Replacement of split units at o.R. Tambo international airport – 24-Month contract

The works involve the replacement of split units at OR Tambo International Airport. The contract is an NEC3 Engineering & Construction Contract (June 2005) with a priced activity schedule. The method of measurement is the 6th edition of the Standard System of Measuring Building Works. The contract includes secondary options, including Option X13 (Performance Bond) and Option X5 (Delay Damages). Delay damages are 0.05% of the contract value per day, capped at 10% of the contract value. The contract value does not exceed R150 million, the instruction period does not exceed 36 months, and the defects liability period does not exceed 24 months.

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Submit the completed tender documents, including all returnable forms, to the Employer (ACSA) before the closing date and time. The closing date and time are not stated in the available text. Bids must be submitted in the prescribed format; failure to complete and sign all required forms may lead to disqualification. The contract is subject to South African law and the language of the contract is English.

Contractor must provide performance bond (10% of contract value excluding VAT) within 10 working days of award, and other securities as per contract data.

The evaluation criteria are not explicitly stated in the available text. The contract includes secondary options such as Option X13 (Performance Bond) and Option X5 (Delay Damages). The contract includes additional conditions (Z clauses) covering cession, delegation, assignment, and other responsibilities.

Construction Contract

Between Airports Company South Africa

(Registration no: 1993/004149/06)

and [Insert at award stage]

(Reg No. ___________ )

for REPLACEMENT OF SPLIT UNITS AT OR TAMBO

International airport for a period of 24

Months

Contents: No of

pages

Part C1 Agreements & Contract Data [1]

Part C2 Pricing Data [42]

Part C3 Scope of Work

2 Air-conditioning and

Refrigeration Mechanic

Name:

Qualifications relevant to this

contract

3 Electrician

Name:

Qualifications relevant to this

contract

4 Controls and Instrumentation

Engineer

Name:

Qualifications relevant to this

contract

5 Assistant Refrigeration

Mechanic

Name:

Contract Data (Contractor) C1.2b

Confidential

Qualifications relevant to this

contract

Contract Data (Contractor) C1.2b

Confidential

C1.3 Forms of Securities

Pro formas for Bonds & Guarantees

For use with the NEC3 Engineering & Construction Contract (June 2005)

The conditions of contract stated in the Contract Data Part 1 include the following Secondary Options:

Option X13: Performance Bond

Each of these secondary Options requires a bond or guarantee “in the form set out in the Works

Information”. Pro forma documents for these bonds and guarantees are provided here for convenience

but are to be treated as part of the Works Information.

Option X16: Retention (not used with Option F)

The Contractor may provide a Retention Money Guarantee in the form stated here. When the Employer

receives and accepts a Retention Money Guarantee exactly in the form stated he will instruct the Project

Manager not to assess any amount be retained in terms of secondary Option X16.

The organisation providing the bond / guarantee does so by copying the pro forma document onto his

letterhead without any change to the text or format and completing the required details. The completed

document is then given to the Employer within the time stated in the contract.

Forms of Sureties C1.3

Confidential

Confidential

Pro forma Performance Bond – Demand Guarantee (for use with

Option X13)

(to be reproduced exactly as shown below on the letterhead of the Bank providing the Bond / Guarantee)

[Insert Contractor’s name and registered address] Bank reference No.

Date:

Dear Sirs,

Performance Bond – Demand Guarantee for [insert name of Contractor] required in terms of contract

[insert Contractor’s contract reference number or title]

In this Guarantee the following words and expressions shall have the following meanings: -

1.1 “Bank” means [Insert name of Bank], [●] Branch, Registration No. [●]

1.2 “Bank’s Address” means [Insert physical address of Bank]

1.3 “Contract” means the written agreement relating to providing the works, entered into

between the Employer and the Contractor, on or about the [●] day of

[●] 20[●] (Contract Reference No. [●]) as amended, varied, restated,

novated or substituted from time to time;

1.4 “Contractor” means [●] a company registered in accordance with the laws of [●] under

Registration No [●].

1.5 “Employer” means Airports Company South Africa SOC Limited a company registered in

accordance with the laws of the Republic of South Africa under

Registration Number 1993/004149/30

1.6 “Expiry Date” means the earlier of

the date that the Bank receives a notice from the Employer stating that

all amounts due from the Contractor as certified in terms of the

contract have been received by the Employer and that the Contractor

has fulfilled all his obligations under the Contract, or

the date that the Bank issues a replacement Bond for such lesser or

higher amount as may be required by the Employer.

1.7 “Guaranteed Sum” means 10% of contract value excluding VAT which must be submitted within

10 working days from notification of award

1.8 “works” means Replacement of Split Units at OR Tambo International Airport as

set out in the Section C3, Works Information

At the instance of the Contractor, we the undersigned ______________ and ______________, in our

respective capacities as _____________ and ___________ of the Bank, and duly authorized thereto, confirm

that we hold the Guaranteed Sum at the disposal of the Employer as security for the proper performance by

the Contractor of all of its obligations in terms of and arising from the Contract and hereby undertake to pay to

the Employer, on written demand from the Employer received prior to the Expiry Date, any sum or sums not

exceeding in total the Guaranteed Sum.

Forms of Sureties C1.3

Confidential

Confidential

A demand for payment under this guarantee shall be made in writing at the Bank’s address and shall:

be signed on behalf of the Employer by a director of the Employer;

state the amount claimed (“the Demand Amount’);

state that the Demand Amount is payable to the Employer in the circumstances contemplated in the Contract.

Notwithstanding the reference herein to the Contract the liability of the Bank in terms hereof is as principal and

not as surety and the Bank’s obligation/s to make payment:

is and shall be absolute provided demand is made in terms of this bond in all circumstances; and

is not, and shall not be construed to be, accessory or collateral on any basis whatsoever.

The Bank’s obligations in terms of this Guarantee:

• shall be restricted to the payment of money only and shall be limited to the maximum of the Guaranteed

Sum; and

• shall not be discharged and compliance with any demand for payment received by the Bank in terms

hereof shall not be delayed, by the fact that a dispute may exist between the Employer and the

Contractor.

The Employer shall be entitled to arrange its affairs with the Contractor in any manner which it sees fit, without

advising us and without affecting our liability under this Guarantee. This includes, without limitation, any

extensions, indulgences, release or compromise granted to the Contractor or any variation under or to the

Contract.

Should the Employer cede its rights against the Contractor to a third party where such cession is permitted

under the Contract, then the Employer shall be entitled to cede to such third party the rights of the Employer

under this Guarantee on written notification to the Bank of such cession.

This Guarantee:

shall expire on the Expiry Date until which time it is irrevocable;

is, save as provided for in Error! Reference source not found. above, personal to the Employer and is neither n

egotiable nor transferable;

shall be returned to the Bank upon the earlier of payment of the full Guaranteed Sum or expiry hereof;

shall be regarded as a liquid document for the purpose of obtaining a court order; and

shall be governed by and construed in accordance with the law of the Republic of South Africa and shall be

subject to the jurisdiction of the Courts of the Republic of South Africa.

will be invalid and unenforceable if any claim which arises or demand for payment is received after the Expiry

Date.

The Bank chooses domicilium citandi et executandi for all purposes in connection with this Guarantee at the

Bank’s Address.

Signed at on this day of 20__

For and on behalf of the Bank

Bank Signatories(s)

Name(s) (printed)

Forms of Sureties C1.3

Confidential

Confidential

Witness(s)

Bank’s seal or stamp

Forms of Sureties C1.3

Confidential

Confidential

C1.4 Insurance Schedule

Summary of Terms and other Matters Applicable to Employer Provided Insurance

Insurance clauses for capex projects

Section a: definitions

Landside refers to:

Areas of the airport before the security points; and

The restricted area beyond the security points but, within the perimeter of gatehouses,

passenger terminals and cargo buildings.

Airside refers to:

The Apron / maneuvering areas; and

Area within the airside boundary/perimeter fence, excluding the internal areas of the

passenger terminals, perimeter gatehouses and cargo buildings.

Insurance Clauses C1.4

Section b: insurance clauses

1. Insurance clauses for airside construction contracts where the

Awarded contract value does not exceed r150 million, and the

Instruction 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

Insurance Clauses C1.4

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 tunneling 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) Aviation 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 R2,000,000,000 in

respect of any one occurrence or series of occurrences consequent on or to one source or original cause.

This insurance is in respect of liability relating to aircrafts.

d) 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 limits 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

Insurance Clauses C1.4

contract

Experience

contract

Experience

contract

Experience

contract

Experience

Contract Data (Contractor) C1.2b

have been discovered on reasonable

inspection by the Employer or the

requiring any inspection not ordinarily

carried out by the Employer or the

undertake any inspection over and above the

reasonable inspection, this does not place a

greater responsibility on the Employer or the

Contents: No of

pages

Part C1 Agreements & Contract Data [1]

Part C2 Pricing Data [42]

Part C3 Scope of Work [46]

Part C4 Site Information [63]

(in words)

(The above amount should be calculated as per the guide provided in the Pricing Data [Subtotal F]. In the event of any conflict

between the amount above and the Pricing Data [Subtotal F], the former shall prevail.)

for the Contractor

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

Part C2: Pricing data and Price List

Part C3: Works information.

Part C4: Site information

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

C2.1, Pricing Assumptions.

11 Data for Option W1

W1.1 The Adjudicator is (Name) The person appointed jointly by the parties

from the list of adjudicators contained in the

C1.1 Form of Offer and Acceptance [3]

C1.1 Form of Offer and Acceptance

B-BBEE Minimum Level: Two

B-BBEE Details: Z21.3 A built environment CIDB registered firm contracted (either by Joint Venture, partnership or sub-

contracting) by the tenderer to perform a specified percentage of work stated in the Contract Data

under the guidance of the tenderer and which complies with the following:

Z21.3.1. Does not share equity holding with the tenderer; and

Z21.3.2. Is registered in terms of the Company’s Act, 2008 (Act No. ) or Close Corporation Act,

1984 (Act No. ); and

Z21.3.3. Is registered with the South African Revenue Service; and

Z21.3.4. Is at least an Exempted Micro Enterprise (EME) with a B-BBEE Status of “Level Two Contributor”,

as defined in the Amended Codes of Good Practice for measuring Broad- Based Black Economic

Empowerment (published in Government Gazette No. 36928 on 11 October 2013); or

Z21.3.5. Is at least a Qualifying Small Enterprise (QSE) with a B-BBEE Status of “Level Two Contributor”,

as defined in the Amended Codes of Good Practice for measuring Broad- Based Black Economic

Empowerment (published in Government Gazette No. 36928 on 11 October 2013); and

Z21.3.6. Is 50% or more black owned or 30% or more black women owned; and

Contract Data (Employer) C1.2a

Confidential

Z21.3.7. Has entered into a written relationship agreement of co-operation and assistance with the tenderer

for the duration of the contract.

The service provider shall achieve in the performance of the contract the contract skills

development goal established in the CIDB Standard for developing skills through infrastructure

contracts (August 2013)

The Employer shall have no contractual relationships with Subcontractors. However, if a

Subcontractor is found by the Employer to be incompetent, the Employer may request the Service

Provider either to provide a Subcontrac

Transformation imperatives: Contractor must subcontract at least 30% of work to Targeted Enterprises (defined as built environment firms with B-BBEE Level 2 or better, 50% black owned or 30% black women owned). Subcontracting to non-compliant enterprises limited to 25% of contract value. Penalties for failing to meet targets: 50% of shortfall value. Annual B-BBEE certificate required.

schedule

60.6 The method of measurement is The 6th edition of the Standard System of

measuring Building Works published by

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

and confirm such agreement in writing.

Contract Data (Employer) C1.2a

to the design, scope, and Works information that is 5% or more

Z19.2 The Project Manager requires the written consent of the Employer if an action will result in the

Completion Date being extended by more than 30 days.

Z20 Delegation

As stipulated by Section 37(2) of the Occupational Health and Safety Act No. as

amended the Contractor agrees to the following:

Contract Data (Employer) C1.2a

Z20.1 As part of this contract the Contractor acknowledge that it (mandatory) is an employer in its own

right with duties as prescribed in the Occupational Health and Safety Act No as amended

and agree to ensure that all work being performed, or Equipment, Plant and Materials being used,

are in accordance with the provisions of the said Act, and in particular with regard to the

Z21 Transformation Imperatives

Z21.1 The Service Provider shall enter into a contract (either through partnership, joint venture or sub-

contracting) with (a) Targeted Enterprise(s) to perform a minimum of 30% of work.

Z21.2 A Targeted Enterprise is a registered built environment firm contracted (either by Joint Venture,

partnership or sub-contracting) by the tenderer to perform a specified percentage of work stated in

the Contract Data under the guidance of the tenderer; or

Z21.3 A built environment CIDB registered firm contracted (either by Joint Venture, partnership or sub-

contracting) by the tenderer to perform a specified percentage of work stated in the Contract Data

under the guidance of the tenderer and which complies with the following:

Z21.3.1. Does not share equity holding with the tenderer; and

Z21.3.2. Is registered in terms of the Company’s Act, 2008 (Act No. ) or Close Corporation Act,

1984 (Act No. ); and

Z21.3.3. Is registered with the South African Revenue Service; and

Z21.3.4. Is at least an Exempted Micro Enterprise (EME) with a B-BBEE Status of “Level Two Contributor”,

as defined in the Amended Codes of Good Practice for measuring Broad- Based Black Economic

Empowerment (published in Government Gazette No. 36928 on 11 October 2013); or

Z21.3.5. Is at least a Qualifying Small Enterprise (QSE) with a B-BBEE Status of “Level Two Contributor”,

as defined in the Amended Codes of Good Practice for measuring Broad- Based Black Economic

Empowerment (published in Government Gazette No. 36928 on 11 October 2013); and

Z21.3.6. Is 50% or more black owned or 30% or more black women owned; and

Contract Data (Employer) C1.2a

development goal established in the CIDB Standard for developing skills through infrastructure

contracts (August 2013)

11.2 The working areas are See C3 ‘Works information’

24.1 The Contractor’s Key people are: CV’s to be appended to Resource Proposal (Annex F)

Part C1: Agreements & Contract Data

Contents: No of

pages

C1.1 Form of Offer and Acceptance [3]

[to be inserted from Returnable Documents at award

stage]

C1.2a Contract Data provided by the Employer [6]

C1.2b Contract Data provided by the Contractor [21]

[to be inserted from Returnable Documents at award

stage]

C1.3 Proforma Guarantees [24]

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

A: Priced contract with Activity schedule

dispute resolution Option W1: Dispute resolution procedure

and secondary Options

X2: Changes in the law

X5: Sectional Completion

X7: Delay damages

X13: Performance Bond

X16: Retention

X17: Low performance damages

X18: Limitation of liability

Z: Additional conditions of contract

of the NEC3 Engineering and Construction

Contract, April 2013

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

(Reg no: 1993/004149/30), a juristic person

incorporated in terms of the company laws

of the Republic of South Africa

80.1 These are additional Employer's risks 1. None

84.1 The Employer provides these Contract Work Insurance, Public Indemnity,

insurances from the Insurance Table Professional Indemnity and SASRIA. The

terms and other matters applicable to these

insurances provided by the Employer (and

to insurances generally) are detailed in the

insurance schedule attached as section

C1.4 to the contract (“the insurance

Schedule)

84.1 The Employer provides these The terms and other matters applicable to

additional insurances these insurances provided by the Employer

(and to insurances generally) are detailed in

the insurance schedule attached as section

C1.4 to the contract (“the insurance

Schedule)

84.2 The minimum limit of indemnity for As stated in C1.4

insurance in respect of loss of or

damage 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 stated in C1.4

insurance in respect of death of or

bodily injury to employees of the

X5 Sectional Completion Completion of installation, commissioning and

handover of each unit.

X7 Delay damages (but not if Option X5

is also used)

X7.1 Delay damages for Completion of Amount per day is 0.05% of the contract value,

each section of the works are up to the maximum of 10% of the contract value

X7.1 Delay damages for Completion of the Amount per day is 0.05% of the contract value,

whole of the works are up to the maximum of 10% of the contract value

X13 Performance bond

X13.1 The amount of the performance bond 5% of Contract value excluding VAT.

is

X16 Retention (not used with Option F)

X16.1 The retention percentage is 5%

X18 Limitation of liability

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

loss is limited to: including but not limited to loss of profit,

loss of income or loss of revenue

X18.2 For any one event, the Contractor’s Total of the losses incurred and/or repairs to the

liability to the Employer for loss of or damages caused

damage to the Employer’s property is

limited to:

X18.3 The Contractor’s liability for Defects Total of the losses incurred and/or repairs to the

damages caused due to his design which are not listed

on the Defects Certificate is limited to

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

Contractor’s risks

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 (i) 5 years after the defects date for latent

(ii) 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.

rectified by the Contractor at the Contractor’s own costs.

Z4 Extending the defects date:

Add the following as a new clause 46:

Z4.1 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.

Z4.2 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.

Z4.3 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.

Z5 Termination

Z5.1 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”.

Z6.1 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.

Z6.2 The Employer may cede and delegate its rights and obligations under this contract to any

person or entity.

Z7 Joint and several liability

Insert the following new clause as Option X18.6:

Z7.1 The Employer's liability to the Contractor for the Contractor's indirect or consequential loss is

limited to R0.00

Z7.2 Notwithstanding any other clause in this contract, any proceeds received from 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

Z8 Cession, delegation and assignment

Z8.1 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

Z8.2 The Employer may cede and delegate its rights and obligations under this contract to any

person or entity

Z9 Joint and several liability

Z9.1 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.

Z9.2 The Contractor shall, within 1 week of the Contract Date, notify the Project Manager and the

Z10.1.1 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;

Z10.1.2 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, .

Z10.2 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.

Z10.3 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.

Z11 Confidentiality

Z11.1 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

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

Z11.4 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

Z11.5 The Contractor ensures that all his Subcontractors abide by the undertakings in this clause.

Z12 Employer’s Step-in rights

Z12.1 If the Contractor defaults by failing to comply with his obligations and fails to remedy such

default within 2 weeks of the notification of the default by the Project Manager, the Employer,

without prejudice to his other rights, powers and remedies under the contract, may remedy the

default either himself or procure a third party (including any subcontractor or supplier of the

Contractor) to do so on his behalf. The reasonable costs of such remedial works shall be borne

by the Contractor

Z12.2 The Contractor co-operates with the Employer and facilitates and permits the use of all required

information, materials and other matter (including but not limited to documents and all other

drawings, CAD materials, data, software, models, plans, designs, programs, diagrams,

evaluations, materials, specifications, schedules, reports, calculations, manuals or other

documents or recorded information (electronic or otherwise) which have been or are at any time

prepared by or on behalf of the Contractor under the contract or otherwise for and/or in

connection with the works) and generally does all things required by the Project Manager to

achieve this end.

Z13 Liens and Encumbrances

Z13.1 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

Z14 Intellectual Property

Z14.1 Intellectual Property (“IP”) rights means all rights in and to any patent, design, copyright,

trademark, trade name, trade secret or other intellectual or industrial property right relating to

the Works.

Z14.2 IP rights remain vested in the originator and shall not be used for any reason whatsoever other

than carrying out the works.

Z14.3 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

Contract Data (Employer) C1.2a

Z14.4 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

Z14.5 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:

Z14.5.1 the Contractor’s design, manufacture, construction or execution of the Works

Z14.5.2 the use of the Contractor’s Equipment, or

Z14.5.3 the proper use of the Works.

Z14.6 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.

Z16 Dispute resolution:

Z16.1 Appointment of the

a dispute arises, from the Panel

of Adjudicators below. The Name Location Contact details

referring party nominates an (phone & e mail)

Adjudicator, which nomination is Adv. Ghandi Badela Gauten +27 11 282 3700

either accepted or rejected by the g [email protected]

other party. In the instance of a Mr. Errol Tate Pr. Durban +27 11 262 4001

rejection of the nominated Eng. [email protected]

Adjudicator, the referring Party Adv. Saleem Gauten +27 11 535-1800

refers the appointment deadlock Ebrahim g [email protected]

to the Chairman of the .za

Johannesburg Bar Council, who Mr. Sebe Msutwana Gauten +27 11 442 8555

appoints an Adjudicator listed in Pr. Eng. g [email protected]

the Panel of Adjudicators below Mr. Sam Amod Gauten [email protected]

g

The Parties appoint the Adv. Sias Ryneke Gauten 083 653 2281

Adjudicator under the NEC3 SC g [email protected]

Adjudicator’s Contract, April o.za

2013 Mr. Emeka Ogbugo Pretoria +27 12 349 2027

(Quantity Surveyor) [email protected]

Z16.2 Appointment of the Arbitrator

Contract Data (Employer) C1.2a

a dispute arises from the Panel

of Arbitrators below. The Name Location Contact details

referring party nominates an (phone & e mail)

Arbitrator, which nomination is Adv. Ghandi Badela Gauteng +27 11 282 3700

either accepted or rejected by [email protected]

the other party. In the instance of Mr. Errol Tate Pr. Durban +27 11 262 4001

a rejection of the nominated Eng. [email protected]

Arbitrator, the referring Party Adv. Saleem Gauteng +27 11 535-1800

refers the appointment deadlock Ebrahim [email protected].

to the Chairman of the za

Johannesburg Bar Council, who Mr. Sebe Msutwana Gauteng +27 11 442 8555

appoints an Arbitrator listed in Pr. Eng. [email protected]

the Panel of Arbitrators below Mr. Sam Amod Gauteng [email protected]

Adv. Sias Ryneke Gauteng 083 653 2281

SC [email protected]

o.za

Mr. Emeka Ogbugo Pretoria +27 12 349 2027

(Quantity Surveyor) [email protected]

Z17 Notification of a compensation event

Z17.1 Delete “eight weeks” in clause 61.3 and replace with “four weeks”. Delete the words “unless the

event arises from the Project Manager or the Supervisor giving an instruction, issuing a certificate,

changing an earlier decision or correcting an assumption.

Z18 BBBEE Certificate

Z18.1 The Contractor shall be expected to annually present a compliant BEE Certificate. Failure to do

adhere to these requirements shall be considered a material breach of the conditions of this

For use with the NEC3 Engineering & Construction Contract (June 2005)

The conditions of contract stated in the Contract Data Part 1 include the following Secondary Options:

Option X13: Performance Bond

Each of these secondary Options requires a bond or guarantee “in the form set out in the Works

Information”. Pro forma documents for these bonds and guarantees are provided here for convenience

but are to be treated as part of the Works Information.

Option X16: Retention (not used with Option F)

receives and accepts a Retention Money Guarantee exactly in the form stated he will instruct the Project

Manager not to assess any amount be retained in terms of secondary Option X16.

Pro forma Performance Bond – Demand Guarantee (for use with

Option X13)

(to be reproduced exactly as shown below on the letterhead of the Bank providing the Bond / Guarantee)

[Insert Contractor’s name and registered address] Bank reference No.

Date:

Performance Bond – Demand Guarantee for [insert name of Contractor] required in terms of contract

[insert Contractor’s contract reference number or title]

In this Guarantee the following words and expressions shall have the following meanings: -

1.1 “Bank” means [Insert name of Bank], [●] Branch, Registration No. [●]

1.2 “Bank’s Address” means [Insert physical address of Bank]

1.3 “Contract” means the written agreement relating to providing the works, entered into

between the Employer and the Contractor, on or about the [●] day of

[●] 20[●] (Contract Reference No. [●]) as amended, varied, restated,

novated or substituted from time to time;

1.4 “Contractor” means [●] a company registered in accordance with the laws of [●] under

Registration No [●].

1.5 “Employer” means Airports Company South Africa SOC Limited a company registered in

accordance with the laws of the Republic of South Africa under

Registration Number 1993/004149/30

1.6 “Expiry Date” means the earlier of

the date that the Bank receives a notice from the Employer stating that

all amounts due from the Contractor as certified in terms of the

contract have been received by the Employer and that the Contractor

has fulfilled all his obligations under the Contract, or

the date that the Bank issues a replacement Bond for such lesser or

higher amount as may be required by the Employer.

1.7 “Guaranteed Sum” means 10% of contract value excluding VAT which must be submitted within

10 working days from notification of award

1.8 “works” means Replacement of Split Units at OR Tambo International Airport as

set out in the Section C3, Works Information

At the instance of the Contractor, we the undersigned ______________ and ______________, in our

respective capacities as _____________ and ___________ of the Bank, and duly authorized thereto, confirm

that we hold the Guaranteed Sum at the disposal of the Employer as security for the proper performance by

the Contractor of all of its obligations in terms of and arising from the Contract and hereby undertake to pay to

the Employer, on written demand from the Employer received prior to the Expiry Date, any sum or sums not

exceeding in total the Guaranteed Sum.

Forms of Sureties C1.3

A demand for payment under this guarantee shall be made in writing at the Bank’s address and shall:

be signed on behalf of the Employer by a director of the Employer;

state the amount claimed (“the Demand Amount’);

state that the Demand Amount is payable to the Employer in the circumstances contemplated in the Contract.

not as surety and the Bank’s obligation/s to make payment:

is and shall be absolute provided demand is made in terms of this bond in all circumstances; and

is not, and shall not be construed to be, accessory or collateral on any basis whatsoever.

The Bank’s obligations in terms of this Guarantee:

• shall be restricted to the payment of money only and shall be limited to the maximum of the Guaranteed

Sum; and

• shall not be discharged and compliance with any demand for payment received by the Bank in terms

hereof shall not be delayed, by the fact that a dispute may exist between the Employer and the

advising us and without affecting our liability under this Guarantee. This includes, without limitation, any

extensions, indulgences, release or compromise granted to the Contractor or any variation under or to the

under the Contract, then the Employer shall be entitled to cede to such third party the rights of the Employer

under this Guarantee on written notification to the Bank of such cession.

shall expire on the Expiry Date until which time it is irrevocable;

is, save as provided for in Error! Reference source not found. above, personal to the Employer and is neither n

egotiable nor transferable;

shall be returned to the Bank upon the earlier of payment of the full Guaranteed Sum or expiry hereof;

shall be regarded as a liquid document for the purpose of obtaining a court order; and

shall be governed by and construed in accordance with the law of the Republic of South Africa and shall be

subject to the jurisdiction of the Courts of the Republic of South Africa.

will be invalid and unenforceable if any claim which arises or demand for payment is received after the Expiry

C1.4 Insurance Schedule

passenger terminals, perimeter gatehouses and cargo buildings.

Insurance Clauses C1.4

Section b: insurance clauses

Awarded contract value does not exceed r150 million, and the

Instruction period does not exceed 36 months, and the defects

Liability period does not exceed 24 months

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

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

This insurance contains the following limitations and warrantees;

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

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

Insurance Clauses C1.4

description whatsoever.

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

period of insurance.

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

c) Aviation 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 R2,000,000,000 in

respect of any one occurrence or series of occurrences consequent on or to one source or original cause.

d) 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 limits 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.

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.

Insurance Clauses C1.4