writing of any reason why he cannot accept the contents of this agreement, this agreement

shall constitute a binding contract between the parties.

for the Employer

clauses and the clauses for main Option

B: Priced contract with bill of

quantities

dispute resolution Option W1:Dispute resolution procedure

and secondary Options

X5: Sectional Completion

X7: Delay damages

X13 : Performance bond

X15: Limitation of Contractor’s

liability for design to

reasonable skill and care

X18: Limitation of liability

X20 : Key performance indicators

Z: Additional conditions of contract

of the NEC3 Engineering and Construction

Contract, April 2013 (ECC3)

10.1 The Employer is (Name): Airports Company South Africa SOC Limited (reg.

no: 1993/004149/06), a juristic person

incorporated in terms of the company laws of the

(1) The Contractor has engaged with the persons

responsible for the riot, commotion, disorder, strike or

lockout; has met with the persons or leaders; and has

recorded the persons or leaders details, their

grievances, the organisations involved, all threats

made; and has requested the persons or leaders to

cease all unlawful conduct; and

(2) The Contractor has obtained proof of the riot,

commotion, disorder, strike or lockout, and of any

unlawful conduct; and

(3) The Contractor has reported all threats and

unlawful conduct to the South African Police Service;

and

(4) The Contractor has brought an urgent application to

the court on an ex parte basis that correctly identify the

respondents and define the unlawful conduct to be

interdicted; and

(5) The Contractor has ensured that the court order is

enforced.

84.1 The Employer provides these insurances See Annexure D to this Contract Data provided by

from the Insurance Table the Employer.

84.1 The Employer provides these additional [●]

insurances

84.1 The Contractor provides these additional [●]

insurances

84.2 The minimum limit of indemnity for Total of the losses incurred and/or repairs to the

insurance in respect of loss of or damage damages caused.

to property (except the works, Plant,

Materials and Equipment) and liability for

bodily injury to or death of a person (not

an employee of the Contractor) caused by

activity in connection with this contract for

any one event is

84.2 The minimum limit of indemnity for As prescribed by the Compensation for

insurance in respect of death of or bodily Occupational Injuries and Diseases Act No. 130 of

injury to employees of the Contractor 1993 and the Contractor’s common law liability for

arising out of and in the course of their people falling outside the scope of the Act, As

employment in connection with this stated in C1.4

contract for any one event is

11 Data for Option W1

W1.1 The Adjudicator is (Name) The person selected from the panel of adjudicators

listed in Annexure C of this Contract Data, by the

party intending to refer a dispute to him.

X7 Delay damages (but not if Option X5 is

also used)

X7.1 Delay damages for Completion of the

whole of the works are Amount per day is 0.05% of the contract value, up

to the maximum of 10% of the contract value

X13 Performance bond

X13.1 The amount of the performance bond is 5% of the contract value

X15 Limitation of the Contractor’s liability There is no reference to Contract Data in this

for his design to reasonable skill & care Option and terms in italics are identified

elsewhere in this Contract Data.

X16 Retention

X16.1 The retention free amount is

The retention percentage is 0%

X18 Limitation of liability

X18.1 The Contractor’s liability to the Employer Nil - Neither Party is liable to the other for any

for indirect or consequential loss is limited consequential or indirect loss, including but not

to: limited to loss of profit, loss of income or loss of

revenue.

X18.2 For any one event, the Contractor’s The total of the costs incurred and/or damages

liability to the Employer for loss of or suffered

damage to the Employer’s property is

limited to:

X18.3 The Contractor’s liability for Defects due to The total of the costs incurred and/or damages

his design which are not listed on the suffered

X18.4 The Contractor’s total liability to the The Contractor’s total direct liability to the

Defects due to his design which arise before

the Defects Certificate is issued,

Defects due to manufacture and fabrication

outside the Site,

loss of or damage to property (other than the

works, Plant and Materials),

death of or injury to a person.
damage to third party property; and
infringement of an intellectual property right.