Consulting engineering services for the upgrade of kloppersbos/pyramid road from gravel to surfaced (community development project)

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Within 14 calendar days of the Form of Acceptance, the Service Provider must deliver proof of insurance, completed Form of Banking details, Tax Compliance Permission Declaration, proof of ITIS registration, OHS Specialist registration proof, and CVs/professional registration for additional resources.

The tenderer must be a Consulting Engineering Firm, which is defined as a natural person or legal entity providing independent technology-based intellectual services in the built, human, and natural environment, and not engaged in manufacturing or construction. The tenderer must be SARS compliant and have a valid B-BBEE certificate. If a Joint Venture is proposed, all partners must be eligible and provide required documentation. The tenderer must also be able to provide key personnel with the required professional registrations and experience as specified in the Scope of Work.

The document which defines the Employer’s objectives and requirements and specifies the Services

which must, or may, be provided under the Contract.

Service Provider

The contracting party named in the Contract Data who is employed by the Employer to perform the

Services described in the Contract, and legal successors to the Service Provider and legally permitted

assignees.

Services

The work to be performed by the Service Provider pursuant to the Contract as described in the Scope

of Work.

Sub-contractor

A person or body corporate who enters into a sub-contract with the Service Provider to perform part of

the Services.

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Targeted Enterprise

A Consulting Engineering Firm who is an EME (BEP)* or QSE (BEP)*, contracted by the Service Pro-

vider to perform a tendered percentage of work stated in the Contract Data under his guidance and

which complies with the following:

a) Is at least 51% owned by black people and

b) Has a B-BBEE status* of ‘level one or level two contributor’; and

c) does not share equity holding with the Service Provider; and

d) is registered in terms of the Company’s Act, 2008 (Act No. ) or Close Corporation Act,

1984 (Act No. ); and

e) is registered on the National Treasury’s Central Supplier Database (CSD).

• NOTE: All references to EME, QSE, B-BBEE status are in terms of the amended Construction

Sector Codes published in Notice in Government Gazette No 41287 on 1

December 2017.

Technical Proposal

The Key Persons proposed by the Service Provider to undertake the respective functions/duties as

defined under the Contract.

Works or Works Contract

That project or part of a project that the employer wishes to have delivered and for which the Service

Provider has been appointed for the performance of the services specified in this contract.

Youth

For purposes of this contract, Youth means persons between the ages of 18 (eighteen) and 35 (thirty-

five).

2. Interpretation

2.1 Unless inconsistent with the context, an expression which denotes:

a) any gender includes the other genders;

b) a natural person includes a juristic person and vice versa;

c) the singular includes the plural and vice versa.

2.2 The documents forming the Contract are to be taken as mutually explanatory of one another. For the

purposes of interpretation, the priority of documents shall be in accordance with the following sequence:

a) the Form of Acceptance

b) the Form of Offer

c) the Contract Data

d) the General Conditions of Contract

e) the Scope of Work

f) the Pricing Schedule and any other documents forming part of the Contract.

2.3 The clause headings shall not limit, alter or affect the meaning of the Contract.

3. General

3.1 Governing laws

“Law” means all national (or other spheres of Government) legislation, statutes, ordinances and other

laws including the South African Common Law, and regulations and by-laws of any legally constituted

public authority.

3.2 Change in legislation

If after the commencement of the Contract, the cost or duration of the Services is altered as a result of

changes in, or additions to, any statute, regulation or bye-law, or the requirements of any authority

having jurisdiction over any matter in respect of the Project, then the Contract Price and time for

completion shall be adjusted in order to reflect the impact of those changes, provided that, within 14

days of first having become aware of the change, the Service Provider furnished the Employer with

detailed justification for the adjustment to the Contract Price.

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3.3 Language

3.3.1 The language of the Contract and of all communications between the Parties shall be English.

3.3.2 All reports, recommendations and reports prepared by the Service Provider under the Contract

shall be in English.

3.4 Notices

Any notice, request, consent, or other communication made between the Parties pursuant to the Contract shall

be in writing and shall be deemed to have been made when delivered in person to an authorized representative

of the Party to whom the communication is addressed, or when delivered to such Party at the address stated

in the Contract Data, or one week after having been sent by registered post.

3.4.2 If the sender requires evidence of receipt, he shall state such requirement in his communication

and, wherever there is deadline for the receipt of the communication, he may demand evidence

of receipt of his communication. In any event, the sender shall take all the necessary measures

to ensure receipt of communications.

3.4.3 A Party may change its address for receipt of communications by giving the other Party 30 days

advance notice of such change.

3.5 Location

The Services shall be performed at such locations as are specified in the Contract Data, and where the

location of a particular task is not so specified, at such locations as the Employer may approve.

3.6 Publicity and publication

Unless otherwise agreed, the Service Provider shall not release public or media statements or publish

material related to the Services or Project within two (2) years of completion of the Services without the

written approval of the Employer, which approval shall not be unreasonably withheld.

3.7 Confidentiality

Both Parties shall keep all commercially sensitive information obtained by them in the context of the

Contract confidential and shall not divulge it without the written approval of the other Party except to the

extent strictly necessary to carry out obligations under this Contract or to comply with applicable laws.

3.8 Variations

3.8.1 The Employer may, without changing the objectives or fundamental scope of the Contract, order

variations to the Services or may request the Service Provider to submit proposals, including the

time and cost implications, for variations to the Services. No variation shall have any force or

effect unless reduced to writing and signed by both Parties.

3.8.2 The reasonable cost of preparation and submission of such proposals and the incorporation into

the Contract of any variations to the Services ordered by the Employer, including any change in

the Contract Price, shall be agreed in writing between the Service Provider and the Employer,

prior to the change being implemented.

3.8.3 Where a variation is necessitated by default or breach of Contract by the Service Provider, any

additional cost attributable to such variation shall be borne by the Service Provider.

3.9 Sole agreement

The Contract constitutes the sole agreement between the Parties for the performance of the Services

and no representation not contained therein shall be of any force or effect. No amendments will be of

any force or effect unless reduced to writing and signed by both Parties.

3.10 Indemnification

The Service Provider shall, at his own expense, indemnify, protect and defend the Employer, its agents

and employees, from and against all actions, claims, losses and damage arising from any wilful or

negligent act or omission by the Service Provider or his subcontractors in the performance of the

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Services, including any violation of legal provisions, or rights of others, in respect of patents, trademarks

and other forms of intellectual property such as copyrights.

3.11 Penalty

3.11.1 In the event that due to his negligence, or for reasons within his control, the Service Provider does

not perform the Services within the Period of Performance, the Employer shall without prejudice

to his other remedies under the Contract, be entitled to levy a penalty for every day or part thereof,

which shall elapse between the end of the period specified for performance, or an extended

Period of Performance, and the actual date of completion, at the rate and up to the maximum

amount stated in the Contract Data.

3.11.2 In the event that due to his negligence or for reasons within his control, the Service Provider does

not meet the specified target of work to be sublet stated in the Contract Data to the Targeted

Enterprise the Employer shall be entitled to levy a penalty as stated in the Contract Data.

3.11.3 In the event that due to his negligence or for reasons within his control, the Service Provider does

not disclose subcontracting arrangements the Employer may be entitled to levy a penalty as

stated in the Contract Data.

3.11.4 In the event that due to his negligence or for reasons within his control, the Service Provider does

not perform the service of capturing structures inventory and condition updates within the

specified period of time, the Employer shall be entitled to levy a penalty as stated in the Contract

Data.

3.11.5 In the event that the draft documentation and/or design is of sub-standard/poor quality, the

Employer shall be entitled to levy a penalty for the additional time spent by the Employer to correct

the documentation and/or design to the required acceptable standard at the hourly tariffs as

specified under Additional Duties.

3.11.6 If the Employer has become entitled to the maximum penalty amount referred to in 3.11.1, he may

after giving notice to the Service Provider:

a) terminate the Contract

b) complete the Services at the Service Provider’s cost.

3.12 Equipment and materials furnished by the Employer

3.12.1 Equipment and materials made available to the Service Provider by the Employer, or purchased by

the Service Provider with funds provided by the Employer for the performance of the Services shall be

the property of the Employer and shall be marked accordingly. Upon termination or expiration of the

Contract, the Service Provider shall make available to the Employer an inventory of such equipment

and materials and shall dispose of them in accordance with the Employer’s instructions.

3.12.2 Unless otherwise stated in the Contract Data, the Service Provider shall, at his own expense, insure

the equipment and materials referred to in 3.12.1 for their full replacement value.

3.13 Illegal and impossible requirements

The Service Provider shall notify the Employer immediately, should he become aware that the Contract

requires him to undertake anything which is illegal or impossible.

3.14 Programme

3.14.1 The Service Provider shall, within the time period set out in the Contract Data, submit to the

Employer a programme for the performance of the Services which shall, inter alia, include:

a) the order and timing of operations by the Service Provider and any actions required of the

Employer and Others;

b) the dates by which the Service Provider plans to complete work needed to allow the

Employer and Others to undertake work required of them; and

c) other information as required in terms of the Scope of Work or Contract Data.

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3.14.2 The Employer may, during the course of the Contract, request the Service Provider to amend the

programme. Where this is not practicable, the Service Provider shall advise the Employer

accordingly and advise him of alternative measures, if any, which might be taken.

3.14.3 The Service Provider shall regularly update the programme to reflect actual progress to date and

expected future progress.

3.15 Severability

If a court of competent jurisdiction holds that any provision of this Contract is severable by reason of it

being invalid, illegal, unlawful or unenforceable and as a consequence of which prevents the accom-

plishment of the purpose of this Contract, the Employer and the Service Provider shall meet and review

the matter to adopt means to fulfil the purpose of the Contract.

3.16 Waiver

No defence of a waiver of any of the provisions of this contract shall be effective unless it is expressly

stated in writing, by the Party against whom such defence is raised, to be a waiver of such provisions

and is communicated to the other Party in writing in accordance with the provisions of Clause 3.4.

4. Employer’s obligations

4.1 Information

4.1.1 The Employer shall timeously provide to the Service Provider, free of cost, all available infor-

mation and data in the Employer’s possession which may be required for the performance of the

Services.

4.1.2 The Employer shall provide the Service Provider with any assistance required in obtaining other

relevant information that the latter may require in order to perform the Services.

4.1.3 The Service Provider shall be entitled to rely on the accuracy and completeness of all information

furnished by or on behalf of the Employer.

4.2 Decisions

The Employer shall, within a reasonable time, give his decision on any matter properly referred to him

in writing by the Service Provider so as not to delay the performance of Services.

4.3 Assistance

The Employer shall co-operate with the Service Provider and shall not interfere with or obstruct the

proper performance of the Services. The Employer shall as soon as practicable:

4.3.1 authorise the Service Provider to act as his agent insofar as may be necessary for the perfor-

mance of the Services;

4.3.2 provide all relevant data, information, reports, correspondence and the like, which become

available;

4.3.3 procure the Service Provider’s ready access to premises, or sites, necessary for the performance

of the Services;

4.3.4 assist in the seeking of all approvals, licenses and permits from state, regional and municipal

authorities having jurisdiction over the Project, unless otherwise stated in the Contract Data;

4.3.5 designate in writing a person to act with his complete authority in giving instructions and receiving

communications on his behalf and interpreting and defining his policies and requirements in

regard to the Services.

4.4 Services of others

4.4.1 The Employer shall, at his own cost, engage such others as may be necessary for the execution

of work necessary for the completion of the Project, but not included in the Services.

4.4.2 The Employer shall not enter into an agreement or contract with others which describes any of

the duties and responsibilities of the Service Provider in terms of the Contract or which imposes

obligations on him, without first obtaining the Service Provider’s written agreement thereto.

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4.4.3 Where the provision of services by others in terms of Clause 4.4.1 is necessary for the proper

performance of the Services then the Employer shall ensure that such provision of services by

others is given in sufficient time so as to allow the Service Provider to proceed in accordance with

the programme. The Service Provider shall co-operate with the suppliers of such services but

shall not be responsible for them or their performance.

4.5 Notice of change by Employer

On becoming aware of any matter which will materially change, or has changed, the scope, cost or

timing of the Services, or on becoming aware of any defect or deficiency in the Services, the Employer

shall immediately advise the Service Provider thereof.

4.6 Issue of instructions

Where the Service Provider is required to administer the work or services of Others, or any contract or

agreement, on behalf of the Employer, then the Employer shall issue instructions related to such work,

services, contract or agreement only through the Service Provider.

4.7 Payment of Service Provider

The Employer shall pay the Service Provider the Contract Price in accordance with the provisions of the

Contract.

5. Service provider’s obligations

5.1 General

5.1.1 The Service Provider shall perform the Services in accordance with the Scope of Work with all

reasonable care, diligence and skill in accordance with generally accepted professional tech-

niques and standards and shall be responsible for breach of professional duty by reason of any

error, omission or neglect in connection with delivering the services.

5.1.2 Where the Services include the exercise of powers to certify, decide or otherwise exercise dis-

cretion in regard to a contract or agreement between the Employer and Others, then the Service

Provider shall act in respect of that contract or agreement as an independent professional.

5.1.3 If the Service Provider is a joint venture or consortium of two or more persons, the Service

Provider shall designate one person to act as leader with authority to bind the joint venture or

consortium. Neither the composition nor the constitution of the joint venture or consortium shall

be altered without the prior consent in writing of the Employer, which shall not be unreasonably

withheld.

5.1.4 Unless specifically instructed differently, the Service Provider is delegated as the Employer's

"Mandatary" in terms of the Occupational Health and Safety Act (Act no. ), and as the

Employer's Agent as defined in Construction Regulations 5(5), (6) and (7) of the said Act.

5.1.5 The Service Provider, if requested by the Employer, shall provide any plans and calculations for

checking by others.

5.1.6 All design calculations shall be kept and safeguarded for the duration of the insurance(s) required

in terms of Clause 5.4.1.

5.1.7 The Service Provider shall enter into a contract over the full contract duration (either through

partnership, joint venture or sub-contracting) with a Targeted Enterprise(s) to perform a per-

centage of work as stated in the Contract Data.

5.1.8 The Service Provider undertakes to pay the Targeted Enterprise(s) the full value due in each

interim fee claim. The Service Provider further undertakes to make payment within 30 (thirty) days

of presentation by the Service Provider of the interim fee claim to the Employer for payment, or

by the 30th of the month following that in which the Targeted Enterprise(s) completed the work,

whichever date is earlier.

5.2 Exercise of authority

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5.2.1 The Service Provider shall have no authority to relieve others appointed by the Employer to under-

take work on the Project of any of their duties, obligations, or responsibilities under their respective

agreements or contracts, unless expressly authorised by the Employer in response to an

application by the Service Provider in writing to do so.

5.2.2 Whenever necessary to enter upon land for the performance of the Contract the Service Provider

shall do so in accordance with the provisions of the SANRAL Act, (Act ) and shall in-

demnify the Employer from all costs arising from any transgression committed by the Service

Provider.

5.3 Designated representative

The Service Provider shall designate in writing a person to act as his representative and such person

shall have complete authority to receive instructions from and give information to the Employer on behalf

of the Service Provider.

5.4 Insurances to be taken out by the Service Provider

5.4.1 The Service Provider shall, at his own cost, unless otherwise agreed, take out and maintain in

force such insurance policies in respect of their own risks in performing the Services as are

stipulated in the Contract Data, subject to the approval of the Employer, which approved shall not

be unreasonably withheld.

5.4.2 The Service Provider shall, at the Employer’s request, provide evidence to the Employer showing

that the insurance required in terms of Clause 5.4.1 has been taken out with an insurance

company registered in the Republic of South Africa, or as otherwise approved by the Employer

and maintained in force.

5.5 Service Provider’s actions requiring Employer’s prior approval

The Service Provider shall obtain the Employer’s prior approval in writing before taking, inter alia, any

of the following actions:

a) appointing Subcontractors for the performance of any part of the Services,

b) appointing Key Persons not listed by name in the Contract Data.

c) any other action that may be specified in the Contract Data.

5.6 Co-operation with Others

If the Service Provider is required to perform the Services in co-operation with Others he may make

recommendations to the Employer in respect of the appointment of such Others. The Service Provider

shall, however, only be responsible for his own performance and the performance of Subcontractors

unless otherwise provided for.

5.7 Notice of change by Service Provider

On becoming aware of any matter which will materially change or has changed the scope, cost or timing

of the Services, the Service Provider shall give notice thereof to the Employer, save that the Service

Provider is empowered to make minor changes or variations within the overall programme or budget

and within such parameters as are defined by the Employer, provided that such changes are reported

timeously to the Employer.

5.8 Safeguarding the Employer’s data/property

5.8.1 Anything supplied by or paid by the Employer for the use of the Service Provider, shall be the

property of the Employer and, where applicable.

5.8.2 The Parties shall take reasonable precautions (each having regard to the nature of the other‘s

respective obligations under the Contract) to preserve the integrity of the Employer’s

data/property including appropriate back-up procedures unit completion of the services and/or

return of such data/property to the Employer.

5.8.3 In the event that the Employer’s data is corrupted or lost as a result of any default by the Service

Provider, the Employer shall at the Service Provider’s expense, have the option to:

• require the Service Provider to restore or procure the restoration of such data; or;

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• itself restore or procure restoration of such data.

5.9 Performance Security

Where required, the Service Provider shall obtain (at his cost) a Performance Security for proper

performance in the amount and currencies stated in the Contract Data. If an amount is not stated in the

Contract Data, this sub-clause shall not apply.

The Service Provider shall deliver the Performance Security to the Employer within 14 days of the date

of issue of the Letter of Acceptance. The Performance Security shall be issued by an insurance company

or bank registered or licensed as an insurance company or bank to do business in the Republic of South

Africa and approved by the Employer and having an office or banking facility in the Republic of South

Africa. The Performance Security shall be subject to approval by the Employer and shall be in the form

prescribed in the tender documents.

6. Conflicts of interest, corruption and fraud

6.1 Service Provider not to benefit from commissions, discounts, etc.

The remuneration of the Service Provider under the Contract shall constitute the Service Provider’s sole

remuneration in connection with the Contract, or the Services, and the Service Provider shall not accept

for his own benefit any trade commission, discount, or similar payment in connection with activities

pursuant to the Contract, or in the discharge of his obligations under the Contract, and shall use his best

efforts to ensure that the Personnel, any sub-contractors, and agents of either of them shall, similarly,

not receive any additional remuneration.

6.2 Royalties and the like

The Service Provider shall not have the benefit, whether directly or indirectly, of any royalty or of any

gratuity or commission in respect of any patented or protected article or process used in or for the

purposes of the Contract, or Project, unless so agreed by the Employer in writing.

6.3 Independence

The Service Provider shall refrain from entering into any relationship which could be perceived as

compromising his independence of judgment, or that of Subcontractors or Personnel.

6.4 Corruption and Fraud

6.4.1 The Service Provider shall neither:

(a) Offer or give or agree to give any person of the Employer any gift or consideration of any

kind as an inducement or reward for doing or forbearing to do or for having done or forebore

to do any act in relation to the obtaining or performance of this contract or any other contract

with the Employer or for showing or forbearing to show favour or disfavour to any person

in relation to this contract; nor

(b) Enter into this contract if in connection with its commission or a reward of any type has

been paid, offered or agreed to be paid to any person of the Employer by the Service

Provider or on his behalf or knowledge.

(c) The Service Provider shall immediately give notice to the Employer with full particulars in

the event that the Service Provider receives a request from any public official requesting

illicit payments.

(d) The Service Provider shall at the Employer’s request demonstrate that it adheres to a

documented code of conduct in respect to the prevention of corruption and bribery.

(e) The Service Provider declares that as the date of signature of the Agreement there are no

circumstances or matters that may give rise to a conflict of interest in the performance of

its obligations under the Agreement. The Service Provider shall inform the Employer

immediately if it becomes aware of any such circumstances or matters. If a conflict of

interest arises then the Parties shall agree, in good faith, on measures to manage such

conflict.

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6.4.2 In the event that the Employer, in good faith and on reasonable grounds, comes to the opinion,

that a breach of any of the provisions of Clause 6.4.1 has been perpetrated by the Service

Provider or anyone employed by him or acting on his behalf in relation to this contract or any other

agreement with the Employer, the Employer may:

i. summarily suspend the operation of this Contract by notice in writing to the Service

Provider, informing him of the Employer’s opinion and the grounds and reasons upon which

it is based, and calling upon the Service Provider to show cause, in writing, within fourteen

(14) days of receipt of the written notice why the Employer should not terminate this

Contract on the grounds of the alleged breach(es) of Clause 6.4.1 of this Contract;

ii. withhold all payments due;

iii. terminate this Contract by notice in writing to the Service Provider, if the Service Provider

fails to respond to the Employer’s written response, to satisfy the Employer that his opinion

is unfounded. Provided always that such termination shall not prejudice or affect any right

of action or remedy, which shall have accrued or shall accrue thereafter to the Employer

and provided also that the Employer may recover from the Service Provider such sum as

the Employer deems equivalent to the amount or value of any such gift, consideration or

commission.

6.4.3 In the event that the Employer, in good faith and on reasonable grounds, comes to the opinion

that any contract with a Government or public sector body has been or was obtained by the

Service Provider through actions that mutatis mutandis are similar in nature to those barred in

terms of Clause 6.4.2 by the Service Provider or by anyone employed by the Service Provider or

acting on the Service Provider’s behalf in relation to such Contract, the Employer may:

(a) summarily suspend the operation of this Contract by notice in writing to the Service

Provider, informing him of the Employer’s opinion and the grounds and reasons upon which

it is based, and calling upon the Service Provider to show cause, in writing within fourteen

(14) days of receipt of the written notice why the Employer should not terminate this

Contract on the grounds of the alleged breach(es) of Clause 6.4.1 of this contract;

(b) withholds all payments due

(c) terminate this Contract by notice in writing to the Service Provider, if the Service Provider

fails to respond to the Employer’s written notice within the prescribed time, or fails, in his

written response, to satisfy the Employer that this opinion is unfounded. Provided always

that such termination shall not prejudice or affect any right of action or remedy, which shall

have accrued or shall accrue thereafter to the Employer.

7. Service provider’s personnel

7.1 Provision of Personnel

7.1.1 The Service Provider shall provide appropriate Personnel for such time periods as required in

terms of the Contract and shall enter all data pertaining to Personnel including titles, job

descriptions, qualifications and estimated periods of engagement on the performance of the

Services in the Personnel Schedule.

7.1.2 The Services shall be performed by the Personnel listed in the Personnel Schedule for the periods

of time indicated therein. The Service Provider may, subject to the approval of the Employer,

make such adjustments to the data provided in terms of Clause 7.1.1 above as may be

appropriate to ensure the efficient performance of the Services, provided that the adjustments will

not cause payments to exceed any limit placed on the Contract Price.

7.1.3 The Service Provider shall:

a) forward to the Employer for approval, within 15 days of the award of the Contract, the

Personnel Schedule and a timetable for the placement of Personnel.

b) inform the Employer of the date of commencement and departure of each member of

Personnel during the course of the Project.

c) submit to the Employer for his approval a timely request for any proposed change to

Personnel, or timetables.

7.2 Staff and equipment

7.2.1 The Service Provider shall employ and provide all qualified and experienced personnel required

to perform the Services.

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7.2.2 Where required in terms of the Contract, the Service Provider shall provide Key Persons as listed

in the Contract Data to perform specific duties. If at any time, a particular Key Person cannot be

made available, the Service Provider may engage a replacement who is equally or better qualified

to perform the stated duty, subject to the Employer’s approval, which approval shall not be

unreasonably withheld.

7.2.3 Where the Service Provider proposes to utilise a person not named in the Personnel Schedule,

he shall submit the name, relevant qualifications and experience of the proposed replacement

person to the Employer for approval.

7.2.4 Where the fees for the Services are time-based, the fee payable for a person provided as a

replacement shall not exceed that which would have been payable to the person replaced.

7.2.5 Except in the case of replacement resulting from death or where the Employer requests a

replacement not provided for by the Contract, the Service Provider shall bear all additional costs

arising out of or incidental to such replacement.

7.2.6 The Service Provider shall take all measures necessary and shall provide all materials and

equipment necessary to enable Personnel to perform their duties in an efficient manner.

7.3 Working hours, overtime and leave

Where the fees for the Services are time-based, working hours, leave entitlement and holidays for

Personnel provided in terms of Clause 7 are to be as stated in the Contract Data, or, if not stated, to be

determined by the Service Provider. The Employer will not be responsible for overtime payments to

Personnel unless so specifically provided for in the Pricing Schedule.

8. Commencement, completion, modification, suspension and termination of the

Contract

8.1 Commencement

The effective date of the contract shall be the date of the Form of Acceptance. Contract shall come into

effect on the date that it is signed by both Parties or such later date as may be stated in the Contract

Data. The Service Provider shall commence the performance of the Services within thirty (30) days after

the date that the Contract becomes effective, or such date as may be specified in the Contract Data.

8.2 Completion

8.2.1 Unless terminated in terms of the Contract, or otherwise specified in the Contract Data, the Con-

tract shall be concluded when the Service Provider has completed all Deliverables in accordance

with the Scope of Work.

8.2.2 The Service Provider, may request an extension to the Period of Performance if he is or will be

delayed in completing the Contract by any of the following causes:

a) variations to Services ordered by the Employer.

b) failure of the Employer to fulfil his obligations under the Contract.

c) any delay in the performance of the Services which is not due to the Service Provider’s

default.

d) Force Majeure.

8.2.3 The Service Provider shall within 14 days of becoming aware that a delay may occur, notify the

Employer of his intention to make a request for the extension of the Period of Performance to

which he considers himself entitled and shall within 30 days thereafter deliver to the Employer full

and detailed particulars of the request, in order that it may be investigated at the time.

8.2.4 The Employer shall, within 30 days of receipt of a detailed request, grant such extension to the

Period of Performance as may be justified, either prospectively or retrospectively, or inform the

Service Provider that he is not entitled to an extension. Should the Service Provider find the

decision of the Employer to be unacceptable he shall, nevertheless, abide by such decision in the

performance of the services and the matter shall be dealt with as a dispute in terms of Clause 12.

8.3 Force Majeure

8.3.1 In this clause “Force Majeure” means an exceptional event or circumstance:

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(a) which is beyond party’s control,

(b) which such a party could not reasonably have provided against before entering into the

Contract,

(c) which, having arisen, such Party could not reasonably have avoided or overcome, and

(d) which is not substantially attributable to the other Party

Force Majeure may include, but is not limited to, exceptional events or circumstances of the kind

listed below;

(i) natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity

(ii) war, hostilities (whether war to be declared or not), invasion, act of foreign enemies,

(iii) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war,

(iv) riot, commotion, disorder, strike or lockout by persons other than the Service Provider’s

Personnel or other employees of the Service Provider and Sub-contractors,

An event or circumstance which is attributable to a wilful act, neglect or failure to take reasonable

precautions by the affected party, his employee’s agents, sub-contractors or others shall, under

no circumstances, be considered Force Majeure.

8.3.2 The failure of a Party to fulfil any of its obligations under the Contract shall not be considered to

be a breach of, or default under, this Contract insofar as such inability arises from an event of

Force Majeure, provided that the Party affected by such an event has taken all reasonable

precautions, due care and reasonable alternative measures in order to meet the terms and

conditions of this Contract, and has notified the other Party within 10 days of its occurrence and

within a reasonable time of its estimated duration and consequences. Failure to so notify shall

terminate that Party’s right to release from his obligations.

8.3.3 In the event that the performance of the Services has to be suspended on the grounds of Force

Majeure, the time for completion shall be extended by the extent of the delay plus a reasonable

period for the resumption of work or, if the speed of performing certain Services has to be reduced,

the time for their completion shall be extended as may be necessary in the circumstances.

8.3.4 During the period of his inability to perform the Services as a result of an event of Force Majeure,

the Service Provider shall be entitled to continue to be paid under the terms of the Contract and

shall be reimbursed for additional costs reasonably and necessarily incurred by him in

suspending, delaying and reactivating the performance of the Services.

8.3.5 If the Force Majeure event continues for more than 90 (ninety) days, either Party shall have the

right to terminate this Contract with immediate effect.

8.4 Termination

8.4.1 The Employer may in addition to his rights under sub-clauses 6.4.2, 6.4.3 and 10.5 terminate the

Contract by giving not less than thirty (30) days written notice thereof to the Service Provider after

the occurrence of any of the following events:

(a) if the Service Provider does not remedy a failure in the performance of his obligations under

the Contract within thirty (30) days after having been notified thereof, or within any further

period as the Employer may have subsequently approved in writing;

(b) if the Service Provider becomes insolvent or bankrupt;

(c) if, as the result of Force Majeure, the Service Provider is unable to perform a material

portion of the Services for a period of not less than sixty (60) days;

(d) Committing an offence in terms of clauses 6.1 and/or 6.4;

(e) if the Service Provider acts in such a way, under this contract or any other contract with the

Employer, that a statute relating to the combating of fraud, corruption, uncompetitive

practice and the like can be invoked; or

(f) if the Employer, at any time in its sole discretion determines that it no longer requires the

completion of the Service by the Service Provider.

(g) in the event that the directors of the Service Provider are found guilty by a Court of Law of

fraud charges against them, SANRAL reserves the right to terminate the contract and to

assert all legal recourse available to it.

Upon delivery of such notice by the Service Provider he shall immediately vacate the site and

deliver to the Employer all drawings, documents and papers relating to the Services and shall

within fourteen (14) days after the date of termination submit an account for the Services

satisfactorily performed prior to the date of notice. The Employer shall not be liable to the Service

C1-27

entirely without deviations or qualifications other than those stipulated in Form A4: Schedule of Deviations or

struction HSE Agent for the Construction Phase.

C1-5

(vi) Proof (copies of basic qualification, professional registration and CV) that other required

resources (additional design specialists other than Key Persons, and if applicable, assistants to

PL and DS) meet the minimum requirements in terms of professional registration and experience

as stated in the Scope of Works. These additional resources will be reserved on ITIS.

(vii) Copy of the Joint Venture Agreement. (Note to compiler: Delete if JV is not applicable)

7.2 Staff and equipment

7.2.1 The Service Provider shall employ and provide all qualified and experienced personnel required

to perform the Services.

C1-25

7.2.2 Where required in terms of the Contract, the Service Provider shall provide Key Persons as listed

in the Contract Data to perform specific duties. If at any time, a particular Key Person cannot be

made available, the Service Provider may engage a replacement who is equally or better qualified

to perform the stated duty, subject to the Employer’s approval, which approval shall not be

unreasonably withheld.

7.2.3 Where the Service Provider proposes to utilise a person not named in the Personnel Schedule,

he shall submit the name, relevant qualifications and experience of the proposed replacement

person to the Employer for approval.

7.2.4 Where the fees for the Services are time-based, the fee payable for a person provided as a

replacement shall not exceed that which would have been payable to the person replaced.

7.2.5 Except in the case of replacement resulting from death or where the Employer requests a

replacement not provided for by the Contract, the Service Provider shall bear all additional costs

arising out of or incidental to such replacement.

7.2.6 The Service Provider shall take all measures necessary and shall provide all materials and

equipment necessary to enable Personnel to perform their duties in an efficient manner.

7.3 Working hours, overtime and leave

Data that establishes the criteria and assumptions that were taken into account when developing the

Contract Price and the record of the components that make up of the Contract Price.

Project

The project named in the Contract Data for which the Services are to be provided.

Public Official

a) Any official or employee of any government department and/or state-owned entity;

b) Any person performing a public function;

c) Any official or employee of a public international organisation including without limitation donor or

funding agencies or the Employer;

d) Any candidate for political office; or

e) Any political party or an official of a political party.

Qse

QSE is a qualifying small business enterprise in terms of a code of good practice on black economic

empowerment issued in terms of section 9(1) of the Broad-Based Black Economic Empowerment Act,

2003 (Act No. ).

The offered total of the prices (inclusive of value added tax) brought forward

From part c2.3: Pricing schedule summary is

..............................................................................................................................................................................

............................................................................................................................................................. (in words)

(R.......................................................... in figures)

above exists, the total in the Pricing Schedule Summary shall apply.

this form and in the contract that is comprised of:

Part C1: Agreements and Contract Data (including this form of acceptance),

Part C2: Pricing Data,

Part C3: Scope of the Work,

Part C4: Site Information and

Part C5: Annexures

together with issued drawings and other documents, or parts thereof, which may be incorporated by

reference into Parts C1 to C5 listed above. Proforma

2.1 Unless inconsistent with the context, an expression which denotes:

a) any gender includes the other genders;

b) a natural person includes a juristic person and vice versa;

c) the singular includes the plural and vice versa.

2.2 The documents forming the Contract are to be taken as mutually explanatory of one another. For the

purposes of interpretation, the priority of documents shall be in accordance with the following sequence:

a) the Form of Acceptance

b) the Form of Offer

c) the Contract Data

d) the General Conditions of Contract

e) the Scope of Work

f) the Pricing Schedule and any other documents forming part of the Contract.

2.3 The clause headings shall not limit, alter or affect the meaning of the Contract.

Bid Bond: FORM OF GUARANTEE ............................................................................................. C1-40

C1.3.2 Agreement in terms of the occupational health and safety act 1993

(Act NO ) and construction regulations 2014 ...................... C1-42

Notes to tenderer

1. Should a tenderer wish to of

Tax compliance permission declaration

Tax Compliance Permission Declaration which is attached hereto (Form C

Tax Compliance Status (TCS) system to verify and continuously track the tax compliance status of all

tax compliance status on an ongoing basis for the contract term

tax compliance status to the Employer

CSD Registration number CSD unique code

CSD Reports

CSD Report (use the proforma

CSD Report

Central Supplier Database (CSD) Report

Central Supplier Database (CSD)

Joint Venture Agreement

Income Tax Number Vat Registration number

1. Full Central Supplier Database (CSD) Report.
2. If a Joint Venture is registered, provide all JV partners CSD Reports.
3. An indemnity letter on your letterhead stating your bank details as per CSD Report (use the proforma

B-BBEE Minimum Level: one

B-BBEE Details: ...............................................................................................................................

............................................................................................................................................................. (in words)

(R.......................................................... in figures)

I/we confirm that if any difference between the total of the Pricing Schedule Summary and the amounts stated

above exists, the total in the Pricing Schedule Summary shall apply.

B. Preference claimed

I/we claim the following B-BBEE contributor status level .......... as per Returnable Schedule Form D1:

Tenderer’s B-BBEE Verification Certificate subject to Tender Data C.3.11.8. In the event of any difference

between the above stated status level and the Verification Certificate attached to Form D1, the Verification

Certificate shall apply.

You may accept this offer by signing and returning to the tenderer one copy of the acceptance part of the forms

of offer and acceptance before the end of the period of validity stated in the tender data, (or at the end of any

agreed extension thereof), whereupon the tenderer becomes the party named as the Service Provider in the

conditions of contract identified in the contract data.

Notwithstanding anything contained in a covering letter to this tender, I/we declare this offer is submitted

entirely without deviations or qualifications other than those stipulated in Form A4: Schedule of Deviations or

Qualifications by the tenderer and that it is made free from any fraud, corruption and misrepresentation.

Yours faithfully

C1-3

Signature: .................................................................... Date: ....................................................

C1.1 Forms of offer and acceptance .................................................................... C1-3

C1.1.1 FORM OF OFFER (Incorporating SBD7) ...................................................................... C1-3

C1.1.2 FORM OF ACCEPTANCE (Incorporating SBD7) .......................................................... C1-5

C1.1.3 Appendix to form of acceptance ................................................................... C1-8

C1.1.4 Form of banking details ..................................................................................... C1-9

C1.1.5 Tax compliance permission declaration ................................................... C1-13

C1.2 Contract data ...................................................................................................... C1-14

C1.2.1 Conditions of contract ................................................................................... C1-14

C1.2.2 Contract data: information provided by the employer .................... C1-34

C1.2.3 Contract data: information provided by the tenderer .................... C1-38

C1.3 Other standard forms ..................................................................................... C1-40

C1.3.1 Form of guarantee ............................................................................................. C1-40

C1.3.2 Agreement in terms of the occupational health and safety act 1993

(Act NO ) and construction regulations 2014 ...................... C1-42

agreed by us during the process of offer and acceptance shall not be valid unless contained in the

appended schedule of deviations. (If no deviation state “There are no deviations, qualifications or

changes to the documents). Addenda issued during the tender period are deemed not to be deviations

to the tender documents and schedules.

5. Notwithstanding the need to agree the mandate required by Section 37 of the Occupational Health and

Safety Act (Act ) a proforma of which is attached for your reference, we hereby appoint you

as our Agent in terms of Regulation 5(5) of the Construction Regulations, GNR .

6. In terms of the Employer’s Supply Chain Management (SCM) Policy for Infrastructure Procurement and

Signature: .................................................................... Date: ..................................................................

Name (in capitals): .....................................................................................................................................

Signature: .................................................................... Date: ..................................................................

Name (in capitals): .....................................................................................................................................

AUTHORITY TO ACT: SANRAL’s Delegation of Powers 2.4.1.2

Note to compiler: Delegated authority (SANRAL)

C1-7

C1.1.3 Appendix to form of acceptance

between the issue of the tender documents and the receipt by the tenderer of a completed signed copy of this

agreement shall have any meaning or effect in the contract between the parties arising from this agreement.

(Note to compiler: In the event that an alternative offer has been accepted by the Employer, the various

elements of the alternative offer must be listed in this appendix)

C1-8

C1.1.4 Form of banking details

1. The legislated Standard Conditions of Contract for Professional Services (as published and

amended from time to time by the Construction Industry Development Board) are included

together with SANRAL’s particular conditions of contract where the former is shown in standard

format and SANRAL’s amendments (i.e. particular conditions) shown in italics. SANRAL’s

particular conditions of contract are shown in italics as amending clauses of the Standard

A Consulting Engineering Firm who is an EME (BEP)* or QSE (BEP)*, contracted by the Service Pro-

vider to perform a tendered percentage of work stated in the Contract Data under his guidance and

which complies with the following:

a) Is at least 51% owned by black people and

b) Has a B-BBEE status* of ‘level one or level two contributor’; and

c) does not share equity holding with the Service Provider; and

d) is registered in terms of the Company’s Act, 2008 (Act No. ) or Close Corporation Act,

1984 (Act No. ); and

e) is registered on the National Treasury’s Central Supplier Database (CSD).

• NOTE: All references to EME, QSE, B-BBEE status are in terms of the amended Construction

Sector Codes published in Notice in Government Gazette No 41287 on 1

December 2017.

changes in, or additions to, any statute, regulation or bye-law, or the requirements of any authority

having jurisdiction over any matter in respect of the Project, then the Contract Price and time for

completion shall be adjusted in order to reflect the impact of those changes, provided that, within 14

days of first having become aware of the change, the Service Provider furnished the Employer with

detailed justification for the adjustment to the Contract Price.

C1-18

3.3 Language

3.3.1 The language of the Contract and of all communications between the Parties shall be English.

3.3.2 All reports, recommendations and reports prepared by the Service Provider under the Contract

shall be in English.

3.4 Notices

4.1.2 The Employer shall provide the Service Provider with any assistance required in obtaining other

relevant information that the latter may require in order to perform the Services.

4.1.3 The Service Provider shall be entitled to rely on the accuracy and completeness of all information

furnished by or on behalf of the Employer.

4.2 Decisions

consortium. Neither the composition nor the constitution of the joint venture or consortium shall

be altered without the prior consent in writing of the Employer, which shall not be unreasonably

withheld.

5.1.4 Unless specifically instructed differently, the Service Provider is delegated as the Employer's

"Mandatary" in terms of the Occupational Health and Safety Act (Act no. ), and as the

Employer's Agent as defined in Construction Regulations 5(5), (6) and (7) of the said Act.

5.1.5 The Service Provider, if requested by the Employer, shall provide any plans and calculations for

checking by others.

5.1.6 All design calculations shall be kept and safeguarded for the duration of the insurance(s) required

in terms of Clause 5.4.1.

5.1.7 The Service Provider shall enter into a contract over the full contract duration (either through

partnership, joint venture or sub-contracting) with a Targeted Enterprise(s) to perform a per-

centage of work as stated in the Contract Data.

5.1.8 The Service Provider undertakes to pay the Targeted Enterprise(s) the full value due in each

interim fee claim. The Service Provider further undertakes to make payment within 30 (thirty) days

of presentation by the Service Provider of the interim fee claim to the Employer for payment, or

by the 30th of the month following that in which the Targeted Enterprise(s) completed the work,

whichever date is earlier.

5.2 Exercise of authority

C1-22

5.2.1 The Service Provider shall have no authority to relieve others appointed by the Employer to under-

take work on the Project of any of their duties, obligations, or responsibilities under their respective

agreements or contracts, unless expressly authorised by the Employer in response to an

application by the Service Provider in writing to do so.

5.2.2 Whenever necessary to enter upon land for the performance of the Contract the Service Provider

shall do so in accordance with the provisions of the SANRAL Act, (Act ) and shall in-

demnify the Employer from all costs arising from any transgression committed by the Service

Specific data, which together with these General Conditions of Contract, collectively describe the risks,

liabilities and obligations of the contracting Parties and the procedures for the administration of the

contract.

Contract Price

The price to be paid for the performance of the Services in accordance with the Pricing Data.

Day

A calendar day.

Defect

A part of the Services, as performed, which does not comply with the requirements of the Contract.

Deliverable

Any measurable, tangible, verifiable outcome, result or item that must be produced or completed.

Eme

EME is an exempted micro enterprise in terms of a code of good practice on black economic empower-

ment issued in terms of section 9(1) of the Broad-Based Black Economic Empowerment Act, 2003 (Act

No. ).

Employer

The contracting party named in the Contract who employs the Service Provider.

Engineer

The natural or juristic person, partnership, Incorporated Company, Proprietary Limited Company or

Close Corporation appointed in writing by the Employer for the construction monitoring and management

of the engineering Works undertaken by the Contractor.

C1-16

Force Majeure

“For the purpose of this Contract the expression ‘Force Majeure’ shall mean an event or circumstance

described in clause 8.3.1.

Key Persons

Persons who are named as such in the Contract Data who will be engaged in the performance of the

Services.

Others

Persons or organizations who are not the Employer, the Service Provider or any employee, subcontractor, or supplier of the Service Provider.

Parties

The Employer and the Service Provider.

People with Disabilities

People with Disabilities has the meaning assigned to it in section 1 of the Employment Equity Act, 1998

(Act No. ).

Period of Performance

The period within which the Services are to be performed and completed.

Personnel

Persons hired by the Service Provider as employees and assigned to the performance of the Services

or any part thereof.

Personnel Schedule

A schedule naming all personnel and key persons.

committees:

(i) Project Document Review Committee and

(ii) Bid Evaluation Committee (BEC) (Please note that this will be on another SANRAL project).

7. A SARS compliance check has been done on you and you are found to be (select: compliant or non-

compliant). (Note to compiler: check SARS website for compliance. If not compliant add the following

sentence: Within 7 (seven) working days of the date of this Form of Acceptance, you shall provide proof

that you are SARS compliant. Failure to fulfil this obligation shall constitute a repudiation of this

agreement.)

8. Within 14 calendar days of the date of this Form of Acceptance (including the schedule of deviations if

any) you shall deliver to us:

(i) Proof of insurance in terms of the information provided in the contract data and clause 5.4 of the

agree to indemnify SANRAL in full against all consequences, liabilities of any kind whatsoever directly arising

from or relating to the said request. This shall include but not limited to any incorrect information/ details

provided by us.

We further confirm that the below are ............................................ ’s correct bank account details, as per the

attached CSD Report:

Account Name: ....................................................................................................................................................

Bank: ....................................................................................................................................................Branch Name: ....................................................................................................................................................Proforma

Branch Code: ....................................................................................................................................................

Account No: ....................................................................................................................................................

Table of contents . Definitions ................................................................................................................... C1-16

2. Interpretation ........................................................................................................... C1-18

3. General ......................................................................................................................... C1-18

3.1 Governing laws ......................................................................................................... C1-18

3.2 Change in legislation ............................................................................................. C1-18

3.3 Language ...................................................................................................................... C1-19

3.4 Notices .......................................................................................................................... C1-19

3.5 Location ........................................................................................................................ C1-19

3.6 Publicity and publication ...................................................................................... C1-19

3.7 Confidentiality .......................................................................................................... C1-19

3.8 Variations .................................................................................................................... C1-19

3.9 Sole agreement ......................................................................................................... C1-19

3.10 Indemnification .......................................................................................................... C1-19

3.11 Penalty .......................................................................................................................... C1-20

3.12 Equipment and materials furnished by the employer ............................. C1-20

3.13 Illegal and impossible requirements .............................................................. C1-20

3.14 Programme .................................................................................................................. C1-20

3.15 Severability ................................................................................................................. C1-21

3.16 Waiver ............................................................................................................................ C1-21

4. Employer’s obligations ......................................................................................... C1-21

4.1 Information ................................................................................................................. C1-21

4.2 Decisions ...................................................................................................................... C1-21

4.3 Assistance ................................................................................................................... C1-21

4.4 Services of others .................................................................................................. C1-21

4.5 Notice of change by employer ........................................................................... C1-22

4.6 Issue of instructions ............................................................................................. C1-22

4.7 Payment of service provider .............................................................................. C1-22

5. Service provider’s obligations .......................................................................... C1-22

5.1 General ......................................................................................................................... C1-22

5.2 Exercise of authority ............................................................................................ C1-22

5.3 Designated representative ................................................................................. C1-23

5.4 Insurances to be taken out by the service provider .............................. C1-23

5.5 Service provider’s actions requiring employer’s prior approval ... C1-23

5.6 Co-operation with others .................................................................................... C1-23

C1-14

5.7 Notice of change by service provider ........................................................... C1-23

5.8 Safeguarding the employer’s data/property ............................................. C1-23

5.9 Performance security ........................................................................................... C1-24

6. Conflicts of interest, corruption and fraud ............................................ C1-24

6.1 Service provider not to benefit from commissions, discounts, ETC.C1-24

6.2 Royalties and the like ............................................................................................ C1-24

6.3 Independence .............................................................................................................. C1-24

6.4 Corruption and fraud ............................................................................................ C1-24

7. Service provider’s personnel ............................................................................ C1-25

7.1 Provision of personnel ......................................................................................... C1-25

7.2 Staff and equipment ................................................................................................ C1-25

7.3 Working hours, overtime and leave ................................................................ C1-26

The contract .............................................................................................................. C1-26

8.1 Commencement ........................................................................................................... C1-26

8.2 Completion .................................................................................................................. C1-26

8.3 Force majeure ........................................................................................................... C1-26

8.4 Termination ................................................................................................................. C1-27

8.5 Suspension ................................................................................................................... C1-28

8.6 Rights and liabilities of the parties ................................................................ C1-28

9. Ownership of documents and copyright ...................................................... C1-28

10. Succession and assignment ................................................................................. C1-29

11. Sub-contracting ....................................................................................................... C1-29

12. Resolution of disputes .......................................................................................... C1-30

12.1 Settlement .................................................................................................................. C1-30

12.2 Mediation ...................................................................................................................... C1-30

12.3 Adjudication ................................................................................................................ C1-30

12.4 Arbitration .................................................................................................................. C1-31

13. Liability .......................................................................................................................... C1-31

13.1 Liability of the service provider ....................................................................... C1-31

13.2 Liability of the employer ...................................................................................... C1-31

13.3 Compensation ............................................................................................................. C1-31

13.4 Duration of liability ................................................................................................ C1-32

13.5 Limit of compensation ............................................................................................. C1-32

13.6 Indemnity by the employer ................................................................................... C1-32

13.7 Exceptions ................................................................................................................... C1-32

14. Remuneration and reimbursement of service provider ......................... C1-32

C1-15

“For the purpose of this Contract the expression ‘Force Majeure’ shall mean an event or circumstance

described in clause 8.3.1.

material related to the Services or Project within two (2) years of completion of the Services without the

written approval of the Employer, which approval shall not be unreasonably withheld.

3.7 Confidentiality

extent strictly necessary to carry out obligations under this Contract or to comply with applicable laws.

3.8 Variations

3.8.1 The Employer may, without changing the objectives or fundamental scope of the Contract, order

variations to the Services or may request the Service Provider to submit proposals, including the

time and cost implications, for variations to the Services. No variation shall have any force or

effect unless reduced to writing and signed by both Parties.

3.8.2 The reasonable cost of preparation and submission of such proposals and the incorporation into

the Contract of any variations to the Services ordered by the Employer, including any change in

the Contract Price, shall be agreed in writing between the Service Provider and the Employer,

prior to the change being implemented.

3.8.3 Where a variation is necessitated by default or breach of Contract by the Service Provider, any

additional cost attributable to such variation shall be borne by the Service Provider.

3.9 Sole agreement

and other forms of intellectual property such as copyrights.

3.11 Penalty

3.11.1 In the event that due to his negligence, or for reasons within his control, the Service Provider does

not perform the Services within the Period of Performance, the Employer shall without prejudice

to his other remedies under the Contract, be entitled to levy a penalty for every day or part thereof,

which shall elapse between the end of the period specified for performance, or an extended

the documentation and/or design to the required acceptable standard at the hourly tariffs as

specified under Additional Duties.

3.11.6 If the Employer has become entitled to the maximum penalty amount referred to in 3.11.1, he may

after giving notice to the Service Provider:

a) terminate the Contract

b) complete the Services at the Service Provider’s cost.

3.12 Equipment and materials furnished by the Employer

3.12.1 Equipment and materials made available to the Service Provider by the Employer, or purchased by

the Service Provider with funds provided by the Employer for the performance of the Services shall be

the property of the Employer and shall be marked accordingly. Upon termination or expiration of the

5. Service provider’s obligations

5.1 General

5.1.1 The Service Provider shall perform the Services in accordance with the Scope of Work with all

reasonable care, diligence and skill in accordance with generally accepted professional tech-

niques and standards and shall be responsible for breach of professional duty by reason of any

error, omission or neglect in connection with delivering the services.

5.1.2 Where the Services include the exercise of powers to certify, decide or otherwise exercise dis-

cretion in regard to a contract or agreement between the Employer and Others, then the Service

shall have complete authority to receive instructions from and give information to the Employer on behalf

of the Service Provider.

5.4 Insurances to be taken out by the Service Provider

5.4.1 The Service Provider shall, at his own cost, unless otherwise agreed, take out and maintain in

force such insurance policies in respect of their own risks in performing the Services as are

stipulated in the Contract Data, subject to the approval of the Employer, which approved shall not

be unreasonably withheld.

5.4.2 The Service Provider shall, at the Employer’s request, provide evidence to the Employer showing

that the insurance required in terms of Clause 5.4.1 has been taken out with an insurance

company registered in the Republic of South Africa, or as otherwise approved by the Employer

and maintained in force.

5.5 Service Provider’s actions requiring Employer’s prior approval

The Service Provider shall obtain the Employer’s prior approval in writing before taking, inter alia, any

of the following actions:

a) appointing Subcontractors for the performance of any part of the Services,

b) appointing Key Persons not listed by name in the Contract Data.

c) any other action that may be specified in the Contract Data.

5.6 Co-operation with Others

The Service Provider shall deliver the Performance Security to the Employer within 14 days of the date

of issue of the Letter of Acceptance. The Performance Security shall be issued by an insurance company

or bank registered or licensed as an insurance company or bank to do business in the Republic of South

(c) The Service Provider shall immediately give notice to the Employer with full particulars in

the event that the Service Provider receives a request from any public official requesting

illicit payments.

(d) The Service Provider shall at the Employer’s request demonstrate that it adheres to a

documented code of conduct in respect to the prevention of corruption and bribery.

(e) The Service Provider declares that as the date of signature of the Agreement there are no

circumstances or matters that may give rise to a conflict of interest in the performance of

its obligations under the Agreement. The Service Provider shall inform the Employer

immediately if it becomes aware of any such circumstances or matters. If a conflict of

interest arises then the Parties shall agree, in good faith, on measures to manage such

conflict.

C1-24

6.4.2 In the event that the Employer, in good faith and on reasonable grounds, comes to the opinion,

that a breach of any of the provisions of Clause 6.4.1 has been perpetrated by the Service

agreement with the Employer, the Employer may:

i. summarily suspend the operation of this Contract by notice in writing to the Service

Provider, informing him of the Employer’s opinion and the grounds and reasons upon which

it is based, and calling upon the Service Provider to show cause, in writing, within fourteen

(14) days of receipt of the written notice why the Employer should not terminate this

Contract on the grounds of the alleged breach(es) of Clause 6.4.1 of this Contract;

ii. withhold all payments due;

iii. terminate this Contract by notice in writing to the Service Provider, if the Service Provider

fails to respond to the Employer’s written response, to satisfy the Employer that his opinion

is unfounded. Provided always that such termination shall not prejudice or affect any right

of action or remedy, which shall have accrued or shall accrue thereafter to the Employer

and provided also that the Employer may recover from the Service Provider such sum as

the Employer deems equivalent to the amount or value of any such gift, consideration or

commission.

6.4.3 In the event that the Employer, in good faith and on reasonable grounds, comes to the opinion

that any contract with a Government or public sector body has been or was obtained by the

terms of Clause 6.4.2 by the Service Provider or by anyone employed by the Service Provider or

acting on the Service Provider’s behalf in relation to such Contract, the Employer may:

(a) summarily suspend the operation of this Contract by notice in writing to the Service

Provider, informing him of the Employer’s opinion and the grounds and reasons upon which

it is based, and calling upon the Service Provider to show cause, in writing within fourteen

(14) days of receipt of the written notice why the Employer should not terminate this

Contract on the grounds of the alleged breach(es) of Clause 6.4.1 of this contract;

(b) withholds all payments due

(c) terminate this Contract by notice in writing to the Service Provider, if the Service Provider

fails to respond to the Employer’s written notice within the prescribed time, or fails, in his

written response, to satisfy the Employer that this opinion is unfounded. Provided always

that such termination shall not prejudice or affect any right of action or remedy, which shall

have accrued or shall accrue thereafter to the Employer.

7. Service provider’s personnel

7.1 Provision of Personnel

7.1.1 The Service Provider shall provide appropriate Personnel for such time periods as required in

terms of the Contract and shall enter all data pertaining to Personnel including titles, job

descriptions, qualifications and estimated periods of engagement on the performance of the

effect on the date that it is signed by both Parties or such later date as may be stated in the Contract

Data. The Service Provider shall commence the performance of the Services within thirty (30) days after

the date that the Contract becomes effective, or such date as may be specified in the Contract Data.

8.2 Completion

8.2.1 Unless terminated in terms of the Contract, or otherwise specified in the Contract Data, the Con-

tract shall be concluded when the Service Provider has completed all Deliverables in accordance

with the Scope of Work.

8.2.2 The Service Provider, may request an extension to the Period of Performance if he is or will be

delayed in completing the Contract by any of the following causes:

a) variations to Services ordered by the Employer.

b) failure of the Employer to fulfil his obligations under the Contract.

c) any delay in the performance of the Services which is not due to the Service Provider’s

default.

d) Force Majeure.

8.2.3 The Service Provider shall within 14 days of becoming aware that a delay may occur, notify the

decision of the Employer to be unacceptable he shall, nevertheless, abide by such decision in the

performance of the services and the matter shall be dealt with as a dispute in terms of Clause 12.

8.3 Force Majeure

8.3.1 In this clause “Force Majeure” means an exceptional event or circumstance:

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(a) which is beyond party’s control,

(b) which such a party could not reasonably have provided against before entering into the

precautions by the affected party, his employee’s agents, sub-contractors or others shall, under

no circumstances, be considered Force Majeure.

8.3.2 The failure of a Party to fulfil any of its obligations under the Contract shall not be considered to

be a breach of, or default under, this Contract insofar as such inability arises from an event of

period for the resumption of work or, if the speed of performing certain Services has to be reduced,

the time for their completion shall be extended as may be necessary in the circumstances.

8.3.4 During the period of his inability to perform the Services as a result of an event of Force Majeure,

the Service Provider shall be entitled to continue to be paid under the terms of the Contract and

shall be reimbursed for additional costs reasonably and necessarily incurred by him in

suspending, delaying and reactivating the performance of the Services.

8.3.5 If the Force Majeure event continues for more than 90 (ninety) days, either Party shall have the

right to terminate this Contract with immediate effect.

8.4 Termination

8.4.1 The Employer may in addition to his rights under sub-clauses 6.4.2, 6.4.3 and 10.5 terminate the

Contract by giving not less than thirty (30) days written notice thereof to the Service Provider after

the occurrence of any of the following events:

(a) if the Service Provider does not remedy a failure in the performance of his obligations under

the Contract within thirty (30) days after having been notified thereof, or within any further

period as the Employer may have subsequently approved in writing;

(b) if the Service Provider becomes insolvent or bankrupt;

(c) if, as the result of Force Majeure, the Service Provider is unable to perform a material

portion of the Services for a period of not less than sixty (60) days;

(d) Committing an offence in terms of clauses 6.1 and/or 6.4;

(e) if the Service Provider acts in such a way, under this contract or any other contract with the

deliver to the Employer all drawings, documents and papers relating to the Services and shall

within fourteen (14) days after the date of termination submit an account for the Services

satisfactorily performed prior to the date of notice. The Employer shall not be liable to the Service

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SANRAL may levy penalties for late completion, failure to meet targeted enterprise subletting targets, failure to disclose subcontracting arrangements, late performance of structures inventory capture, and sub-standard draft documentation/design, as specified in the Contract Data.

(ii) Bid Evaluation Committee (BEC) (Please note that this will be on another SANRAL project).

3.11.5 In the event that the draft documentation and/or design is of sub-standard/poor quality, the