Dev. Agt. Draft 5 (FAL)
24.05.2011
DEVELOPMENT
AGREEMENT
between
City of Cape Town
and
Calgro M3 Holdings Limited
This is a Development Agreement pursuant to the appointment of Calgro M3 Holdings Limited as the
Developer for the delivery of proposals made by it in response to the “Request for Proposals:
272C/2009/10: Development of Un-serviced Pockets of Land in Scottsdene”.
Dev. Agt. Draft 4 (FAL)
20.05.2011
Page 2
Contents
1.
DEFINITIONS......................................................................................................................................3
2.
INTERPRETATION ............................................................................................................................12
3.
RECORDAL .......................................................................................................................................13
4.
SUSPENSIVE CONDITIONS ..............................................................................................................14
5.
DESCRIPTION OF THE PROJECT.......................................................................................................15
6.
THE ROLE AND FUNCTION OF THE CITY UNDER THE PROJECT ......................................................17
7.
APPOINTMENT ................................................................................................................................19
8.
SPECIFIC PROJECT OBLIGATIONS AND RIGHTS OF THE CITY .........................................................21
9.
SPECIFIC PROJECT OBLIGATIONS AND RIGHTS OF THE DEVELOPER .............................................24
10.
WAIVER OF THE DEVELOPER'S LIENS .............................................................................................31
11.
DEVELOPERS ENGAGEMENT OF THIRD PARTIES ...........................................................................31
12.
INSURANCE: DAMAGE TO THE LAND AND TO THE WORKS .........................................................33
13.
INSTRUCTIONS BY THE CITY ...........................................................................................................34
14.
INSPECTIONS AT THE INSTANCE OF THE CITY ................................................................................36
15.
CONTRACT SUM ..............................................................................................................................36
16.
PAYMENT OF THE CONTRACT SUM AND DEVELOPMENT CONTRIBUTIONS ................................37
17.
DEFECTS...........................................................................................................................................41
18.
EXTENSIONS ....................................................................................................................................41
19.
COMPLAINT PROCESS .....................................................................................................................42
20.
PENALTIES .......................................................................................................................................43
21.
SUMMARY TERMINATION ..............................................................................................................43
22.
EARLY TERMINATION......................................................................................................................45
23.
ADJUDICATION................................................................................................................................47
24.
MEDIATION AND ARBITRATION .....................................................................................................49
Dev. Agt. Draft 4 (FAL)
20.05.2011
Page 3
25.
THE DEVELOPER'S ROLE IN PROCESS ADMINISTRATION, LEGAL COMPLIANCE AND IN THE
FUNDING, MARKETING AND HAND-OVER PROCESSES .............................................................................51
26.
CONFLICT .........................................................................................................................................52
27.
PROHIBITION AGAINST ASSIGNMENT ...........................................................................................52
28.
GUARANTEE ....................................................................................................................................53
29.
DOMICILIUM AND NOTICES ...........................................................................................................53
30.
JURISDICTION AND GOVERNING LAW ...........................................................................................54
31.
WHOLE AGREEMENT ......................................................................................................................54
32.
NO VARIATION ................................................................................................................................54
33.
NO WAIVER .....................................................................................................................................54
34.
GOOD FAITH ....................................................................................................................................55
35.
INDULGENCES, LENIENCY AND EXTENSIONS .................................................................................55
36.
SEVERABILITY ..................................................................................................................................55
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Dev. Agt. Draft 5 (FAL)
24.05.2011
1.
DEFINITIONS
In this Agreement, the following words and expressions shall have the following
meanings and cognate expressions shall bear corresponding meanings, unless
otherwise required by the context in which they are used:
1.1
"Agreement"
means the agreement concluded between the
Parties as evidenced by this document;
1.2
“Beneficiaries”
means natural persons who have applied for State
Subsidies and who have qualified to receive the
benefit of ownership of State Funded Ownership
Housing Units;
1.3
"Bid Proposal"
means the proposal by the Developer for its
undertaking and execution of the Project made on
25 February 2010 in response to the Proposal Call;
1.4
“BNG"
means the national housing programme or policy
known as “Breaking New Ground”;
1.5
“City”
means the City of Cape Town, a municipality duly
established in accordance with law;
1.6
“Business Day”
means a day of the week, excluding a Saturday, on
which banks in South Africa are open for “over-thecounter” business;
1.7
“City Objective”
means the objective of the City in proposing the
Project, as more fully stated in clause 3.3;
1.8
“Commencement Date”
means the date on and with effect from which the
Land is to be made available to the Developer
pursuant to clause 8.1;
1.9
"Completion Date"
means the date completion of the Project, signified
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by the last registration of transfer of a Housing Unit
in the Project, or as may be otherwise be agreed in
writing between the Parties.
1.10
"Contract Sum"
means the total of the amounts, more fully referred
to in clause 15, payable by the City to the Developer
to execute and complete the Works;
1.11
"Council Rental Units"
means Housing Units funded by the national
Community Residential Units Programme for renting
to Tenants by the City of Cape Town;
1.12
“CPI”
means the Consumer Price Index as published by
Statistics South Africa from time to time and
generally known as the “CPI”;
1.13
1.14
“Developer”
"Development"
means Calgro M3 Holdings Limited;
means the development of the Land by carrying out
and completing the Improvements and by
constructing and completing the Housing Units
referred to in clause 5.1;
1.15
"Development
Contributions"
means those contributions levied by the City on land
developments generally when building plans are
approved in respect of residential developments
within the City’s area of jurisdiction, in the amounts
calculated for the portion/s of the Land to which the
said plans relate at the prevailing rates applicable
from time to time when building plans are approved,
1.16
“Development Plan”
means a recordal of the intended time frames and
achievement milestones which the Developer must
adhere to in the execution of the Works, which is
subject to changes and amendments from time to
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24.05.2011
time;
1.17
"Expert Adjudicator"
means the person appointed as an expert
adjudicator pursuant to clause 23.2.1;
1.18
"Bulk Services"
means bulk, connector and link infrastructure;
1.19
“GAP Houses”
means Housing Units established and funded by the
Developer which sell at a sale price of not more than
R300 000 (VAT inclusive), provided always that the
said sum of R300 000 shall be subject to annual
adjustment with effect from 31 December 2011 by
the rand amount that represents the same
percentage of the aforesaid amount (as last
adjusted, if previously adjusted in terms hereof) as
the percentage change, if any, in the CPI since
whichever is the later of 31 December 2011 or the
date of the last such annual adjustment, or as may
be otherwise agreed between the Parties in writing;
1.20
“Housing Code”
means the National Housing Code published in
terms of the Housing Act, 107 of 1997 and includes
all other national and provincial housing assistance
measures and/or housing programmes;
1.21
“Housing Unit(s)”
means a residential structure for human occupation,
irrespective of the form of tenure for which it has
been or will be utilised, designed and established as
a requirement of the Project and includes freestanding houses, sectional title sections and flats
that are Council Rental Units in multiple-floored
buildings containing multiple residences, and for all
the purposes of this Agreement except the letting
out thereof by the City, further includes such
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multiple-floored buildings;
1.22
"Improvements"
means all that which is necessary and ancillary to
the establishment of the Housing Units on the Land
in accordance with or envisaged in this Agreement,
including but not limited to the Works, the planning,
registration and opening of townships and township
registers in respect of the various components of the
Land, the planning, design, construction, installation
and connection of Internal Services (subject to the
role of ESKOM envisaged in clause 1.23.4), the
landscaping of the Land, the establishment, by
planning, design and construction, of Housing Units
on various portions of the Land as envisaged in
clause 5.1 of this Agreement and the post
construction removal of all debris, rubble and
excavated soil from the respective portions of the
Land before the Housing Units to be established
thereon are handed over to the City or the
respective Beneficiaries and Purchasers of the
Housing Units established thereon following
completion of each phase or agreed component of
the Development, all as is set out in the Proposal
Call, the Bid Proposal and the approved Plans and
as provided for in terms of the relevant development
rights granted in respect of the Land and the zoning
and rezoning conditions applicable thereto;
1.23
"Internal Services"
means the provision of the civil and electrical
engineering services, and the upgrading of existing
the civil and electrical engineering services,
comprising –
1.23.1
roads, whether tarred or resurfaced, as
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may be necessary and rain water drainage;
and
1.23.2
water reticulation up to, and including a
water connection to, each of the Housing
Units; and
1.23.3
sewer reticulation up to, and including a
sewer connection to, each of the Housing
Units; and
1.23.4
electricity reticulation if so requested by the
City and agreed upon by the Parties in
terms of a separate agreement concluded
between them, the installation and
provision of which shall be from sources
and funding to which the City will have
access at the time of installation provided
that should the City require either a higher
level and/or standard of electricity
reticulation to be installed, the City will be
responsible for the costs of the design,
installation and provision of such higher
level and/or standard including but not
limited to the electrification of each
Housing Unit;
1.24
“Land”
means the undeveloped and un-serviced pockets of
land in Scottsdene identified in the Schedule hereto
annexed as Annexure "A" and in the Map hereto
annexed as Annexure "B";
1.25
"MIG"
means a Municipal Infrastructure Grant as approved
by the City in terms of the provisions of the national
programme for the provision of Bulk Infrastructure
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for State Funded Housing Units in the Development;
1.26
"Milestone(s)"
means stages of achievement expressed in the
Development Plan;
1.27
"NHBRC"
means The National Home Builders Registration
Council;
1.28
"MINMEC"
means the Committee of the Minister of Housing,
MEC's and a Councillor representing organised local
government;
1.29
“Open Market Units”
means Housing Units to be established by the
Developer from own funding or funding by
Purchasers (who may require loans from a bank or
financial institution to pay for the Housing Unit),
which sell at a sale price of R400 000 (VAT
inclusive) or more, provided always that the said
sum of R400 000 shall be subject to annual
adjustment as provided for in clause 5.2;
1.30
1.31
"Parties"
"PGWC"
means the City and the Developer collectively;
means the Provincial Government of the Western
Cape;
1.32
"Plan(s)"
means the Development Concept Plan, the
Development Plan, the Internal Services Plans
including without limitation the Civil Engineering
Plans, the Building Plans for the Housing Units (and
any buildings that may contain any of the Housing
Units) and the Landscaping Plans both before and
after their respective approvals in terms of this
Agreement, collectively, and as amended where the
Parties may so agree from time to time in writing;
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“Privately Funded
Housing Units”
1.33
means Housing Units that are established or to be
established in terms of this Agreement without State
Subsidy funding to each of which sectional title or
freehold title ownership may be obtained by
registration of transfer into the name of a Purchaser
in the Cape Town Deeds Registry;
“Project Management
Programme"
1.34
means a recordal and description of the functions
and tasks of the Developer in the overall execution
of the Project, attached or to be attached to this
Agreement for purposes of informing as to the
programme envisaged to execute the Works and
related aspects;
"Project"
1.35
means the development project referred to in
clause 3.2;
"Proposal Call"
1.36
means the City's published Proposal Call
272C/2009/10 in terms of which bid proposals were
invited from developers for undertaking and
executing the Project;
"Purchaser"
1.37
means a purchaser of a Privately Funded Housing
Unit;
1.38
“
“RDP”
means the National Reconstruction and
Development programme;
1.39
"Signature Date"
means the date of signature of this Agreement by
whichever of the Parties signs it after the other has
signed it;
1.40
"State"
means the nation state of South Africa acting
through the authority of its national government;
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1.41
“State Funded Housing
Units”
means Housing Units that are funded by the
provision of State Subsidies and includes Council
Rental Units and State Funded Ownership Units;
1.42
“State Funded
Ownership Units”
means Housing Units that are funded by the
provision of State Subsidies and to each of which
sectional title or freehold title ownership may be
obtained by registration of transfer in the Cape Town
Deeds Registry to qualifying individuals
(Beneficiaries) as envisaged by the National
Housing Code or any other government policy such
as the BNG and the RDP;
1.43
“State Subsidy(ies)”
means State assistance measures in the form of
housing subsidies provided and granted to establish
Housing Units and for purposes of municipal
services, as is contemplated in terms of the National
Housing Code or any other State housing policies, in
terms of the Housing Act, 107 of 1997;
1.44
“Subsidy
Administration”
means those functions and tasks assigned to the
Developer to administer and manage in relation to
those aspects of State Subsidies applied for and
granted to Beneficiaries, as more fully described in
clause 9.8.2.1 to clause 9.8.2.4.
1.45
"Suspensive
Conditions"
means the suspensive conditions described in
clause 4.1;
1.46
"Temporary Occupiers"
means all persons duly authorised to be in
occupation of the Land, whether in whole or in part,
during the execution of the Project including but not
limited to the Developer, its representatives, officers,
employees, agents, professional consultants and
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advisors and Developer approved contractors and
their authorised sub-contractors, if any, and the
respective employees of all of them;
1.47
"Tenant"
means a tenant of a Council Rental Unit that is
available for purposes of being let and hired; and
1.48
"Works"
means, and is limited to, all of that which the
Developer is required to do as turnkey contractor in
the execution of those phases and/or components of
the Development which relate to State Funded
Housing Units and includes but is not limited to
planning, registration and opening of townships and
township registers in respect of the various
components of the Land to the extent necessary for
the establishment of the State Funded Housing
Units and the Internal Services associated therewith,
the planning, design, construction, installation and
connection of Internal Services (subject to the role of
ESKOM envisaged in clause 1.23.4), the
landscaping of the Land, the establishment, by
planning, design and construction, of State Funded
Housing Units on various portions of the Land and
the post construction removal of all debris, rubble
and excavated soil from the respective portions of
the Land before the State Funded Housing Units to
be established thereon are handed over to the City
or the respective Beneficiaries of the Housing Units
established thereon following completion of each
phase or agreed component of the Development, all
as is set out in the Proposal Call, the Bid Proposal
and the approved Plans and as provided for in terms
of the relevant development rights granted in
respect of the Land and the zoning and rezoning
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conditions applicable thereto.
2.
INTERPRETATION
2.1
If any provision in a definition is a substantive provision, conferring rights or
imposing obligations on any party, effect shall be given thereto as if such
provision were a substantive provision in the body of this Agreement
notwithstanding that such provision is only contained in the relevant definition.
2.2
Where any term is defined in the context of any particular clause in this
Agreement, the term is so defined shall, unless it is clear from the clause in
question read in context with the other provisions of this Agreement that the term
so defined has limited application to the relevant clause, bear the meaning
ascribed to it for all purposes of this Agreement notwithstanding that that term
has not been identified in clause 1.
2.3
Unless inconsistent with the context in which it is used in this Agreement, a word
or an expression, including without limitation thereto, a word or expression
defined in clause 1, which denotes:
2.3.1
any gender includes the other genders;
2.3.2
a natural person includes a body corporate, a trust, firm or association
of persons and vice versa; and
2.3.3
2.4
the singular includes the plural and vice versa.
Derivatives of any word or expression and cognate words and expressions shall
have corresponding meanings, unless inconsistent with the context in which they
are used in this Agreement.
2.5
The headnotes to the clauses of this Agreement are for reference purposes only
and shall in no way govern or affect the interpretation of nor modify nor amplify
the terms of this Agreement nor any clause hereof.
2.6
When any number of days is prescribed in this Agreement, same shall be
reckoned exclusively of the first and inclusively of the last day save where
otherwise expressly provided for.
2.7
Where figures are referred to in numerals and in words, the words shall, in the
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event of any conflict in such reference, prevail.
2.8
All annexures, addenda and schedules attached to this Agreement and those to
be attached when approved in writing by both the Parties form an integral part
hereof and words and expressions defined in this document shall, unless the
context otherwise requires, bear the same meaning in such annexures, addenda
and schedules.
2.9
All references to a statutory provision or enactment shall include references to
any amendment, modification or re-enactment of any such provision or
enactment (whether before or after the Signature Date), to any previous
enactment which has been replaced or amended and to any regulation or order
made under such provision or enactment.
3.
RECORDAL
3.1
The City is the registered owner of the Land.
3.2
The City has proposed a project for the development of the Land that envisages
the establishment of townships, the installation of Internal and necessary Bulk
Services and the building of Housing Units thereon to achieve the City Objective.
3.3
Without derogating from the generality of that which is required to be done for the
successful execution of the Project, the City Objective in proposing the Project is
to procure the provision of an appropriately balanced range of different Housing
Units located within proclaimed townships with an acceptable standard of Bulk
and Internal Services, aimed at providing future residents and users with a
comfortable and suitably appropriate quality of life style and accordingly:
3.3.1
increase residential densification in the interest of urban and
infrastructure efficiency, as is planned for Scottsdene;
3.3.2
realise a residential development which provides for a range of income
groups by supplying State Funded Housing Units and Privately Funded
Housing Units over a wide range of prices;
3.3.3
deliver new Housing Unit opportunities with associated landscaping in a
form which results in a sustainable property market with appreciation
for the benefit of future Purchasers and which will result in the
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gentrification of the Scottsdene area; and
3.3.4
optimise the deployment of land held by the City and existing spare
infrastructure capacity for the delivery of low income Housing
opportunities.
3.4
Pursuant to its Proposal Call in relation to the Project the City sought to invite
interested developers to undertake and execute the Project.
The Developer
submitted its Bid Proposal which was accepted by the City at the meeting of the
SCMBAC on 29 November 2010, item number SCMB 172/11/10.
3.5
Consequent upon the Bid Proposal acceptance, the Parties wish to record in this
Agreement the terms and conditions subject to which the Project is to be
undertaken and executed by the Developer.
4.
SUSPENSIVE CONDITIONS
4.1
This Agreement is subject to the following conditions regarding funding that must
approved in amounts and values adequate to perform the Project, which relates
to:
4.1.1
funding required by the City which comprises both of:
4.1.1.1
Subsidy Housing to be Developed under a National
Housing Programme: State Housing and related subsidies
which have been applied for by the City and funded and
secured from the PGWC in the number, type of and subsidy
values which will satisfy the fulfilment of this Agreement, in
the amount that will ensure the completion of the Project
subsidy related works as per the contract term or within
such extended period as the Parties may, within the
confines of the applicable legislation, agree and which also
is acceptable to the Developer; and
4.1.1.2
MIG funding being available to the City, which has been
applied for and having been approved, sufficient in value to
fund the obligations of the City, to provide MIG funded (as
per the MIG programme) Bulk Services, of which the City
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will be obliged to advise the Developer in writing;
4.2
This Agreement will only lapse as a result of the non-fulfilment of a suspensive
condition, if any of the conditions described in 4.1 have not been achieved and
4.2.1
as regards clause 4.1.1.1 and clause 4.1.1.2, the Developer; or
4.2.2
as regards clause Error! Reference source not found., the City,
has given the other of them notice calling upon the other of them (i.e. either the
City or the Developer, as the case may be) to fulfil or cause the fulfilment of the
respective condition within that notice period given, and upon that condition not
having been fulfilled within the a-forestated notice period, or an extension of that
period mutually agreed to, then only will this Agreement lapse and be of no
further force and effect.
4.3
The Parties acknowledge the benefit for the Project by extending periods for the
fulfilment of any one or more tasks or the conditions to be achieved, described in
clause 4.1, and therefore specifically agree that extensions will, as a rule and
subject specifically to any applicable legislation, be granted if one party requests
the other party to extend a particular period, except where the party requested to
consent will be unreasonably prejudiced and extensions will as a rule be granted
under circumstances which have occurred and which have caused delays
beyond the control of any of the Parties.
5.
DESCRIPTION OF THE PROJECT
5.1
The Project comprises the Development which relates to the use of whole of the
Land for establishment of Internal Services and new Housing Units within
townships proclaimed or to be proclaimed with the completion and delivery of a
target number of 2 200 (two thousand two hundred) new Housing Units, with
associated landscaping and connected Internal Services, to be built within a
range comprising both State Funded Housing Units and Privately Funded
Housing Units, the approximate mix of which will be in the following categories;
5.1.1
State Funded Housing Units comprising:
5.1.1.1
340 (three hundred and forty) Council Rental Units funded
in terms of State Subsidy approvals received under the
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national Community Residential Units housing programme
or any other State Subsidy programme that may be or
become applicable and aligned to the City’s budget in this
regard, and
5.1.1.2
550 (five hundred and fifty) of the State Funded Ownership
Units funded in terms of State Subsidy approvals received
under the applicable national housing programme and
aligned to the City’s budget in this regard,
it being acknowledged and recorded that as at the Signature Date the
State Subsidy allowable for the building of a State Funded Ownership
Housing Unit is R100 000 and R210 000 for a State Funded Rental
Unit but which may be subjected to adjustment in accordance with the
terms and conditions from time to time applicable to State Subsidies.
5.1.2
Privately Funded Housing Units comprising:
5.1.2.1
1 100 (one thousand one hundred) GAP Houses which are
intended to be high density sectional title Housing Units;
and
5.1.2.2
5.2
210 (two hundred and ten) Open Market Ownership Units.
It is recorded that the target number and Housing Unit categories specified in
clause 5.1 and the amounts of R300 000 and R400 000 contained in clause 1.19
and clause 1.29 respectively are based on the Bid Proposal. The Parties agree
that the aforesaid amounts shall be read as real term values for the future years
of this Agreement and will therefore be subject to annual adjustment with effect
from 31 December 2011 by the rand amount that represents the same
percentage of such amount (as last adjusted, if previously adjusted in terms
hereof) as the percentage change, if any, in the CPI since whichever is the later
of 31 December 2011 or the date of the last such annual adjustment, or as may
be otherwise agreed between the Parties in writing.
5.3
The Project shall be implemented in phases in accordance with the following
provisions:
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5.3.1
each phase shall be geographically identified and located, with respect
to the various categories of Housing Unit types described in clause 5.1,
as is agreed upon by the Parties and recorded in the Development
Plan; and
5.3.2
the purpose of phasing is directed at aligning the Development with the
private property market so that only those Privately Funded Housing
Units which are fundable from private sources and are saleable, will be
built as far as reasonably possible as and when they are fundable and
saleable, and only those State Funded Housing Units that are fundable
by State Subsidies will be built as and when those State Subsidies are
available for payment;
5.3.3
the Housing Unit category mix, described in clause 5.1, is not intended
to be concentrated on each phase, but rather over
the entire
geographical area comprising the whole of the Project;
5.3.4
the typologies in respect of all houses will be in accordance with agreed
and approved building plans, national norms and standards, subsidy
approval conditions, and located on and in terms of approved
development plans.
6.
THE ROLE AND FUNCTION OF THE CITY UNDER THE PROJECT
The City shall:
6.1
facilitate the applications to the PGWC Department of Housing for State
Subsidies as aligned to the Development Plan, budget for the approved State
Subsidies in a manner that is affordable and complies with the Municipal Finance
Management Act and pay to the Developer only the amounts of the approved
State Subsidies in accordance with progress with the Works as provided for
hereinafter, all on the basis that the Parties shall not assume that further or
additional City funds will be available for the Project; and
6.2
expedite, as far as is reasonably possible, all Land-Use and building-plan
approvals and relative processes as may from time to time be required; and
6.3
monitor the Developer's performance in terms of this Agreement and sign off
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Works against progress certifications; and
6.4
appoint from time to time, in its discretion and at its cost, a Review Consultant, or
more than one, of its choice authorised and mandated to undertake on behalf of
the City inspections of the Works, to monitor on behalf of the City the Developer's
progress with the Works in the implementation of the Project and to provide the
City with regular reports concerning the Developer’s performance, progress with
the Project and any matters that require the attention or any action on the part of
the City.
Such Review Consultant/s may, at the election of the City, be
permanently or temporarily housed on the Land for the aforementioned purposes.
Any such appointment notwithstanding, the Developer to be obliged to meet
regularly with the City during its execution of the Works by way of formal
meetings held not less frequently than monthly and convened at the instance of
the City on, unless otherwise agreed between the Parties, not less than 3 (three)
working days’ notice; formal minutes of the proceedings of each of such meetings
to be kept and circulated amongst the Parties as soon as possible after each
meeting and at which meetings the City shall issue such Project instructions as it
may consider reasonably necessary for the Developer's execution of the Works;
the issue of any such instructions notwithstanding, the Developer to be and
remain, on the basis of a turnkey development, entirely responsible for delivery of
the Works.
6.5
allocate State Funded Housing Units by:
6.5.1
setting up a Project steering committee at the cost of the Developer to
attend to and deal with all community related issues, including
community liaison, with the relevant communities intended to be
allocated State Funded Housing Units whether as Beneficiaries or
Tenants, and in regard to the identification and selection of potential
Beneficiaries, the City shall identify and make known to the Developer
in writing persons identified by the City off its Housing Database who
are believed by the City to be eligible to apply for State Subsidies in
terms of the City’s policy in this regard plus an additional list naming
further substitute persons who may apply for State Subsidies with a
view to becoming Beneficiaries in substitution for any persons on the
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original list who should fail to qualify for a State Subsidy as one of the
Beneficiaries; and
6.5.2
do all that is reasonable and necessary to do, to distinguish the
substitute persons aforementioned from the rest of a particular
community in order that the Developer is able to carry out its Subsidy
Administration obligations; and
6.5.3
after having accepted completed Council Rental Units in batches or
stages, conclude with Tenants, the City’s then current standard rental
lease offer process and place those Tenants in the respective Council
Rental Units; and
6.5.4
finally, take over and maintain all the open spaces, streets and roads,
and Internal Services infrastructure, as well as the completed the
Council Rental Units from the Developer, at the appropriate time and in
the format as agreed between the City and the Developer, provided
that no such take-over or acceptance shall take place in respect of a
building that is wholly or partly comprised of more than one Council
Rental Unit before such building and all Council Rental Units of which it
is so comprised have been signed off as properly complete and fit for
human habitation.
7.
APPOINTMENT
7.1
The City appoints the Developer in terms of two distinguishable portfolios, but
which are inseparable of one another, i.e.:
7.1.1
as the City’s turnkey contractor to execute the Works in regards goods
and services to be rendered to provide the State Funded Housing Units
and the Improvements as is contemplated in terms of and under
Chapter 3A of Part 3 of the Housing Code; and
7.1.2
as a private developer acting for its own account towards profit and
loss, to develop the Privately Funded Housing Units for the Developer’s
own account and to recover such costs and expenses and profits from
the proceeds of the sale of the Privately Funded Housing Units to
Purchasers thereof,
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and to execute the Project on the Land, which the Developer acknowledges the
majority of the Land (components) already have suitable land use rights whilst a
minority of the Land (components) require the necessary land use rights to be
applied for, as part of the functions of the Developer.
7.2
The Developer hereby accepts its appointment under clause 7.1 and, in doing so,
warrants that it shall undertake and execute the Project to the Project’s
completion of the Development in accordance with:
7.2.1
the provisions of this Agreement; and
7.2.2
the development rights which shall be incorporated as conditions of the
applicable rezoning scheme regulations and provisions, the National
Building Regulations and the Housing Code; and
7.2.3
the instructions of the City, aligned to the City tender, issued to the
Developer from time to time in terms of the City's statutory authority
with regard to the Project; and
7.2.4
substantially in accordance with the provisions of the Proposal Call as
amended, where applicable, by this Agreement or by approved
documents referred to herein or by written notification given by the City
to the Developer; and
7.2.5
7.3
substantially in accordance with the Bid Proposal.
The Project is intended to endure and be completed within 4 (four) years from the
date upon which the last of the Suspensive Conditions have been fulfilled,
subject to such extension of periods or time as the Parties may agree to, and
which neither of the Parties will unreasonably withhold if delays occur, particularly
where such delays are caused by circumstances or events beyond the control of
either one or both parties; provided that the risk to the Project will not pass to the
Developer earlier than the Commencement Date, save and except where the
Developer will be allowed to execute and carry out preliminary works such as, by
way of example only, grading and other ground works and investigations with the
consent of the City, which will not be unreasonably withheld.
7.4
If by virtue of the provisions of clause 7.3, the Developer executes or carries out
preliminary works and investigations on the Land with the consent of the City
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before the Commencement Date it shall do so entirely at its, the Developer’s own
risk and for the Developer’s own account and the Developer shall thus be
deemed for all purposes to have had access, as referred to in clause 8.1.1 to the
portion/s of the Land and the Improvements made on such portions prior to the
Commencement Date and shall be deemed to have responsibility, as referred to
in clause 8.1.2, for such portions of the Land and Improvements thereon from the
time of commencement of such deemed access. Save as aforesaid access and
responsibility as referred to in clause 8.1.1 and clause 8.1.2 respectively shall
only pass to the Developer on the Commencement Date.
8.
SPECIFIC PROJECT OBLIGATIONS AND RIGHTS OF THE CITY
The City assumes, and will be entitled to enforce the following specific rights in regards
the furtherance of the Project, which rights the Developer hereby, acknowledges:
8.1
To give the Developer access to the Land at the appropriate time, as is described
in clause 7, where:
8.1.1
the expression "access" shall mean the right of entry to, occupation of
and egress from the Land insofar as reasonably required by the
Temporary Occupiers for the purpose of undertaking and executing the
Project to completion but excludes any other right to or in respect of the
Land including but not limited to the right to borrow or lend monies
against the security of the Land and the exercise of any right of
ownership in relation to the Land; and
8.1.2
the expression "responsibility" shall mean responsibility for protecting
the Land from illegal occupation, dumping, unauthorised earthworks
and any other intrusion on the Land of whatever nature and at the
instance of whomsoever.
8.2
Access and responsibility under clause 8.1 shall, notwithstanding the provisions
of that clause, cease in regard to a portion or component of the Project once:
8.2.1
the development of that component has been completed; and
8.2.2
the Council Rental Units in the completed component have been
occupied by Tenants; and
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8.2.3
the State Funded Ownership Units in the completed component have
been transferred to and occupied by Beneficiaries; and
8.2.4
the Privately Funded Housing Units in the completed component have
been occupied pursuant to sale and transfer thereof to Purchasers; and
and as regards the Land as a whole, (i.e. the entire Land Development), upon:
8.3
8.2.5
the completion of the Project; or
8.2.6
termination or cancellation of this Agreement, for whatever reason.
The City be entitled to payment from the Developer out of the proceeds of the
sale/disposal of each of the Privately Funded Housing Units, of a consideration
calculated as follows:
8.3.1
the Open Market Units: – an amount representing 7% (seven percent)
of the Sale Price (exclusive of VAT) of each Open Market Unit, which
shall be payable by the Developer to the City upon registration of
transfer of each respective Open Market Unit into the name of the
name of the Purchaser thereof; and
8.3.2
GAP Houses – an amount representing 7% (seven percent) of the Sale
Price (exclusive of VAT) of each GAP House which shall be payable to
by the Developer to the City upon registration of transfer of each
respective GAP House into the name of the Purchaser thereof.
8.4
In regard to the marketing, sale and transfer of the respective Housing Units, the
following will apply:
8.4.1
the Developer will market and sell the Open Market Units and the GAP
Houses to Purchasers on behalf of the City, under Power of Attorney
granted by the City to the Developer at market related purchase prices
determined by the Developer; and
8.4.2
the Power of Attorney referred to in clause 8.4.1 shall be in terms to be
agreed upon between the Parties and shall be provided to the
Developer by the City against simultaneous delivery from the
Developer of an instrument of indemnity in terms reasonably
acceptable to the City where-under the City shall be indemnified
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against all claims by Purchasers arising out of their purchase of an
Privately Funded Housing Unit on any portion of the Land except the
claim to transfer of ownership; and
8.4.3
the proceeds of each sale of a Privately Funded Housing Unit, less the
amount payable to the City as is described in clause 8.3.1 or clause
8.3.2, as the case may be, shall accrue for the benefit of the Developer;
and
8.4.4
the amounts payable to the City as is described in clause 8.3.1 and
clause 8.3.2 shall be paid to the City on transfer of each respective
Privately Funded Housing Unit to its Purchaser in the deeds registry;
and
8.4.5
the City shall be entitled to withhold the so-called rates clearance
certificate or any other clearance certificate necessary to permit
transfer of a Privately Funded Housing Unit to its Purchaser until the
Developer delivered to the City or its nominee a letter of undertaking or
guarantee from a bank or other financial institution approved by the City
and on terms and conditions reasonably acceptable to the City for
payment to the City on registration of transfer of such Privately Funded
Housing Unit of the appropriate amount payable to the City as is
described in clause 8.3.1 or clause 8.3.2, as the case may be; and
8.4.6
subject to the foregoing provisions of this clause 8.4 the City will
guarantee and allow the transfer of the Privately Funded Housing Units
sold to be effected by the conveyancers of the Developer, at the
appropriate time and will do all that is necessary and required to be
done to give the Developer the authorities necessary to give effect to
the sale of the Privately Funded Housing Unit at the sole risk and
expense of the Developer; and
8.4.7
the Developer will assist the City, in the City’s capacity as seller of the
State Funded Ownership Units, with the handover of occupation thereof
to Beneficiaries where required; and
8.4.8
the City will cause the transfer of State Funded Ownership Units direct
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from the City to the respective Beneficiaries at the appropriate time
through conveyancers appointed for the purpose by the City.
The City will be and remain responsible for the leasing out of the Council Rental
Units and the Developer will not participate in such process.
9.
SPECIFIC PROJECT OBLIGATIONS AND RIGHTS OF THE DEVELOPER
9.1
The Developer is appointed by the City as contractor to undertake the Project.
More particularly, the Developer is appointed both as:
9.1.1
as turnkey contractor to establish the State Funded Housing Units and
for that purpose also to carry out and effect the Improvements
necessary and ancillary to the establishment of the State Funded
Housing Units on the one hand, and
9.1.2
on the other hand, as a private land-developer in the establishment of
the Privately Funded Housing Units and in carrying out and effecting
the Improvements necessary and ancillary to the establishment of the
Privately Funded Housing Units at the Developer’s risk and for its own
account, profit and loss,
and the Developer assumes and undertakes to implement the Project, which
includes without limitation thereto the specific obligations in the furtherance of the
Project until completion that are described in the further provisions of this
clause 9.
9.2
The Developer shall be responsible for the entire Development process from and
inclusive of the Commencement Date to and inclusive of the completion of the
Project, to which end the Developer shall accept and take physical possession
and occupation of the Land at the appropriate time when made available to it by
the City on the Commencement Date pursuant to clause 8.1 and subject to the
rights of occupation by whomsoever expressly or impliedly provided for and/or
arising from the execution of the Project and, subject to the provisions of clause
8.2, retain such physical possession and occupation and protect the Land as
provided for in clause 8.1.2 until and the completion of a phase or the completion
of the entire Project.
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9.3
The Developer shall, without limiting the generality of the Developer’s obligations
and responsibilities as Land developer, be specifically responsible for
undertaking and executing to completion:
9.3.1
the planning of the Land generally in conformity with the Proposal Call
and its Bid Proposal as more fully provided for in clause 9.4; and
9.3.2
the establishment and proclamation of the Land as a number of
Townships with the opening of Township Registers more fully provided
for in clause 9.5; and
9.3.3
the design and installation of the Internal Services more fully provided
for in clause 9.6; and
9.3.4
the design and construction of the Housing Unit foundations and
Housing Units more fully provided for in clause 9.7; and
9.3.5
draft and finalise the applications to the relevant authority for all funding
associated with the State Funded Housing Units;
9.3.6
the handing over of completed Privately Funded Housing Units to
Purchasers; and
9.3.7
the handing over of completed State Funded Ownership Units to
Beneficiaries to the extent required by the City and as referred to in
clause 9.8.1 and clause 9.8.2; and
9.3.8
the handing over of Council Rental Units to the City which will use is
own procedures to provide Tenants with occupation thereof in clause
9.8.3.
9.4
The following provisions shall, inter alia, regulate the Developer's planning of the
Land:
9.4.1
the Developer's planning shall include but not be limited to its
production of a Concept Development Plan and a Development Plan,
each to be agreed upon between the Parties, for the purposes of:
9.4.1.1
the overall Project Management and Programming of the
Works, serving as the programme for the staging and
phasing in of the Project provided for in clause 5.3; and
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9.4.1.2
land use applications as may still be required including subdivisions, consolidations, rezonings and removals of
restrictions.
9.5
The following provisions shall, inter alia, regulate the Developer's establishment
and proclamation of the Land as Townships and the opening of Township
Registers;
9.5.1
the Developer shall be responsible for all aspects of each Township
establishment and proclamation process including but not limited to the
approval by the Surveyor General of the relevant SG diagram and the
registration thereof in the Cape Town Deeds Registry; and
9.5.2
the Developer shall also be responsible for procuring the opening of
Township Registers for the Land and all sectional title registers and
facilitating and regulating the formal process of the registration of Land
remainders not improved by Housing Units and the registration of
transfer of Privately Funded Housing Units to Purchasers but not the
transfer of State Funded Ownership Units to Beneficiaries nor the
occupation of Council Rental Units by Tenants.
9.6
The following provisions shall, inter alia, regulate the Developer's design and
installation of the Internal Services:
9.6.1
the Developer shall design and install the civil Internal Services:
9.6.1.1
to the levels and standards directed by the City and on the
basis
that
all
design
and
installation
plans
and
specifications shall, at the instance of the Developer, be
circulated amongst, and be approved by, the respective
City departments concerned, the City undertaking to
procure that such departments will, generally, approve such
plans in substantial accordance with the service and design
specifications of the City and that the City will engage in a
process of fast tracking or causing the approval of all such
plans to be expedited as far as is reasonably possible; and
9.6.1.2
in accordance with specifications which shall meet the
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requirements of, and standards of service prescribed by,
the PGWC in terms of its RDP programme; and
9.6.2
the electrical Internal Services shall form part of the overall Internal
Services and because the Land is in an Eskom supply area, the
Developer shall design and provide street lighting and install in each
Housing Unit an electrical conduit on the external building wall leading
from the foundation to a point within the building where a pre-paid
electrical meter is to be installed;
9.7
The following provisions shall, inter alia, regulate the Developer's design and
construction of the Housing Unit foundations and Housing Units:
9.7.1
the design and construction of the Housing Unit foundations and
Housing Units shall:
9.7.1.1
be preceded by a geotechnical examination of the Land
carried out by a suitably qualified engineer, the purpose of
which shall be to ensure compliance with the current
NHBRC requirements relating to residential areas including
soil and other relevant land conditions applicable to State
Funded Housing Units and the Developer shall ensure that
any remedial action recommended in the engineers
examination
report
as
being
necessary
to
ensure
compliance as aforesaid, shall be undertaken to completion
in accordance with the approval of the engineer; provided
that if any portion of the Land proves, in terms of the
examination report, not to be capable of being developed
because of adverse soil and underground conditions, that
portion shall be deemed excluded from the Development;
9.7.1.2
comply with all relevant building standards and legislation
including the requirements of the Housing Code where
these are applicable;
9.7.1.3
comply with all relevant conditions, if any, arising out of the
approval, and grant and receipt of State Subsidies provided
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that such conditions, if any, shall have been made known to
the Developer who shall use its best endeavours to
acquaint itself with the relevant conditions and keep abreast
of all changes therein and additions thereto; and
9.7.1.4
be such that it receives, and it shall be subject to, the
approvals of the PGWC and the NHBRC so as to ensure
compliance by the Developer with all relevant requirements
relating to soil and other conditions of, and in accordance
with the standards laid down by, the NHBRC insofar as
applicable to State Funded Housing Units, all of which
approvals shall be obtained at the instance of the
Developer, and the State Funded Housing Units portion of
the Project shall be enrolled by the Developer as a project
with the NHBRC;
9.7.1.5
comply with all requirements prescribed by the geotechnical
examination report referred to in clause 9.7.1.1;
9.7.1.6
require before the commencement of any construction
work, the submission by the Developer to the City for its
relevant departmental approval, of all building plans and the
Developer shall not proceed with any construction of any of
the Housing Unit foundations and Housing Units until such
approvals shall have been granted.
9.7.2
is recorded that:
9.7.2.1
the Developer shall be obliged to pay plan approval fees to
the City for design and building plans and Internal Services
plans submitted to the City for approval, subject to the
City’s policy on State Funded Housing Units;
9.7.2.2
NHBRC fees payable to the NHBRC shall be the
responsibility of the PGWC with the exception of those
payable in respect of the Open Market Units and the GAP
Houses which shall be payable to the NHBRC by the
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Developer;
9.7.3
in its construction of the Housing Unit foundations and the Housing
Units –
9.7.3.1
the Developer shall ensure that the construction shall at all
times be in strict conformity with all relevant provisions of
this Agreement including but not limited to all relevant
Plans, specifications and the like and in accordance with
good standards of workmanship meeting with the City's
reasonable approval and acceptance; and
9.7.3.2
the Developer shall be responsible for the placing and
positioning of Housing Unit foundations in accordance with
the relevant approved building plans and with ground
surveys and soil tests conducted for, and generally the
requirements of, the NHBRC as regards the State Funded
Housing Units;
9.7.4
the Developer shall be responsible for the purchase and supply at the
Developer’s expense of all materials required for use in the
construction of the Housing Unit foundations and Housing Units and the
installation of the Internal Services including, without limitation thereto:
9.7.4.1
the conclusion of supply agreements with the suppliers of
required materials; and
9.7.4.2
the Developer's acceptance of full responsibility for the
delivery, security, standards and quality of the materials,
excluding manufacturer warranties which will be passed on
to the Beneficiaries and Purchasers in terms of the deeds of
sale by which they acquire housing units, and the
Developer will not have any claim against the City for any
materials which may be lost, stolen, short supplied or
vandalised or be of inferior quality;
9.7.5
for the duration of the Project the Developer shall procure that all Land
areas under construction including the provision of Internal Services
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shall be adequately secured to the reasonable satisfaction of the City.
Allied to this responsibility shall be the responsibility of the Developer to
procure that all trenches, holes, manholes and other potentially
hazardous conditions on the Land during the construction process shall
be closed or otherwise protected so as to ensure that no person is
injured or suffers damage by reason of the existence thereof. The
Developer shall issue monthly written security certificates to the City
wherein shall be certified that all the aforementioned conditions shall
have been suitably addressed as herein required. Officials of the City
shall be entitled to undertake random site security audits from time to
time and any negative site security report will entitle the City to issue a
certificate to stop the Developer summarily, whereupon construction
shall immediately be stopped in accordance with the provisions of such
certificates and shall not be resumed until the negative report shall
have been adequately addressed to the reasonable satisfaction of the
City;
9.7.6
the Developer shall, furthermore, procure that all its employees,
subcontractors and their employees will comply with all relevant
security arrangements put in place at the instance of the Developer and
the Developer shall strictly comply with and procure the enforcement of
any specific instructions reasonably given to it by the City with regard to
the Developer's security arrangements.
9.8
The following provisions shall, inter alia, regulate the Developer's handing over of
State Funded Housing Units to either the Beneficiaries or to the City, i.e.:
9.8.1
the Developer shall procure that all completed State Funded Ownership
Units are handed over to the respective approved Beneficiaries thereof
to the extent required by the City, for occupation on the respective
dates to which such Beneficiaries shall become entitled to their
respective rights of occupation and the Developer shall liaise with the
relevant City department in this regard to ensure a timeous and efficient
hand over in all cases;
9.8.2
the handing over of the completed State Funded Ownership Units to
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Beneficiaries for occupation to the extent required by the City shall form
part of the Developer's Housing Subsidy Administration obligations
comprising, inter alia:
9.8.2.1
communicating with and assisting persons identified by the
City as being potential Beneficiaries, to apply for State
Subsidies correctly and successfully; and
9.8.2.2
doing all that as may be reasonably required of it to assist
applicants in
properly
completing
and lodging their
applications for State Subsidies with the PGWC; and
9.8.2.3
reporting to the City the outcome of each application
process; and
9.8.2.4
calling for substitute applicants in the case of any applicants
whose applications for State Subsidies are not approved
and complying with clause 9.8.2.1, clause 9.8.2.2 and
clause 9.8.2.3 in relation to substitute applicants as if the
substitute applicants were original applicants;
9.8.3
the Developer shall, in respect of the Council Rental Units, hand the
same over to the City upon completion thereof, irrespective of whether
the City has Tenants to move into the completed Council Rental Units.
10.
WAIVER OF THE DEVELOPER'S LIENS
The Developer hereby irrevocably and unconditionally waives in favour of the City, all
liens of whatever nature to which it may be or become entitled at law in respect of the
Land, the Improvements and the Works.
11.
DEVELOPERS ENGAGEMENT OF THIRD PARTIES
11.1
The Developer shall procure that all its employees, representatives and advisors
and all contractors, sub-contractors, their employees and other third parties
engaged by the Developer in connection with the Project will be suitably qualified
with the requisite degree of expertise for undertaking that for which engaged.
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The Developer shall ensure that none of the persons engaged by it as aforesaid
will in any way be engaged as, or be allowed to perceive or represent itself as
having been engaged as, an agent or subcontractor of the City.
11.2
All third party engagements shall be in writing and shall –
11.2.1 make it clear that the third party is neither an agent nor a subcontractor
of the City; and
11.2.2 provide for either insurance or professional indemnity cover to be taken
out by the third party to cover any damage or loss sustained by
whomsoever by reason of contractual breach or negligence on the part
of such third party; and
11.2.3 record that upon the City having fully discharged all of its payment
obligations to the Developer upon and subject to the terms and
conditions of this Agreement, and upon third parties engaged by the
Developer having been paid for their respective services rendered in
full, all relevant documentation and information relating to the Project
as is then in the possession or under the control of any such third party
shall, at no additional cost to the City, be delivered to the City and in so
contracting with the third party the Developer shall create and accept
on behalf of the City an obligation enforceable by the City against such
third party which the Developer shall be obliged to assist the City to
enforce; and
11.2.4 record the right and obligation of the Developer to effect the cession of
rights to the City as provided for in clause 11.3 and the right of the City
to invoke and enforce against the Developer and the third party the
provisions of clause 11.4; and
11.2.5 achieve a waiver, in favour of the City, of liens held by each such a
third party in respect of the Land or the Works, in regard to any work
undertaken by the third party, provided that any endeavour to achieve
such a waiver does not unreasonably compromise the ability of the
Developer to appoint a suitable third party contractor to undertake the
requisite work.
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11.3
A copy of each third party’s written engagement shall be furnished to the City
forthwith after completion and the City will be entitled to call for a cession of the
Developer’s rights held in terms of those written engagements, for purposes of
the City being entitled to enforce the terms and conditions of those
engagements against the respective party having been employed by the
Developer.
11.4
The City shall be entitled by way of written notice given to the Developer to such
effect to object to any third party thus engaged who, in its reasonably opinion, is
not suitably qualified and/or does not have the requisite degree of expertise as
aforementioned. Upon the issue and receipt of such a notice the Parties shall
meet and attempt to resolve the subject matter of the notice failing which the
City shall be entitled to proceed in terms of the Complaint Process provided for
in clause 20.
12.
INSURANCE: DAMAGE TO THE LAND AND TO THE WORKS
12.1
The Developer shall, at its cost, effect and maintain for the period from and
inclusive of the Commencement Date to and inclusive of the Completion Date,
or, if this Agreement terminates or is terminated according to its terms and
before the arrival of the Completion Date, the date of such earlier termination,
with an insurance company or companies meeting with the reasonable approval
of the City, comprehensive insurance against risk of damage to or loss of the
Land and the Works for all causes meeting with the City's reasonable approval
including but not limited to SASRIA cover or, should that cover no longer be
available, its equivalent as far as is reasonably possible. The Developer shall
also, at its cost, effect and maintain public liability insurance in respect of the
Land and the Works for the same period as aforementioned and with an
insurance company or companies and for causes meeting with the City's
reasonable approval including but not limited to SASRIA cover or its equivalent
as aforementioned. The interests of the City as the owner of the Land and its
interests in the Works shall be noted in the relative insurance policies. The
Developer warrants that all insurance premiums will be timeously paid and that
it will produce proof to the City upon request made from time to time that all
insurance provided for in terms of this clause is in full force and effect for the
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abovementioned period.
12.2
The Developer also undertakes to cede the aforementioned policies to the City
as security for its obligations under clause 12.3 and if called upon by the City in
writing so to do.
12.3
The Developer shall procure that any damage to or loss of the Land and of the
Works shall be adequately and expeditiously made good at the cost of the
Developer (subject to any insurance claim on the Developer' part) excluding,
however, damage or loss due to –
12.3.1 vis major;
12.3.2 war;
12.3.3 rebellion or public commotion including civil riots, strikes and lock outs;
12.3.4 confiscation by the State;
12.3.5 sonic shocks and other natural eventualities; and
12.3.6 acts or omissions directly attributable to the City including to persons
for whose actions the City is vicariously liable in law;
provided that the Developer shall have taken all reasonably practical
precautions to prevent or limit the risk and extent of any damage or loss that
could be so caused.
12.4
The Developer shall forthwith notify the City in writing of any damage to or loss
of the Land and of the Works and the Parties shall liaise with regard to the
lodgement of the appropriate claim or claims under such policy or policies in
relation to such damage or loss.
The Developer shall keep the City fully
advised of all remedial work undertaken with regard to making good any such
damage or loss.
13.
INSTRUCTIONS BY THE CITY
13.1
The City may, where in its reasonable discretion it considers it necessary to do
so, issue instructions to the Developer with regard to the Developer's execution
of the Works including but not limited to instructions relating to –
13.1.1 alterations to non-approved designs, quality or quantity of the Works,
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as an exception to the turnkey basis of appointment; provided that if the
required alterations do not result from fault on the part of the Developer
or any sub-contractor of the Developer but do have a cost implication,
then the Developer will, insofar as that cost implication increases
expenditure and/or costs on the part of the Developer, allow the
Developer to be compensated for such increase in costs; and
13.1.2 the rectification of discrepancies and errors in descriptions or omissions
in any of the contract and/or design documentation including sales
documentation; and
13.1.3 the removal or re-execution of any part of the Works; and
13.1.4 the opening of any part of the Works for inspection purposes or
otherwise as may be required by the City; and
13.1.5 the testing of any part of the Works including of any materials and
goods used or intended for use therein; and
13.1.6 the protection of the Works, making good any damage to or loss of or
repair required to the Works; and
13.1.7 compliance with any provisions of a legal nature as hereinbefore
referred to including insight and inspections into all documentation
relating to this Agreement; and
13.1.8 any other instruction which may be reasonably required by the City in
the process of, or related to the process of, the execution of the Works.
13.2
All instructions given by the City shall be given in writing and shall be delivered
to the Developer's address nominated in clause 29.
13.3
All instructions given by the City pursuant hereto shall be given effect to and be
complied with by the Developer within a reasonable time of its receipt of the
instruction and with due diligence and without delay failing which the City shall
be entitled to proceed with the Complaint Process in terms of clause 20 and
provided that if the Developer fails to comply with the provisions of this clause
on more than one occasion, the City shall be entitled to engage the services of
a third party to execute the instruction concerned at the cost of the Developer
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and which engagement shall be without prejudice to and without any waiver on
the part of the City of any other legal rights to which it may be entitled in terms
of this Agreement or otherwise in law by reason of such failure on the part of the
Developer.
14.
INSPECTIONS AT THE INSTANCE OF THE CITY
The Developer shall give the City a reasonable period of notice, not less than 14
(fourteen) days, in writing, before its completion of a Milestone wherein an inspection of
that Milestone shall be requested provided that the Developer shall give the City at least
2 (two) Business Days written notice of a final inspection required in relation to a
completed Housing Unit. The Parties agree in this regard that:
14.1
the City's Review Consultant referred to in clause 6.4 or other nominated
appointee shall undertake for and on behalf of the City the role and function of
the City in each inspection process; and
14.2
the inspection process will be an on-going process in respect of which the
Parties commit themselves to co-operate with each other and to adapt to
practical circumstances and arrangements so as not to delay or cause any
delay in the carrying out of required inspections; and
14.3
it shall be the responsibility of the Developer to call for all inspections required
to be carried out, specifically but not limited to inspections relating to final
completion of the Project; and
14.4
it shall be the responsibility of the City to issue, without delay (unless justified) 14.4.1 each Foundation Completion Certificate at the appropriate time; and
14.4.2 each Housing Unit Completion Certificate at the appropriate time; and
14.4.3 a Final Project Completion Certificate as at Completion Date which
certificate shall be signed by the City and be counter-signed by the
Developer and wherein shall be certified the final completion of the
entire Project.
15.
CONTRACT SUM
15.1
The total of the amounts payable by the City to the Developer with respect to
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State Funded Housing Units and all landscaping is entirely limited to the funding
actually received by the City in terms of the applicable national housing
programme, from the Housing Department of the PGWC.
15.2
The total of the amounts payable by the City to the Developer for the Bulk
Infrastructure is entirely limited to the MIG funding approved and the funds
allocated thereto.
15.3
Any increase in the funds envisaged in clause 15.1 and the funds envisaged in
clause 15.2 that is actually received as an allocation to the Project will apply to
the Project following approval of the applicable authority.
15.4
Funds allocations to the Developer are solely based on funds allocated to the
Project as agreed between the City and the Developer from time to time;
15.5
Funds are only payable after receipt of such funds from the funding authority
and as per the City’s Council approved budget;
15.6
No further City funds should be assumed or presumed unless confirmed
specifically in writing by the City.
15.7
The provisions of the Municipal Finance Management Act and any applicable
legislation shall apply at all times.
16.
PAYMENT OF THE CONTRACT SUM AND DEVELOPMENT CONTRIBUTIONS
The Contract Sum shall be payable by the City to the Developer in accordance with the
Milestone progress achievements described in the Development Plan, or in a separate
schedule specifically devoted to the payment and draw downs in regards the State
Subsidy amounts from time to time, as the Parties may agree, which will be attached as
a schedule to this Agreement. Notwithstanding the foregoing provisions of this clause
and the content of any schedule that may be attached to this Agreement as
contemplated above in this clause:
16.1
Payment of the Contract Sum shall be funded by the Housing Subsidies
payable by, and in accordance with the norms and standards of, the PGWC
and, accordingly, the Developer shall be paid, subject to the provisions of
clause 15.1 to clause 15.7, at the following intervals and times, as it is
contemplated will come to be reflected in the schedule(s) described in this
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clause 16 above, i.e.:
16.1.1 For the Internal Services
16.1.1.1
Payment by way of monthly draws in amounts certified as
payable in accordance with payment certificates issued by
the Professional Engineer engaged on the Project;
16.1.1.2
Retention on payments for Internal Services shall be
reflected in each such payment certificate and shall accord
with PGWC's norms; and
16.1.1.3
Payment of professional fees shall be made in accordance
with PGWC's norms and standards.
16.1.2 For Housing Units and landscaping
16.1.2.1
40% (forty percent) of the amount of the State Subsidy
applicable to the relevant Housing Unit on completion of the
slab and the issuance by the Professional Engineer
engaged on the Project of a Foundation Completion
Certificate wherein the amount payable is certified; and
16.1.2.2
30% (thirty percent) of the amount of the State Subsidy
applicable to the relevant Housing Unit on completion of
the brick work to roof-plate height and issuance by the
Quantity Surveyor engaged on the Project of a Roof Plate
Height Completion Certificate wherein the amount payable
is certified; and
16.1.2.3
30% (thirty percent) of the amount of the State Subsidy
applicable to the relevant Housing Unit on completion of
the Housing Unit, including the associated landscaping and
Internal Services, and the issuance of a certificate of Final
Completion, wherein the amount payable is certified; and
16.1.2.4
Each of the certificates referred to in clauses 16.1.2.1 to
clause 16.1.2.3 inclusive shall constitute a Completion
Certificate in relation to its subject matter and a payment
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certificate and shall provide for a deduction of 5% (five
percent) of the amount that would otherwise be payable
thereunder, which shall be retained in a fund as security for
the due discharge of any defect repair and similar
obligations of the Developer in relation to the relevant
Housing Unit, which retention fund shall be released to the
Developer by payment to the extent not lawfully required for
the aforementioned purpose, 3 (three) months after the
handing over of the relevant Housing Units.
16.2
Notwithstanding the provisions of clause 16.1, where more than a State Funded
Housing Unit is to be contained in a multi-storey building, subject to the same
provisions relating to deduction for retention fund purposes as are contained in
clause
16.1.2.4,
payment
and
Completion
Certificates
of
the
types
contemplated in the various sub-clauses of clause 16.1.2 shall be issued on
achievement of the milestones as set out in Annexure “C” hereto and the
further terms and conditions of this clause 16 shall apply thereto, mutatis
mutandis.
16.3
The value of the payments to be made for each relevant State Funded Housing
Unit shall be in accordance with MINMEC-approved State Subsidy amounts for
the financial year in which the relevant Housing Units to which the State
Subsidies relate are completed. Any increases in such State Subsidy amounts
over the corresponding Contract Sum amounts shall accrue in favour of the
Developer subject to such terms and conditions as the PGWC may impose and
such increases shall have the effect of and be deemed to be an increase
agreed between the Parties to the Contract Sum notwithstanding the fixed
contract price principle inherent in the turnkey basis of appointment of the
Developer hereunder.
16.4
Claims for payment made by the Developer and submitted to the City shall be
made by way of adequately narrated tax invoices which shall be accompanied
in every case by the relevant payment certificates referred to in clause 16.1.1.1
and clause 16.1.1.3 and in clause 16.1.2.4, and, subject to the City being
satisfied therewith, be approved and verified within 14 (fourteen) Business Days
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after submission or satisfaction on the part of the City, whichever may be the
later, provided that all such payment certificates relating to any claims by the
Developer for payment must be counter-signed by both Parties save where
certified by and pursuant to a ruling of the Expert Adjudicator in which case
such certification shall be sufficient and final in the stead of any such countersignature.
16.5
It is an express and specific condition term of this Agreement that all payments
payable by the City to the Developer pursuant to this clause 16 will be
dependent on, and will not be payable until, the corresponding State Subsidy
payments have been made to and received by the City by and from the PGWC,
provided that the Developer will not be expected nor be bound to continue with
the Development process without reasonable prospects that the PGWC will
indeed honour its payment commitments to the City.
16.6
Subject to the a-foregoing, payments due to the Developer pursuant hereto
shall be paid within 30 (thirty) days of the date of issue by the City to the City's
office in the Civic Centre of a payment instruction together with the relevant tax
invoices and payment certificates within the 14 (Fourteen) Business Day period
referred to in clause 16.4.
16.7
The a-foregoing notwithstanding, the City shall be entitled to withhold any
payment which relates to any part of the Works which is in dispute or where an
overpayment has been made.
16.8
All payments shall be made by the City to the Developer directly and only at the
special request of the Developer and if agreed to by the City in writing and on
such terms and conditions as the City may impose, payments may be made by
the City directly to third parties such as manufacturers and/or suppliers,
contractors and professionals engaged by the Developer.
It is, however,
specifically agreed that the City shall not be obliged to, and shall not, make
direct advance payments or deposits to any manufacturer or supplier of the
Developer who may require any such advance payment or deposit.
16.9
The following provisions shall relate to Development Contributions:
16.9.1 the Development Contributions will be payable in the manner governed
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by and in terms of the rules of the City; and
16.9.2 no Development Contributions will be made or become payable in
respect of the State Funded Housing Units; and
16.9.3 a 50% (fifty percent) Development Contribution will become payable in
respect of the GAP Houses; and
16.9.4 the full Development Contributions will become payable in respect of
the Open Market Units only.
17.
DEFECTS
17.1
Defects in the Works shall be measured against, be translated and be
interpreted in accordance with the specific approved designs relating to Internal
Services, Foundation Plans and approved Housing Unit Plans.
17.2
All defects shall, at the sole cost of the Developer, be repaired by the Developer
within time periods required by the City.
18.
EXTENSIONS
Where the Developer requires any time period for undertaking of part of the Project to
be extended, the Developer shall give the City written notice wherein shall be specified
the Developer’s reasons for its requirement and wherein a specified extension of time
shall be requested. In this regard:
18.1
the Developer shall give such written notice to the City as soon as it becomes
aware of the need or probable need for an extension; and
18.2
the City shall be entitled to require further and/or additional information from the
Developer in support of its request and the Developer shall furnish such
information without delay; and
18.3
the City shall not unreasonably refuse to grant extensions of time requested;
and
18.4
any dispute between the Parties on such a request shall be referred to the
Expert Adjudicator in terms of clause 23 for inspection and a ruling and whose
ruling in such regard shall be final and binding on the Parties; and
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18.5
any extension of time agreed upon by the City or approved by a ruling of the
Expert Adjudicator shall extend the final Completion Date accordingly unless
the contrary is either agreed upon in writing between the Parties or ruled by the
Expert Adjudicator.
19.
COMPLAINT PROCESS
The City shall be entitled to lodge a complaint with regard to any aspect of the
Developer's execution of the Works and, if it elects to do so, the following process shall
apply:
19.1
the City shall give the Developer written notice of its complaint setting out the
nature and full details thereof and specifying what remedial action, if any, is
required on the part of the Developer with regard thereto;
19.2
the Developer shall within not less than 14 (fourteen) days of its receipt of a
notice under clause 19.1, either undertake to completion the remedial work, if
any, specified therein, or if no such work is specified, deal with the complaint to
the reasonable satisfaction of the City or notify the City in writing that it will not
carry out any such remedial work or address the complaint to the reasonable
satisfaction of the City, as may be applicable, and giving reasons for its refusal
to do so;
19.3
either the City or the Developer shall be entitled to call, by way of written notice
to the other, for a joint inspection of any part of the Works in order to discuss
the complaint and the other party shall participate in such a joint inspection at
the time and on the date specified by the Party calling therefor;
19.4
each Party shall make available, for the purpose of such discussion, all records
and information in its possession or under its control which are relevant to the
complaint;
19.5
minutes of such inspection and discussion shall be kept and be circulated
amongst the Parties forthwith after the inspection and discussion and shall be
signed by each of the Parties;
19.6
any failure on the part of either Party to cooperate in this Complaint Process
may be referred to the Expert Adjudicator for an inspection and a ruling in terms
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of clause 23;
19.7
the invoking by either Party of this Complaint Process shall not entitle either of
the Parties to delay or suspend any part of the Works to which the notice given
under clause 19.1 does not relate,
19.8
provided that the Developer will be allowed similar opportunity and procedures
to be followed where the Developer intends lodging a complaint with regard to
any aspect of the City’s actions and/or performances in terms of this
Agreement.
20.
PENALTIES
Should the Developer fail, for whatever reason, to achieve practical completion of the
Works by the date provided for in the Development Plan extended, if applicable, in
terms of clause 18:
20.1
the City shall be entitled to engage the services of any third party to assist in
and/or to complete the Works to the stage of practical completion and at the
cost of the Developer whereupon the City shall be entitled to set-off against any
amounts owing by it to the Developer all costs so incurred; and/or
20.2
the City shall be entitled to claim against the Developer monetary penalties per
day for non-completion in relation to any Housing Unit not completed. Each
penalty payment shall be calculated from and inclusive of the date provided for
practical completion in the Development Plan, extended as aforesaid, if
applicable, and up to and inclusive of the actual date of practical completion and
shall be recoverable by the City from the Developer in terms of a recovery
statement of account included in a payment certificate issued in accordance with
the provisions of clause 16.
21.
SUMMARY TERMINATION
21.1
Should the Developer commit an act of insolvency or be placed under a winding
up order, provisional or final, or under a judicial management order or call a
meeting of its shareholders to pass a resolution for its winding up, voluntary or
otherwise (other than as part of a process of amalgamation or reconstruction) or
fail to discharge an judgment debt within 10 Business Days after any writ of
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execution in relation to such judgment debt is served upon the Developer, or
should the Developer become the subject of any other relief or enforcement
measure having the force of law and applicable to a company in financial
distress, the City shall, in any of such events, be entitled to terminate this
Agreement forthwith on written notice given to the Developer to such effect,
such termination to be without prejudice to any claim which the City may have
against the Developer for penalties and/or damages and/or otherwise arising
out of such termination.
21.2
Upon a notice of termination having been given in terms of clause 21.1:
21.2.1 the appointment of the Developer hereunder shall terminate forthwith;
and
21.2.2 the Developer's execution of the Development in its entirety shall
terminate forthwith; and
21.2.3 the Developer shall forthwith vacate the Land and the Improvements;
and
21.2.4 the Developer shall, when instructed by the City so to do and within
such reasonable period of time as shall be specified by the City,
remove from the Land all temporary buildings, plant, machinery and
surplus materials and goods which are then still on the Land and in
default of which removal the City may, at the cost of the Developer,
have the same removed and transported to the Developer, the
provisions of this clause being subject always to the provisions of
clause 21.2.5; and
21.2.5 the City shall be entitled to the use of any of the Developer's temporary
buildings, plant, machinery and surplus materials and goods still on the
Land at the date of termination aforementioned, for the purpose of the
completion of any part of the Improvements which is then outstanding.
The City may also employ any third parties to complete any outstanding
part of the Improvements and/or to rectify defects in any portion of
executed Improvements and may set-off the cost thereby incurred in
relation only to the Works against any monies payable by it to the
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Developer in terms of the Expert Adjudicator's report issued in terms of
clause 23. The Developer agrees, in this regard, that the City shall be
entitled, for the purpose of attempting to facilitate a continuation in the
execution of the Improvements (including the Works) with the least
possible disruption, to engage any of the contractors, professionals and
other third parties previously engaged by the Developer;
provided that the consequences of the coming into effect of the aforementioned
provisions, or any of them, including any action taken on the part of the City
shall be without prejudice to any claim which the City may have against the
Developer for penalties and/or damages and/or otherwise arising out of the
summary termination of this Agreement pursuant hereto.
21.3
Upon a summary termination of this Agreement in terms of clause 21.1 the City
shall instruct the Expert Adjudicator to compile a report on the status of the
Improvements (including the Works) executed by the Developer to date of
summary termination.
Such report shall contain a final calculation of any
monies due, for whatever cause, to the Developer in terms of this Agreement
taking into account retention monies and any other City claim capable of set-off
against the Developer as provided for herein elsewhere. Such report shall be
furnished to both the City and the Developer.
21.4
The City shall not be obliged to make, and shall not make, any payments to the
Developer in respect of any monies payable to it pursuant to the Expert
Adjudicator's report issued in terms of clause 21.3 until that report, including the
final calculation of monies due to the Developer, shall have been issued and
delivered to both Parties.
22.
EARLY TERMINATION
22.1
Should the Developer breach any
provision of this Agreement and fail to
remedy such breach within 30 (thirty) days, or such longer period required
under the circumstances which is reasonable to remedy such breach, from the
date of a written notice given to it by or on behalf of the City wherein the
remedying of such breach is demanded, the City shall be entitled to terminate
this Agreement forthwith by written notice give to the Developer to such effect,
such termination to be without prejudice to any claim which the City may have
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against the Developer for penalties and/or damages and/or otherwise arising
out of such termination.
22.2
Should the City breach any provision of this Agreement including but not limited
to a failure on its part to make any payment payable by it to the Developer, on
due date and fail to remedy such breach within 30 (thirty) days, or such longer
period required under the circumstances which is reasonable to remedy such
breach, from the date of written notice given to it by or on behalf of the
Developer wherein the remedying of such breach shall be demanded, the
Developer shall be entitled to terminate this Agreement without prejudice to any
claim which the Developer may have against the City for damages and/or
otherwise arising out of such termination.
22.3
Either Party may terminate this Agreement forthwith by written notice given to
the other Party to such effect on the cessation, due to circumstances beyond
the control of either Party, of the Works for a continuous and interrupted period
of not less than 90 (ninety) days or intermittently on more than 50 (fifty)
Business Days during a continuous period totalling 120 (one hundred and
twenty) days. In the event of a termination in terms of this clause, neither Party
shall have any claim against the other for penalties and/or damages and/or
otherwise arising out of such termination.
22.4
Upon termination of this Agreement in terms of any of the a-foregoing clauses –
22.4.1 the provisions of clause 21.2.1, clause 21.2.2 and, in the case of a
termination in terms of clause 22.1 clause 21.2.3, clause 21.2.4 and
clause 21.2.5 shall apply mutatis mutandis; and
22.4.2 the Developer shall remain responsible for the Land and the
Improvements (including the Works) until possession and occupation is
given to the City; and
22.4.3 possession and occupation of the Land and the Improvements
(including the Works) shall be given to the City within 14 (fourteen)
days of the date of termination; and
22.4.4 the Developer shall, when instructed by the City so to do and within
such reasonable period of time as shall be specified by the City,
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remove from the Land all temporary buildings, plant, machinery and
surplus materials and goods then on the Land.
23.
ADJUDICATION
23.1
Save for disputes of a legal nature which shall be subject to resolution by
mediation and arbitration under clause 24, any other dispute between the
Parties including but not limited to disputes of a technical nature, which arise
under or in connection with this Agreement shall be submitted to and be
determined by an Expert Adjudicator who shall act as an independent
adjudicator and not as an arbitrator and whose decision shall be enforceable as
a matter of contractual obligation agreed to between the Parties and not as an
arbitral award and whose decision shall be final and binding on both parties.
23.2
The Parties agree, in this regard, that:
23.2.1 the Expert Adjudicator shall be a person experienced in housing
development and, in particular, in low cost housing development and
his appointment shall be agreed to by both parties within a period of 14
(fourteen) days of the date on which one Party shall have proposed to
the other a particular person to act as the Expert Adjudicator. Failing
such agreement the Expert Adjudicator shall be:
23.2.1.1
in the case of a dispute relating to the foundations of, or any
building related aspect of, Housing Units, the Chairperson
for the time being of the NHBRC or his nominee; and
23.2.1.2
in the case of a dispute relating to the Internal Services,
the President for the time being of the South African
Association of Consulting Engineers or his nominee; and
23.2.1.3
in the case of any other dispute, the nominee of the
President for the time being of the Law Society of the Cape
of Good Hope or its successor;
either Party having the right, by way of written notice copied to the
other Party, to procure an appointment in terms of the aforegoing
provisions.
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23.3
The Expert Adjudicator shall be entitled to appoint such assessors as he may
reasonably require to assist him in his resolution of the dispute.
23.4
The Expert Adjudicator shall also be entitled to lay down whatever procedures
he reasonably requires to be followed with regard to his resolution of the dispute
including procedures relating to all aspects of his investigation and including but
not limited to the delivery of written submissions by each of the Parties
identifying the dispute and its contentions regarding the dispute and including
calling upon the Parties, by way of subpoena if necessary, to appear at a
hearing convened by the Expert Adjudicator for the purpose of receiving
evidence on the dispute and the contentions of the respective Parties with
regard thereto.
The Expert Adjudicator shall also be entitled, as will his
assessors, if any, to carry out such inspections of the Land and the
Improvements as he may from time to time consider necessary or otherwise
useful or as he may otherwise be obliged to carry out in terms of any of the
provisions of this Agreement.
23.5
The Expert Adjudicator shall furthermore be entitled to require any person other
than the Parties to appear at a hearing convened by him for the purpose of
giving evidence on any aspect of the dispute on which the Expert Adjudicator
may require evidence.
23.6
Each of the Parties shall be entitled to have its own witnesses appear at any
hearing convened as aforesaid for the purpose of giving evidence thereto with
regard to the dispute.
23.7
Each of the Parties may be present at any hearing convened as aforesaid and
shall be present if so required by the Expert Adjudicator.
23.8
Each of the Parties shall be entitled to have legal representation at each
hearing convened as aforesaid, unless otherwise mutually agreed between the
Parties in writing.
23.9
The Expert Adjudicator shall, in his award, incorporate such order as to costs
including the costs of himself, of any assessors, of any witnesses and of the
respective Parties including venue, recording and transcription costs, if
applicable, as he may in his discretion, determine.
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23.10
The Expert Adjudicator's award shall be in writing and shall be delivered to each
of the Parties as soon as possible after the completion of his investigation of the
dispute.
23.11
Should the Expert Adjudicator, after appointment, resign or be unable, for
whatever reason, to act, the Parties shall agree upon a substitute person of
equal experience and standing and failing agreement within 14 (fourteen) days
of the date of such resignation or the date on which such inability to act shall
have first become known to the Parties, the substitute Expert Adjudicator shall
be a person referred to in, and appointed in terms of, clause 23.2.1 the
provisions of which clause shall apply mutatis mutandis to such substitute
person. The provisions of clause 23.3 to clause 23.12, both clauses inclusive,
shall apply mutatis mutandis to the substitute Expert Adjudicator as if he were
the original Expert Adjudicator.
The substitute Expert Adjudicator shall,
additionally, have the power to settle any disputes submitted to the original
Expert Adjudicator but outstanding at the time of substitution.
23.12
The reference of any dispute for resolution by an Expert Adjudicator including a
substitute Expert Adjudicator in terms of this clause 23 shall not release either
Party from any liability for due performance of any of that Party's obligations
outstanding in terms of this Agreement which are not the subject matter of the
dispute.
24.
MEDIATION AND ARBITRATION
24.1
Any dispute between the Parties of a legal nature which arises under or in
connection with this Agreement shall be referred to mediation and arbitration in
accordance with the provisions contained in the ensuing clauses.
24.2
The dispute shall, in the first instance, be referred to mediation before a single
mediator appointed by agreement reached between the Parties. Should the
Parties be unable to reach such agreement within a period of 14 (fourteen) days
after one Party shall have given the other notice calling upon it to agree to the
appointment of a named mediator or if a deadlock has been reached during a
mediation hearing or if either Party shall give the other notice that it does not
wish to continue therewith, the mediation process shall end forthwith in which
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event the dispute may be referred to arbitration. Should the mediation process
be initiated and be proceeded with to its completion and should either of the
Parties be dissatisfied with the outcome of the mediation, the dispute may,
notwithstanding such mediation process, be referred to arbitration.
24.3
A referral to arbitration under clause 24.2 shall be at the instance of either Party
upon notice given to the other and in which notice shall be set out:
24.3.1 a concise statement describing the dispute; and
24.3.2 the names of not less than 3 (three) natural persons each of whom
shall be either a retired judge of the High Court of South Africa (the
"High Court") or a practising advocate or an attorney of the High Court
of not less than 10 (ten) years standing who the referring Party
proposes for appointment as the Arbitrator.
Should the Parties fail to agree to the appointment of an Arbitrator within 5 (five)
days after the delivery of a notice pursuant hereto, the President for the time
being of the Law Society of the Cape Good Hope or its successor shall, on the
request of the referring Party, appoint in writing an Arbitrator from amongst the
groups of persons contemplated in clause 24.3.2
24.4
Unless otherwise expressly agreed to in writing by the Parties:
24.4.1 the arbitration proceedings shall be held in Cape Town;
24.4.2 the arbitration shall be conducted in accordance with the rules (the
"Arbitration Rules") of the Arbitration Foundation of Southern Africa
("AFSA") but not through the offices of or under the auspices of AFSA,
unless the Parties should so agree in writing. Should AFSA, for any
reason, have ceased to exist at the time of the referral of the dispute to
arbitration, the arbitration shall be conducted in accordance with the
Standard Rules of the Association of Arbitrators of South Africa (which
rules are hereinafter also referred to as the "Arbitration Rules");
24.4.3 the Arbitrator shall be entitled, in his or her sole discretion, on the
written application of a Party to the dispute (which application shall be
made in a manner acceptable to the Arbitrator) at any time after the
referral of the dispute to Arbitration, to amend the Arbitration Rules
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and/or any time period provided for therein and/or to supplement the
Arbitration Rules in the interests of resolving the dispute effectively,
efficiently and economically (but provided that no such amendment or
supplemental rule shall operate retrospectively);
24.4.4 the Arbitration shall be subject to the provisions of the Arbitration Act,
1965 (the "Arbitration Act");
24.4.5 the Arbitration proceedings shall be conducted as expeditiously as
possible;
24.4.6 the Arbitrator shall be entitled to determine his or her own jurisdiction
and shall be entitled of his own volition to raise matters as if the dispute
was being heard before a judge of the High Court.
24.5
The provisions of this clause 24 shall prevail to the extent of there being any
conflict between the Arbitration Rules and this clause 24.
24.6
The provisions of this clause 24:
24.6.1 constitute an irrevocable consent by the Parties to the Arbitration
proceedings provided for herein and neither Party shall be entitled to
withdraw from the provisions of this clause 24 or claim at any such
proceedings that it is not bound by this clause 24or such proceedings;
and
24.6.2 are severable from the rest of this Agreement and shall remain in effect
despite the termination, cancellation or invalidity or alleged invalidity of
this Agreement for any reason whatsoever.
24.7
Nothing in this clause 24 shall preclude a Party from seeking interim and/or
urgent relief from the High Court for the protection of any rights pending the final
determination of the dispute.
25.
THE DEVELOPER'S ROLE IN PROCESS ADMINISTRATION, LEGAL COMPLIANCE
AND IN THE FUNDING, MARKETING AND HAND-OVER PROCESSES
The following additional Project provisions shall apply in relation to the Developer:
25.1
The Developer shall be responsible for attending to all process administration
required from time to time in relation to any aspect of the Project and shall
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Dev. Agt. Draft 5 (FAL)
24.05.2011
procure that all such process is undertaken and executed in accordance with all
relevant legal and other requirements emanating from whatever source.
25.2
The Developer shall procure that its undertaking of the Project to completion
shall at all times comply with all National, Provincial, Local Authority and
Municipal requirements including but not limited to statutory, regulatory and bylaw provisions and, furthermore, that all other laws applicable to any aspect of
the Project shall likewise be fully complied with including but not limited to
Income Tax and Labour Law statutory and regulatory provisions.
25.3
The Developer shall:
25.3.1 draft and finalise the applications to the relevant authority for all funding
associated with the State Funded Housing Units; and
25.3.2 in all ways reasonably possible, assist the City in its application for MIG
funding for the installation and provision of Bulk Services insofar as
may still be required; and
25.3.3 take all reasonably possible steps to attempt to source and procure
funding for the Purchasers of Privately Funded Housing Units; and
25.3.4 in liaison with the City, run an efficient and generally acceptable
marketing campaign for the sale of Privately Funded Housing Units.
25.4
The Developer shall, furthermore, hand over to the City on the completion of the
Project all documentation and records of whatever nature which are relevant to
the Project and which may be reasonably required by the City.
25.5
Notwithstanding anything to the contrary contained in this clause 25, if there is
any conflict between any provision of this clause 25 and any other provision of
this Agreement, the provisions of this clause 25 shall prevail.
26.
CONFLICT
Should any conflict arise between any provision of this Agreement and the Proposal Call
and/or the Bid Proposal and/or any of the Plans, the provisions of this Agreement shall
prevail.
27.
PROHIBITION AGAINST ASSIGNMENT
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The Developer shall not, without the prior written consent of the City, which consent may
be withheld in the absolute discretion of the City, cede any of its rights nor delegate any
of its obligations under this Agreement to any third party.
28.
GUARANTEE
The Developer shall furnish the City before the Commencement Date with a guarantee
for the performance of its undertaking and execution of the Project in phases, which
guarantee shall be by way of the furnishing of a surety or sureties and/or by way of a
performance guarantee meeting, in all instances, with the reasonable approval of the
City.
29.
DOMICILIUM AND NOTICES
29.1
The parties hereto choose domicilia citandi et executandi for all purposes of and
in connection with this Agreement as follows:
29.2
The City
____________________________
____________________________
____________________________
____________________________
Facsimile No.
____________________________
The Developer
____________________________
____________________________
____________________________
____________________________
Facsimile No.
____________________________
Either party shall be entitled to change its domicilium from time to time provided
that any new domicilium selected by it shall be a street address and any such
change shall only be effective upon receipt of notice in writing from the other
Party of such change.
29.3
All notices, demands, communications or payments intended for either Party
shall be made or given in writing at such Party's domicilium for the time being.
A notice sent by one Party to the other shall be deemed to be received:
29.3.1 on the date of delivery, if delivered by hand;
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Dev. Agt. Draft 5 (FAL)
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29.3.2 on the 5th (fifth) day after the date of posting, if sent by prepaid
registered post;
29.3.3 on the day of despatch, if sent by facsimile transmission.
29.4
Notwithstanding anything to the contrary herein contained a written notice or
communication actually received by a Party shall be an adequate written notice
or communication to it notwithstanding that it was not sent nor delivered to its
chosen domicilium citandi et executandi.
30.
JURISDICTION AND GOVERNING LAW
30.1
Subject to the provisions of clause 23 and clause 24, this Agreement and any
matter arising from it shall be subject to the jurisdiction of the High Court of
South Africa, Western Cape High Court, Cape Town.
30.2
For the purpose of clause 30.1 the Parties submit to the jurisdiction of the Court
referred to in that clause and appoint as their domicilia for those purposes their
respective addresses set out in clause 29.1, subject to any changes therein
made in terms of clause 29.2.
30.3
This Agreement shall be subject to and shall be governed by the laws of South
Africa.
31.
WHOLE AGREEMENT
This Agreement constitutes the entire agreement between the Parties regarding the
subject matter hereof. No agreements, guarantees or representations, whether verbal or
in writing, have been concluded, issued or made upon which either Party is relying in
concluding this Agreement, save to the extent set out herein.
32.
NO VARIATION
No variation of, or addition to or agreed cancellation of this Agreement, shall be of any
force or effect unless it is reduced to writing and signed by or on behalf of both Parties.
33.
NO WAIVER
No waiver or indulgence of whatsoever nature shall be of any force of effect, including a
waiver or indulgence in respect of this clause, unless it is reduced to writing and signed
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24.05.2011
by or on behalf of both Parties.
34.
GOOD FAITH
Each of the Parties hereby undertakes during the existence of this Agreement –
34.1
to show to each other, at all times, the utmost good faith in its dealings with
each other; and
34.2
to do all of such reasonable things, perform all such reasonable actions and
take all such reasonable steps as may be open to it and necessary for and
incidental to the implementation of the terms and conditions of this Agreement.
35.
INDULGENCES, LENIENCY AND EXTENSIONS
No indulgence, leniency or extension of time which a Party may grant or show to the
other will in any way prejudice the grantor Party or preclude the grantor Party from
exercising any of its rights in the future.
36.
SEVERABILITY
If any particular provision or part of a provision of this Agreement is found to be defective
or unenforceable or is cancelled for any reason (whether by any competent Court or
otherwise) then the remaining provisions (or parts of such a provision) shall continue to
be of full force and effect.
Each provision and each part of each provision of this
Agreement shall accordingly be construed as entirely separate and separately
enforceable in the widest sense from the other provisions (or parts of such a provision)
hereof. In particular but without limiting the generality of the aforegoing, clause 23 and
clause 24 shall survive any termination of this Agreement and shall remain in full force
and effect, any termination of this Agreement notwithstanding.
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SIGNED at _____________________ on the _____ day of ___________________ 2011 in the
presence of the undersigned witnesses:
AS WITNESSES:
1. _________________________
For and on behalf of
CITY OF CAPE TOWN
2. _________________________
___________________________________
City Manager
who warrants his authority hereto
SIGNED at _____________________ on the _____ day of ___________________ 2011 in the
presence of the undersigned witnesses:
AS WITNESSES:
1. _________________________
For and on behalf of
CALGRO M3 HOLDINGS LIMITED
2. _________________________
___________________________________
Director
who warrants his authority hereto
Annexure “A”
(Schedule of Land – Clause 1.24)
SG-21 Code
C05500050000980300000
C06700200000425800000
C06700200000226600000
C06700200000005500000
C06700200000224500000
C05500050000980600000
C06700200000004300000
C06700200000004500000
C06700200000226800000
C06700200000224600000
C06700200000007500000
C06700200000007600000
C06700200000005600000
C06700200000273200000
C06700200000273100000
C06700200000273400000
C06700200000007100000
C06700200000273800000
C06700200000273700000
C06700200000273500000
C06700200000273300000
C06700200000012500000
C06700200000014500000
C06700200000012600000
C06700200000014400000
C06700200000014700000
C06700200000013000000
C06700200000014200000
C06700200000014300000
C06700200000014600000
C06700200000013400000
C06700200000012700000
C06700200000014100000
C06700200000012900000
C06700200000012800000
C06700200000064900000
C06700200000013200000
C06700200000013300000
C06700200000013100000
C06700200000064600000
C06700200000258400000
C06700200000014000000
C06700200000013900000
C06700200000013500000
C06700200000013600000
C06700200000013700000
C06700200000013800000
C06700200000025100000
Size (m2)
480.1
40361.3
1538.8
821.7
326.6
475.1
2239.5
2100.3
10309.3
320.1
4775.5
2064.8
285.1
280.6
280.8
280.7
9058.2
349.5
369.4
280.6
280.7
11921.2
2259.1
30807.0
240.0
3983.9
2000.1
5004.5
1050.3
946.7
582.8
4560.5
1999.7
999.9
2000.0
760.1
3693.1
959.9
60.0
1000.1
1940.0
6703.1
957.2
2000.2
2010.1
2010.3
943.4
24176.8
GIS / Erf Number
73-9803
74-4258
74-2266
74-55
74-2245
73-9806
74-43
74-45
74-2268
74-2246
74-75
74-76
74-56
74-2732
74-2731
74-2734
74-71
74-2738
74-2737
74-2735
74-2733
74-125
74-145
74-126
74-144
74-147
74-130
74-142
74-143
74-146
74-134
74-127
74-141
74-129
74-128
74-649
74-132
74-133
74-131
74-646
74-2584
74-140
74-139
74-135
74-136
74-137
74-138
74-251
Usage (not Zoning)
1 DWELLING RES
Title Deed number
T15374/2002
RES VACANT LAND
RES VACANT LAND
T4802/1988
T3349/1990
VACANT OTHER ZONES
VACANT OTHER ZONES
RES VACANT LAND
T3349/1990
PLACE OF WORSHIP
T26637/1979
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
LIBRARY
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
1 DWELLING RES
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
MUNICIPAL DEPOT
VACANT COMM/BUS
RES VACANT LAND
RES VACANT LAND
VACANT COMM/BUS
RES VACANT LAND
RETAIL
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
PLACE OF WORSHIP
RES VACANT LAND
RES VACANT LAND
VACANT OTHER ZONES
T41759/1989
T34940/1984
T42676/1982
T64434/2001
T50557/2001
T72131/1998
T19221/1986
C06700200000272900000
C06700200000273000000
C06700200000272800000
C06700200000273600000
C06700040000425800000
C06700200000065200000
C06700200000240200000
363.1
343.7
4805.8
379.6
7500.3
32691.7
42935.8
281868.6
74-2729
74-2730
74-2728
74-2736
52-4258
74-652
74-2402
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
RES VACANT LAND
PUBLIC OPEN SPACE
MUNICIPAL DEPOT
T30646/1979
T25008/1970
Annexure “B”
(Map/s – Clause 1.24)
Annexure “C”
Milestone 1
Sub-structure
Plumbing Pre-fix
Electrical Pre-fix
Ground Floor Superstructure
Plumbing 1st Fix
Electrical 1st-fix
External Plastering
Internal Plaster Works
Milestone 2
1st Floor Slab
1st Floor Superstructure
Stairs to 1st Floor
Plumbing 1st Fix
Electrical 1st-fix
External Plastering
Internal Plaster Works
Milestone 3
2nd Floor Slab
2nd Floor Superstructure
Stairs to 2nd Floor
Plumbing 1st Fix
Electrical 1st-fix
External Plastering
Internal Plaster Works
Milestone 4
Roofing and Beam Filling
Carpentry and Joinery/Ceilings,Cabinetry
Glazing
Painting and Waterproofing
Milestone 5
Wall and Floor Tiling/Carpeting/Granolithic
Plumbing Final Fix
Electrical Final Fix
Sundry Items
TOTAL
%
Breakdown
10.00%
1.00%
1.00%
7.00%
1.00%
1.00%
2.00%
3.00%
Cum Total
10.00%
11.00%
12.00%
19.00%
20.00%
21.00%
23.00%
26.00%
4.00%
7.00%
2.00%
1.00%
1.00%
2.00%
3.00%
30.00%
37.00%
39.00%
40.00%
41.00%
43.00%
46.00%
4.00%
7.00%
2.00%
2.00%
2.00%
2.00%
3.00%
50.00%
57.00%
59.00%
61.00%
63.00%
65.00%
68.00%
6.00%
5.00%
4.00%
5.00%
74.00%
79.00%
83.00%
88.00%
4.00%
4.00%
2.00%
2.00%
100.00%
92.00%
96.00%
98.00%
100.00%