CITY OF TSHWANE METROPOLITAN MUNICIPALITY
PUBLIC PRIVATE PARTNERSHIP AGREEMENT AND SCHEDULES
FOR A TWENTY SEVEN YEAR CONCESSION FOR THE PROVISION OF SERVICED
ACCOMMODATION1
TO THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY
(ENTAILING THE DESIGN, CONSTRUCTION, FINANCING, OPERATION AND
MAINTENANCE OF NEW HEADQUATERS FOR THE CITY OF TSHWANE
METROPOLITAN MUNICIPALITY)
1
Note: Please note that the Agreement will be amended to provide for sectional delivery.
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New Municipal Headquarters Project
PPP Agreement
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February 2014
DATED
(1)
day of
2014
CITY OF TSWANE METROPOLITAN MUNICIPALITY
and
(2) THE "PRIVATE PARTY"
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PPP Agreement
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CONTENTS
PART A: PRELIMINARY
7
1
INTERPRETATION
7
2
EXECUTION AND DELIVERY OF DOCUMENTS
7
3
COMMENCEMENT, FINANCIAL CLOSE AND DURATION
8
4
PROJECT DOCUMENTS
9
5
THE PROJECT DELIVERABLES
9
6
ASSISTANCE AND CO-OPERATION\l 1
10
PART B: GENERAL PROVISIONS
7
11
GENERAL OBLIGATIONS AND RESPONSIBILITIES OF THE PRIVATE
PARTY
11
8
HEALTH AND SAFETY
12
9
BROAD BASED BLACK ECONOMIC EMPOWERMENT
13
10
WARRANTIES
13
11
INDEMNITIES AND LIABILITY
15
12
LIMITS ON LIABILITY
19
13
BACKGROUND INFORMATION
20
14
REPRESENTATIVES
20
15
EMERGENCY REACTION PLAN
22
PART C: LAND ISSUES
22
16
NATURE OF LAND INTEREST
22
17
CONDITIONS OF THE SITE
26
18
CONSENTS AND PLANNING
29
19
HERITAGE RESOURCES
29
20
UTILITIES
30
PART D: DESIGN AND CONSTRUCTION
31
21
THE DESIGN, CONSTRUCTION AND COMMISSIONING PROCESS
31
22
RIGHT OF ACCESS OF CoT'S REPRESENTATIVE
33
23
PROGRAMME AND DATES FOR COMPLETION
34
24
INDEPENDENT CERTIFIER
36
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PPP Agreement
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25
PRE-COMPLETION COMMISSIONING AND COMPLETION
37
26
FINAL COMPLETION COMMISSIONING
41
PART E: QUALITY ASSURANCE
43
27
43
QUALITY ASSURANCE
PART F: ICT PROJECT
46
28
46
INFORMATION AND COMMUNICATION TECHNOLOGY PROJECT
PART G: SERVICES
47
PART G: SERVICES
47
29
THE SERVICES
47
30
MAINTENANCE
47
31
MONITORING OF PERFORMANCE
51
32
COMMERCIAL DEVELOPMENT ACTIVITIES
Error! Bookmark not defined.
33
SITE SECURITY AND PERSONNEL ISSUES
55
34
STOCKS, CONSUMABLES, MATERIALS AND EQUIPMENT
56
PART H: PAYMENT AND FINANCIAL MATTERS
58
35
PAYMENT
58
36
INSURANCE
59
37
INFORMATION AND AUDIT ACCESS
69
PART I: CHANGES IN LAW AND VARIATIONS
73
38
UNFORESEEABLE CONDUCT
73
39
VARIATION PROCEDURE
76
PART J: COMPENSATION EVENTS, RELIEF EVENTS AND FORCE MAJEURE
77
40
COMPENSATION EVENTS
77
41
RELIEF EVENTS
79
42
FORCE MAJEURE
82
PART K: TERMINATION
84
43
PRIVATE PARTY EVENTS OF DEFAULT
84
44
CoT EVENTS OF DEFAULT
87
45
NON-DEFAULT TERMINATION
89
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PPP Agreement
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46
EFFECT OF TERMINATION
89
47
COMPENSATION ON TERMINATION
92
48
FINAL MAINTENANCE SURVEY
93
PART L: MISCELLANEOUS
94
49
ASSIGNMENT, SUB-CONTRACTING AND CHANGES IN CONTROL
94
50
INTELLECTUAL PROPERTY
95
51
CONFIDENTIALITY
98
52
TAXATION
99
53
CORRUPT GIFTS AND PAYMENTS
100
54
NOT USED
103
55
DISPUTE RESOLUTION PROCEDURE
103
56
NOTICES
103
57
AMENDMENTS
105
58
WAIVER
105
59
NO AGENCY
105
60
ENTIRE AGREEMENT
105
61
CONFLICTS OF AGREEMENTS
105
62
SEVERABILITY
106
63
COUNTERPARTS
106
64
COSTS AND EXPENSES
106
65
NO PRIVITY
106
66
MITIGATION
107
67
GOVERNING LAW AND JURISDICTION
107
68
FURTHER ASSURANCE
107
69
WAIVER OF SOVEREIGN IMMUNITY
107
70
NO BETTER, NO WORSE POSITION
107
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PPP Agreement
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SCHEDULES
1
DEFINITIONS AND INTERPRETATION
2
COMPLETION DOCUMENTS
3
BENEFICIAL OWNERSHIP OF THE PRIVATE PARTY
4
EMERGENCY REACTION PLAN
5
BROAD BASED BLACK ECONOMIC EMPOWERMENT
6
SPECIFICATIONS
7
THE PROGRAMME
8
REVIEW PROCEDURE
9
COLLATERAL AGREEMENTS
10
OUTLINE COMMISSIONING PROGRAMME
11
NOT USED
12
INDEPENDENT CERTIFIER AGREEMENT
13
PERFORMANCE STANDARDS AND PAYMENT MECHANISM
14
INSURANCES
15
VARIATION PROCEDURE
16
COMPENSATION ON TERMINATION
17
FINAL MAINTENANCE SURVEY
18
NOT USED
19
REFINANCING
20
DIRECT AGREEMENT
21
DISPUTE RESOLUTION PROCEDURE
22
CERTIFICATES
23
THE SITE
24
COMMERCIAL DEVELOPMENT ACTIVITIES
25
ICT INTERFACE AGREEMENT
26
SECTION 37(2) PRINCIPLES
27
RELOCATION PRINCIPLES
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PPP Agreement
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PUBLIC PRIVATE PARTNERSHIP AGREEMENT
THIS AGREEMENT is made the
day of
2014
BETWEEN:
(1)
THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY (the "CoT"); and
(2)
(the “Private Party”).
WHEREAS:
(A)
The CoT wishes to develop its Facilities and to consolidate services currently
provided at other locations in order to improve the quality and efficiency of the
services provided by CoT. In order to achieve this aim, the CoT proposes to enter
into a concession for the acquisition of a sustainable experience delivery
programme, including the design, construction, life cycle management and
financing of the Facilities and complementary support services.
(B)
Accordingly, the CoT requested proposals from interested persons for: (a) the
financing and construction of the Facilities; (b) the operation and maintenance of
the Facilities, entailing the provision of accommodation services, the management
of and the equipping, to the extent agreed, of the Facilities; and (c) the provision of
a relocation service in order to progressively move certain assets of the CoT from
their Existing Facilities
(C)
Proposals were submitted on behalf of the Private Party in response to the CoT's
invitation. Following negotiations, it appears to the CoT to be expedient for the
purpose of, or in connection with, the discharge of its functions to enter into this
Agreement, which sets out the terms and conditions upon which the Private Party
will carry out the Project.
(D)
In order to expedite the commencement of the Project, the CoT has financed the
carrying out of certain Early Works on the Site prior to the date of this Agreement.
The CoT requires the Private Party to take over the Early Works as of the date of
this Agreement, whereon: 1) the Early Works will form part of the Works; and 2) the
Private Party will assume liability for the Early Works.
(E)
The Project and the conclusion of this Agreement has been approved by the CoT in
accordance with Treasury Regulation 309 promulgated in terms of the Municipal
Finance Management Act, Act 56 of 2003.
NOW IT IS HEREBY AGREED AS FOLLOWS:
PART A: PRELIMINARY
1
INTERPRETATION
This Agreement shall be interpreted according to the provisions of Schedule 1
[Definitions and Interpretation].
2
2.1
EXECUTION AND DELIVERY OF DOCUMENTS
The Private Party represents and warrants to the CoT that it has provided to the
CoT, on or prior to the Signature Date, a copy, certified by one of its directors to be
a true and complete copy, of each of the following documents being duly executed
by all of the Private Party, Construction Subcontractor, Operations Subcontractor,
the Private Party’s shareholders and/or Lenders (as the case may be) and each
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such document being binding on and enforceable against, or being such that it will
come into full force and effect against, said persons who are parties to such
documents upon the Signature Date:
3
2.1.1
the Independent Certifier Agreement;
2.1.2
Collateral Agreements;
2.1.3
the Construction Subcontract, and the Operations Subcontract and the
Performance Guarantees relating to the Construction Subcontract,
executed by the parties to such agreements;
2.1.4
Site Development Plan Approval by the CoT;
2.1.5
Building Plan Approval by the CoT;
2.1.6
a certified up to date copy of the articles and memorandum of association,
the Shareholders' Agreement, and certificate in respect of the Private
Party further certified by the Private Party to the effect that such
documents do not conflict nor are in any manner inconsistent with the
performance by the Private Party of this Agreement;
2.1.7
a certified copy of the resolution of the shareholders of the Private Party
authorising the entry of the Private Party into this Agreement;
2.1.8
documents evidencing that equity in the Private Party will be subscribed
for on the Effective Date;
2.1.9
the Financing Agreements and certification from the Private Party that (1)
the Financing Agreements have become unconditional (other than any
condition relating to the conditionality of this Agreement) and (2) that all
conditions to the availability of funds to the Private Party under the
Financing Agreements have been satisfied or waived, accompanied by
evidence of the same; and
2.1.10
evidence of the insurances required in accordance with Clause 35
[Insurances] having been taken out by the Private Party and that the
policies comply with the requirements of this Agreement.
COMMENCEMENT AND DURATION
3.1
This Agreement shall commence on the Signature Date and shall terminate
automatically on the Expiry Date unless previously terminated in accordance with
the provisions of this Agreement.
3.2
With effect from the Effective Date, the CoT grants to the Private Party and the
Private Party accepts the rights, benefits, powers and obligations as conferred upon
it in terms of this Agreement, for the undertaking of the Project Deliverables. The
Private Party shall have no other rights or benefits or powers:
3.2.1
in relation to the Site and/or Facilities other than those as shall be
conferred to it in terms of this Agreement; and
3.2.2
in relation to the property of the CoT not being part of the CoT Assets,
Facilities.
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PPP Agreement
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4
4.1
PROJECT DOCUMENTS
The Private Party must comply with the provisions of the Project Documents and
may only:
4.1.1
terminate, or make any material amendment to or otherwise agree to such
termination or amendment of any Project Document; or;
4.1.2
in any material respect depart from its obligations (or waive or allow to
lapse any rights it may have in a material respect), or procure that others
in any material respect depart from their obligations (or waive or allow to
lapse any rights they may have in a material respect), under any Project
Document, save for this Agreement; or
4.1.3
enter into (or permit the entry into by any other person of) any agreement
replacing all or part of (or otherwise materially and adversely affecting the
interpretation of) any Project Document,
with the written agreement, not to be unreasonably withheld, of the CoT, provided
that the Private Party has submitted any amendment, or any course of action
referred to in relation to Clause 4.1.1 or 4.1.3 only to the CoT prior to effecting such
amendment, or proposed course of action and, in respect of the Subcontracts, the
Private Party has complied with Clause 48.2.1 [Assignment, Sub-contracting and
Changes in Control]. With regards to Clause 4.1.2, the Private Party shall notify the
CoT in writing upon the Private Party becoming aware of any such events arising or
occurring whether material or not.
4.2
The Private Party shall procure that any Project Document not executed
simultaneously with this Agreement is executed in the Agreed Form.
4.3
In the case where the Project Document is a Financing Agreement, the Private
Party shall provide the CoT with a copy of the relevant agreement in settled draft
form, not less than ten (10) Business Days before it enters into any Financing
Agreement (other than the initial Financing Agreements which are to be delivered
pursuant to Schedule 2 [Completion Documents] of this Agreement).
4.4
Without limiting the restrictions on amendments to the Project Documents in Clause
4.1 above, the Private Party shall furnish the CoT with a true and complete copy
(including all annexes) of any amendment to any Project Document or of any
Project Document not executed by the Signature Date, within ten (10) Business
Days of the date of the Private Party’s execution of such amendment or Project
Document, certified as a true copy by an officer of the Private Party.
5
THE PROJECT DELIVERABLES
5.1
Subject to, and in accordance with, the provisions of this Agreement, the Private
Party shall exercise its rights and perform its obligations included in the Project
Deliverables at its own cost and risk without recourse to the CoT save as otherwise
expressly provided in this Agreement.
5.2
Without prejudice to Clause 5.1 and Clause 37 [Unforeseeable Conduct] and
subject to the provisions of this Agreement, the Private Party shall at its own cost
and risk be solely responsible for procuring that the Project Deliverables are at all
times performed:
5.2.1
in accordance with Good Industry Practice;
5.2.2
to achieve the CoT’s Requirements;
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5.2.3
in accordance with the Private Party’s obligations in terms of this
Agreement;
5.2.4
in accordance with the Private Party’s Proposal;
5.2.5
in a manner that is not likely to be injurious to health, to cause death or to
cause damage to property or environment;
5.2.6
in a manner consistent with the CoT discharging its statutory duties and
functions; and
5.2.7
in compliance with all Laws and Consents (including without limitation the
giving of notices and the obtaining of any such Consents) and so as not to
prejudice the renewal of any such Consents.
5.3
The obligations in Clauses 5.2.1 to 5.2.7
5.4
are independent obligations. The fact that the Private Party has complied with one
obligation shall not be a defence to an averment that it has not complied with the
other obligation(s).
6
6.1
ASSITANCE AND CO-OPERATION
Obligations
Subject to Clause 6.2 [No Relief] each Party (the “First Party”) undertakes to cooperate with the other (the “Second Party”) in order to facilitate the performance of
this Agreement and in particular will:
6.2
6.1.1
use reasonable endeavours to avoid unnecessary complaints, disputes
and claims against or with the Second Party;
6.1.2
comply with the provisions of the Dispute Resolution Procedure in relation
to any such complaints, disputes and claims;
6.1.3
not interfere with the rights of the Second Party in performing its
obligations under this Agreement, nor in any other way hinder or prevent
the Second Party from performing those obligations or from enjoying the
benefits of its rights;
6.1.4
assist the Second Party in performing those obligations, so far as is
reasonably practicable; and
6.1.5
take reasonable steps to mitigate any foreseeable losses and liabilities of
the Second Party which are likely to arise out of any failure by the First
Party to take any of the steps referred to in Clauses 6.1.1 to 6.1.4.
No Relief
Nothing contained in Clause 6.1 [Obligations] shall:
6.2.1
interfere with the right of each of the Parties to arrange its affairs in
whatever manner it considers fit in order to perform its obligations under
this Agreement and, (in the case of the CoT), its statutory duties and
functions; or
6.2.2
oblige either Party to incur any additional cost or expense, or suffer any
loss of profit; or
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6.2.3
relieve either Party from any obligation contained in this Agreement
(subject to Clause 11 [Indemnities and Liability]) or from any obligation to
pay any debt due and payable under this Agreement.
PART B: GENERAL PROVISIONS
7
7.1
GENERAL OBLIGATIONS AND RESPONSIBILITIES OF THE PRIVATE PARTY
No other business
Without prejudice to the activities envisaged by Clause 29 [The Services], the
Private Party shall not engage in any business or activity other than the business or
activities included in, or otherwise required to enable the Private Party to provide,
the Project Deliverables.
7.2
Private Party Subcontractors
The Private Party shall not be relieved or excused of any responsibility, liability or
obligation under this Agreement by the appointment of any Subcontractor to carry
out any part of the Project Deliverables. As between the Private Party and the CoT,
the Private Party shall be responsible for the payment, performance, acts, defaults,
omissions, breaches and negligence of all Subcontractors. All references in this
Agreement to any performance, payment, act, default, omission, breach or
negligence of the Private Party shall be deemed to include any of the same by a
Subcontractor.
7.3
Collateral Agreements
7.3.1
The Private Party shall procure that the Construction Subcontractor and
the Operations Subcontractor enter into an agreement substantially in the
form set out in Schedule 9 (Collateral Agreements) Part 1 or Part 3 (as
appropriate).
7.3.2
The Private Party shall procure that if it or the Construction Subcontractor
appoints a consultant or a subcontractor, with design obligations then it or
that Construction Subcontractor, as the case may be, enters into an
agreement substantially in the form set out in Schedule 9 (Collateral
Agreements) Part 2 (as appropriate) with that consultant or subcontractor
in relation to the design obligations.
7.3.3
The Private Party shall further procure that if it or:
(a)
the Construction Subcontractor appoints any consultant or
subcontract who has entered into a contract for an annual value
of R40 000 000,00 (forty million Rand) (Index linked) and above
in relation to the Project; or
(b)
the Operations Subcontractor appoints any consultant or
subcontract who has entered into a contract for an annual value
of R1 000 000,00 (one million Rand) (index linked) and above in
relation to the Project,
then it or the Construction Subcontractor or the Operations Subcontractor,
as the case may be, will obtain that consultant or subcontractor’s consent
to the assignment by the relevant consultant or subcontractor of its rights
and obligations under its subcontract to the CoT, Private Party or a
replacement Subcontractor on termination of the relevant Subcontract.
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7.3.4
8
The Private Party shall in the case of the Subcontracts not vary the terms
of such contracts other than in accordance with Clause 4 [Project
Documents].
HEALTH AND SAFETY
8.1
The Private Party shall throughout the progress of the Works and the conduct of the
other Project Deliverables have due regard for the safety of all persons from time to
time on the Site and shall keep the Site, the Works and the Facilities in an orderly
state, appropriate in accordance with Good Industry Practice, to avoid danger to
such persons. The Private Party shall take such measures as are reasonable in
accordance with Good Industry Practice to prevent access onto the Site and/or the
Facilities of any persons or creatures not entitled to be there and subject to any
agreement as may be reached between the Private Party and the CoT from time to
time with reference to those CoT Policies regulating access to CoT premises.
8.2
The Private Party shall also be responsible for the observance, by itself and the
Subcontractors in relation to conducting the Project Deliverables during the Project
Term, of all Laws concerning building works and fire prevention.
8.3
The Private Party shall maintain proof of compliance with the Occupational Health
and Safety Act, as is required by the Occupational Health and Safety Act and
produce the same to the CoT after the next Business Days of a request for same.
8.4
Accidents involving the Private Party’s or the Subcontractor’s employees, which
ordinarily require reporting in accordance with the Occupational Health and Safety
Act, shall also be reported as soon as is practicable to the CoT.
8.5
Without derogating from any of the obligations under this Clause 8 [Health and
Safety], both the CoT and the Private Party shall each be responsible for the health
and safety precautions and requirements in respect of each of its own employees
and/or third party, as provided for in the Occupational Health and Safety Act and the
regulations promulgated thereunder, save to the extent that the liability in respect of
a breach of a particular provision under the Occupational Health and Safety Act is
regulated under this Agreement in terms of Clause 8.8.
8.6
The Private Party and/or its responsible persons and Employees shall provide full
co-operation and information if and when the CoT or its health and safety
representative inquires into occupational health and safety issues concerning the
Private Party. It is hereby recorded that the CoT and its health and safety
representative shall at all times be entitled to make such inquiry.
8.7
Notwithstanding the provisions of Clauses 8.1 to 8.5, the CoT shall not be liable in
respect of a breach of any of the provisions under the Occupational Health and
Safety Act in relation to the performance of the Project Deliverables by the Private
Party, the Subcontractors and any of their employees to the extent agreed upon by
the respective parties to the Section 37(2) undertaking given on the principles set
out in Schedule 26 [Section 37(2) Principles].
8.8
The Private Party shall provide the Section 37(2) Undertaking in respect of itself
and each Subcontractor prior to such entity entering the Site and ensure that the
Subcontractors comply with their obligations in respect thereof. It being recorded
that the Private Party shall remain responsible for the compliance of each
Subcontractor with the principles set out in Schedule 26 [Section 37(2) Principles],
including providing full co-operation and information if and when the CoT requests
same in respect of the occupational health and safety issues concerning the Private
Party, or the Subcontractors.
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8.9
The Private Party acknowledges that the Section 37(2) Undertaking constitutes an
agreement in terms of Section 37(2) of the Occupational Health and Safety Act, in
terms of which, all responsibility (both civil and criminal) for health and safety
matters in relation to the performance of the Project Deliverables by the Private
Party and any of its employees, shall be that of the Private Party.
8.10
Notwithstanding the Section 37(2) Undertaking, the Parties agree, that nothing
contained therein derogates from the Private Party’s obligations in terms of the
Agreement and its schedules (other than Schedule 26 [Section 37(2) Principles]).
9
BROAD BASED BLACK ECONOMIC EMPOWERMENT
The Private Party shall comply with and shall ensure that each Private Party Party
complies with the Broad Based Black Economic Empowerment obligations specified
in Schedule 5 [Broad Based Black Economic Empowerment].
10 WARRANTIES
10.1
Private Party Warranties
The Private Party warrants at the Signature Date:
10.1.1
the legal and beneficial ownership of the Private Party at the Effective
Date is as set out in Schedule 3 [Beneficial Ownership of the Private Party]
10.1.2
it and Operations Subcontractor will continue to be duly incorporated
under the laws of South Africa and the Private Party has and will continue
to have the corporate power to own its assets and carry on its business;
10.1.3
the Construction Subcontractor will continue to be duly established under
the laws of South Africa;
10.1.4
it has taken all necessary actions to authorise its execution of this
Agreement and the performance of its obligations under the Project
Documents;
10.1.5
all Project Documents have been duly executed by it on proper authority
and are in full force and effect, save for those Project Documents that will
be executed in the Agreed Form after the date of this Agreement on proper
authority;
10.1.6
the execution, delivery and performance of the Project Documents do not
and will not contravene:
10.1.7
(a)
any provision of the memorandum or articles of association of
the Private Party;
(b)
any order or other decision of any Responsible Authority or
arbitrator that is binding on the Private Party or any
Subcontractors; or
(c)
any legal obligation which is binding upon the Private Party;
all Consents required to be obtained by the Private Party for the conduct of
the Project Deliverables are in full force and effect, save for any Consents
which are not required under applicable Law to be obtained by the
Signature Date; provided that the Private Party warrants that it knows of no
reason (having made all reasonable enquiries in this regard) why any such
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Consent will not be granted on reasonable terms by the time it is required
to obtain such Consent;
10.1.8
no claim against the Private Party, or its assets, is presently being
assessed and no litigation, arbitration, investigation or administrative
proceeding is in progress or, to the best of the knowledge of the Private
Party having made all reasonable enquiries, pending or threatened against
the Private Party, or any of its respective assets which will, or is likely to
have, a material adverse effect on the ability of the Private Party to
perform its obligations under any Project Documents to which it is a party.
Neither is the Private Party nor any Consortium Member pursuing, or
threatening to pursue, any claim against a third party which could have
similar effects;
10.1.9
the Private Party is not subject to and will not subject itself to, any
obligation, compliance with which will, or is likely to have, a material
adverse effect on the ability of the Private Party to perform its obligations
under any Project Documents;
10.1.10 no proceedings or any other steps have been taken and not discharged
(nor, to the best of the knowledge of the Private Party having made all
reasonable enquiries) threatened for the winding-up or liquidation (whether
voluntary or involuntary, provisional or final), judicial management
(whether provisional or final) or deregistration of the Private Party or for the
appointment of a liquidator, judicial manager or similar officer in relation to
any of its assets or revenues;
10.1.11 the items referred to in Clauses 49.1 and 49.2 [Intellectual Property]
brought into existence by or on behalf of the Private Party will be original
or authorised for use by the Private Party and/or in connection with the
Project Deliverables (save to the extent that instructions and specifications
for the Design Data or the Works may have been supplied by or on behalf
of the CoT) and to the best of the knowledge, information and belief of the
Private Party will not infringe any third party’s copyright, design rights,
trademark or any other intellectual property rights;
10.1.12 all information disclosed or supplied by or on behalf of the Private Party to
the CoT at any time up to the Signature Date and, in particular during the
bid process preceding the award of this Agreement to the Private Party, is
true, complete and accurate in all material aspects and the Private Party is
not aware of any material facts or circumstances which have not been
disclosed to the CoT and which would, if disclosed, be likely to have an
adverse effect on the CoT’s decision (acting reasonably) whether or not to
award this Agreement to the Private Party;
10.1.13 the copies of the executed Project Documents, which the Private Party
has delivered or, when executed, will deliver to the CoT are or, as the case
may be, will be true and complete copies of such Project Documents and
there are not in existence any other agreements or documents replacing or
relating to any of the Project Documents which would materially affect the
interpretation or application of any of the Project Documents;
10.1.14 the Private Party has an authorised and issued share capital as set out in
Schedule 19 [Private Party Information] and all issued shares in the issued
share capital of the Private Party are fully paid up;
10.1.15 the issued shares in the issued share capital of the Private Party are
legally and beneficially owned as represented in Schedule 19 [Private
Party Information];
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10.1.16 save as provided for by, or pursuant to, the Financing Agreements or the
Shareholders Agreements no person has the right (whether actual or
contingent) to call for the issue of any share or loan capital in the Private
Party under any option or other agreement, arrangement or commitment
(including without limitation conversion rights and rights on realisation of
security);
10.2
(a)
save as provided for by, or pursuant to, the Financing
Agreements or the Shareholders Agreements there is no
encumbrance over or affecting any of the issued or unissued
shares or other capital of the Private Party and there is no
agreement, arrangement or commitment whatsoever to give,
grant or create any of the foregoing; and
(b)
there is no litigation, arbitration, prosecution or administrative or
other legal proceedings or dispute in existence or, to its actual
knowledge, threatened against the Private Party in respect of
any part of the share capital of the Private Party (allotted or
unallotted) and there are no facts known to the Private Party
which might give rise to any such proceedings or any such
dispute.
CoT Warranties
The CoT warrants and undertakes as at the Signature Date that:
10.2.1
all necessary actions to authorise the execution by the CoT of, and
performance of, its obligations under this Agreement have been taken; and
10.2.2
it has not knowingly omitted to disclose any material information in its
possession or under its control relating to the CoT Assets for purposes of
its use by the Private Party in terms of this Agreement.
11 INDEMNITIES AND LIABILITY
11.1
The Private Party's indemnities to the CoT
Subject to 11.3 below, the Private Party shall indemnify and hold the CoT harmless
at all times from and against all losses sustained by the CoT in consequence of:
11.1.1
any:
(a)
personal injury to or death of any person whatsoever (“Private
Party's Personal Losses Indemnity”);
(b)
breach of a statutory duty arising under applicable Law
(including without limitation and/or, any penalty imposed on the
CoT in terms of applicable Law);
(c)
loss of, or damage to, any property, real or personal of the CoT
or any other person whatsoever (including without limitation CoT
Assets) or the Private Party’s employees, agents or
subcontractors (of any tier) or of any other person whatsoever.
(“Private Party Property Losses Indemnity”); or
(d)
other claim, action, charge, cost, demand or expense (other than
any amounts expressed to be payable by the CoT to the Private
Party pursuant to any Project Document),
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(including without limitation, any reasonable legal fees or costs where the
Private Party, in terms of Clause 11.5.2 below, disputes the claim or
conducts all negotiations and court, tribunal or other proceedings in
respect of any claim, or any legal fees or costs where the Private Party
does not do so) insofar as such personal injury, or breach of a statutory
duty or penalty or claim, action, charge, cost, demand or expense loss or
damage arises out of or is caused by, the Private Party’s performance or
non-performance of this Agreement (including acts or omissions of the
Private Party’s employees, agents or subcontractors of any tier in their
capacity as such);
11.2
11.1.2
any breach by the Private Party of any warranties given by the it in this
Agreement
11.1.3
The Private Party’s liability under this Clause for any claim (a “Relevant
Claim”) brought pursuant to the provisions of this Clause 11.1 shall be
limited to the amount in respect of which the Private Party is indemnified
under the Insurances listed in Schedule 14 [Insurance Policies] against the
Relevant Claim; provided that where the Private Party is not indemnified
against the Relevant Claim under any of the Insurances listed in Schedule
14 [Insurance Policies] due to the Private Party’s negligence, wilful
misconduct or any breach of its obligations in respect to Clause 35
[Insurance] or its obligations in Schedule 14 [Insurance Policies] (“Private
Party Insurance Default”), the Private Party shall nevertheless be liable for
the Relevant Claim, up to the amount which the Private Party would have
been indemnified against under any of the Insurances listed in Schedule
14 [Insurance Policies] were it not for the Private Party’s Insurance
Default, notwithstanding that the Private Party is not indemnified against
the Relevant Claim by any of the Insurances listed in Schedule 14
[Insurance Policies].
The CoT’s Indemnities to the Private Party
The CoT shall, subject to Clause 12.5 below, indemnify and keep the Private Party
indemnified at all times against all direct losses sustained by the Private Party as a
consequence of the gross negligence or wilful misconduct of the CoT their
employees, agents, visitors, or subcontractors (of any tier).
11.3
Extent of the Private Party’s Liability
The Private Party’s liability to indemnify the CoT shall not extend to any Private
Party's Personal Losses Indemnity, Private Party's Property Losses Indemnity, any
breach of a statutory duty arsing under applicable Law (including without limitation
and/or, any penalty imposed on the CoT in terms of applicable Law) or claim,
action, charge, cost, demand or expense to the extent that they::
11.3.1
arises from, or are caused or contributed to by, any negligence or
misconduct of the CoT, their employees, agents, visitors or subcontractors
(of any tier) or the performance or non-performance by the CoT of its
obligations under this Agreement provided that such loss could not have
been prevented by the Private Party in complying with its obligations in
terms of this Agreement;
11.3.2
are covered by any insurance policy being maintained by or on behalf of,
the Private Party or the CoT and under which insurance proceeds have
actually been received or are receivable by the CoT; or
11.3.3
occurred as a result of a Force Majeure or Relief Event (save where they
are suffered as a result of a failure by the Private Party to comply with all
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of its obligations in terms of this Agreement, including obligations arising
from the occurrence of such Force Majeure or Relief Event).
11.4
Vitiation of Insurance
The CoT shall not be entitled to take the benefit of the indemnity pursuant to Clause
11.1 to the extent that the amount which it would otherwise be entitled to recover
from the Private Party, is not recoverable by the Private Party under the Insurances
because the Insurances have been vitiated, invalidated or any payment under the
same is reduced or withheld, in any such case, by reason of any act, omission or
default on the part of the CoT.
11.5
Conduct of claims
This sub-clause shall apply to the conduct, by the Private Party from whom an
indemnity is sought under this Agreement, of claims made by a third person against
the CoT having (or claiming to have) the benefit of the indemnity. Accordingly:
11.5.1
if the CoT receives any notice, demand, letter or other document
concerning any claim for which it appears that the CoT is, or may become
entitled to, indemnification under this Agreement, the CoT shall give notice
in writing (together with a copy of such notice, demand, letter or other
document) to the Private Party as soon as reasonably practicable and in
any event within ten (10) Business Days of receipt of the same;
11.5.2
subject to Clauses 11.5.3, 11.5.4 and 11.5.5 below, on the giving of a
notice by the CoT pursuant to Clause 11.5.1 above, where it appears that
the CoT is or may be entitled to indemnification from the Private Party in
respect of all liability arising out of the claim, the Private Party shall subject
to the rights of the insurers under the Insurances be entitled, by giving
notice to the CoT of its intention to do so, to dispute, the claim or to
conduct all negotiations and court, tribunal or other proceedings in respect
thereof, in the name of the CoT at the Private Party's own expense and
take conduct of any defence, dispute, compromise, or appeal of the claim
and of any incidental negotiations. The CoT shall give the Private Party all
reasonable co-operation, access and assistance for the purposes of
considering and resisting such claim all of which shall be provided by the
CoT at the cost of the Private Party (such costs being reasonable and fair);
11.5.3
with respect to any claim conducted by the Private Party pursuant to
Clause 11.5.2 above:
11.5.4
(a)
the Private Party shall keep the CoT fully informed and consult
with it about material elements of the conduct of the claim;
(b)
the Private Party shall not bring the name of the CoT into
disrepute; and
(c)
the Private Party shall not pay or settle such claims without the
prior consent of the CoT, such consent not to be unreasonably
withheld or delayed;
the CoT shall be free to pay or settle any claim on such terms as it thinks
fit and without prejudice to its rights and remedies under this Agreement if:
(a)
the Private Party is not entitled to take conduct of the claim in
accordance with Clause 11.5.2 above; or
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(b)
the Private Party fails to notify the CoT of its intention to take
conduct of the relevant claim within twenty (20) Business Days
of the notice from the CoT under Clause 11.5.1 above or notifies
the CoT that it does not intend to take conduct of the claim; or
(c)
the Private Party fails to comply in any material respect with the
provisions of Clause 11.5.2 above;
11.5.5
Should the CoT settle, admit, or compromise any claim by a third party,
other than under circumstances referred to in Clause 11.5.4, in respect of
which it seeks to be indemnified under this Agreement without the prior
consent of the Private Party, then the Private Party's obligation to
indemnify the CoT shall be limited to the extent to which the third party
claimant would have in law been able to recover such claim from the CoT
but for the admission, settlement or compromise thereof. Should the
Private Party receiving notice referred to in Clause 11.5.1 not respond
within twenty (20) Business Days to the CoT regarding any proposed
admission, settlement or compromise of any claim that has been notified to
it in terms of 11.5.1 then the Private Party shall be deemed to have given
its consent to the proposed terms of admission, settlement or compromise
of a claim, which were communicated to it.
11.5.6
if the Private Party pays to the CoT an amount in respect of an indemnity
and the CoT subsequently recovers (whether by payment, discount, credit,
saving, relief or other benefit or otherwise) a sum which is directly
referable to the fact, matter, event or circumstances giving rise to the claim
under the indemnity, the CoT shall forthwith repay to the Private Party
whichever is the lesser of:
(a)
an amount equal to the sum recovered (or the value of the
saving or benefit obtained) less any out-of-pocket costs and
expenses properly incurred by the CoT in recovering the same;
and
(b)
the amount paid to the CoT by the Private Party in respect of the
claim under the relevant indemnity,
provided that there shall be no obligation on the CoT to pursue such
recovery, and provided that the Private Party is repaid only to the extent
that the amount of such recovery, aggregated with any sum recovered
from the Private Party exceeds any loss sustained by the CoT (including
for this purpose indirect or consequential losses or claims for loss of
profits which are excluded by this Agreement from being recovered from
the Private Party); and
11.5.7
11.6
any person taking any of the steps contemplated by Clauses 11.5.1 to
11.5.5 shall comply with the requirements of any insurer who may have an
obligation to provide an indemnity in respect of any liability arising under
this Agreement.
Conduct of claims
Subcontractor
by
Construction
Subcontractor
or
Operations
Where the Private Party is indemnified by either the Construction Subcontractor or
the Operations Subcontractor for a claim in respect of which it has given an
indemnity under this Clause 11, the Private Party shall be entitled to permit the
Construction Subcontractor or the Operations Subcontractor, as the case may be,
to conduct the claim on its behalf, provided that the Private Party shall procure that
the claim is conducted in accordance with this Clause 11 and the Private Party shall
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remain solely liable to the CoT for compliance with all of the Private Party's
obligations under this Clause 11.
12 LIMITS ON LIABILITY
12.1
Save for:
12.1.1
the CoT’s right to claim at any time the amount of any direct losses
incurred by it as a result of rectifying or mitigating the effects of any Private
Party Event of Default; and
12.1.2
any other express right of the CoT under this Agreement to be indemnified
against any third party claim,
(and subject to Clause 42.1.3 [CoT’s Options] the sole remedy of the CoT in respect
of any failure in the delivery of the Services shall be the operation of the Deductions
in accordance with the Payment Mechanism provided for in Schedule 13 Part 1
[Performance Standards and Payment Mechanism]
12.2
Nothing in Clause 12.1 shall prevent or restrict the right of the CoT to seek any
interdict or similar relief, any decree of specific performance or any other
discretionary remedies of a court or dispute resolution body or other tribunal.
12.3
If the Private Party is expressly entitled to any indemnification under this Agreement
for any losses incurred by it whether because of the conduct of the CoT or any
other cause, then the Private Party’s sole remedy in respect of such losses shall be
its indemnity and, accordingly, it shall not be entitled to any other remedy for such
losses whether pursuant to Clause 39 or otherwise provided that this shall not
detract from the Private Party’s rights pursuant to Clause 43 [CoT Events of
Default].
12.4
A Party who is entitled to any indemnification or other compensation under this
Agreement for any losses incurred by it, whether because of the conduct of the
other Party or for any other cause, shall, in respect of such losses, not be entitled
to:
12.4.1
any claim for damages based on breach of contract, or delict or on any
other basis in respect of such conduct or cause; or
12.4.2
any claim for its own or that of subcontractors loss of profit, loss of use,
loss of production, loss of business, loss of business opportunity, indirect,
special or consequential loss as a result of such conduct or cause other
than where such loss is specifically provided for as part of a compensation
in terms of this Agreement.
12.5
Save as otherwise provided in Clause 11.4 and 35.1.10 and to the extent the act or
omission is or ought to be covered by the Insurances set out in Schedule 14
[Insurances], the CoT shall not be liable whether in contract, in delict or as a result
of an indemnification in terms of this Agreement, or otherwise, to the Private Party
in respect of any negligent act or omission of the CoT, its employees, officials,
representatives or guests, which is or ought to be insured against pursuant to the
Insurances. The Private Party has agreed to this on the basis that it shall mitigate
the risks of any such negligent acts or omissions on the part of the CoT by obtaining
and maintaining Insurances.
12.6
Prohibition on Double Recovery
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No party shall be entitled to recover (whether pursuant to an indemnity or
otherwise) any loss to the extent that it has already been compensated for that loss
whether by way of insurance or otherwise.
13 BACKGROUND INFORMATION
13.1
The CoT has provided the Background Information in good faith and on the basis
that the Private Party and/or its members or consultants and/or the Construction
Subcontractor and the Operations Subcontractor and/or their members or
consultants, have conducted their own due diligence and each one of them has
taken their own advice with respect to the Background Information.
13.2
Notwithstanding Clause 13.1 and subject to the express provisions of this
Agreement, the CoT does not give any warranty or undertaking as to the
completeness, accuracy or fitness for any purpose of any of the Background
Information.
13.3
Subject to the express provisions of this Agreement, neither the CoT nor any of its
agents, employees, consultants or contractors shall be liable to the Private Party,
the Construction Subcontractor and the Operations Subcontractor in contract, delict
(including negligence or breach of statutory duty), or otherwise as a result of:
13.3.1
any inaccuracy, omission, unfitness for any purpose or inadequacy of any
kind whatsoever in the Background Information;
13.3.2
any failure to make available to the Private Party any materials,
documents, drawings, plans or other information relating to the Facilities;
or
13.3.3
any unlawfulness of any Background Information where such unlawfulness
is, or ought reasonably to be, known to the Private Party as at the date of
this Agreement through the conduct of a due diligence investigation or
otherwise.
14 REPRESENTATIVES
14.1
Representatives of the CoT
14.1.1
The CoT's Representative shall be [insert the name of the CoT’s
representatives]. The CoT's Representative shall exercise the functions
and powers which are devolved to him/her under this Agreement and any
such other of the CoT's functions and powers as the CoT may notify to the
Private Party from time to time.
14.1.2
The CoT shall be entitled at any time, by notice to the Private Party, to
authorise any other or additional person(s) to exercise the functions and
powers of the CoT's Representative, either generally or specifically. Any
act of any such person(s) shall, for the purposes of this Agreement,
constitute an act of the CoT's Representative and all references to the
"CoT's Representative" in this Agreement (apart from this Clause) shall be
taken as references to such person(s) so far as they concern matters
within the scope of such person(s)' authority.
14.1.3
The CoT may by written notice to the Private Party replace the CoT's
Representative. The CoT shall (as far as practicable) consult with the
Private Party prior to the appointment of any replacement(s) for the CoT's
Representative, taking account of the need for liaison and continuity in
respect of the Project. Such replacement(s) shall have effect on the date
specified in the written notice (which date shall, other than in the case of
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emergency, be such date as will not cause material inconvenience to the
Private Party in the execution of its obligations under this Agreement).
14.1.4
During any period when no CoT's Representative has been appointed (or
when the CoT's Representative is unable through illness, incapacity or any
other reason whatsoever to carry out or exercise his functions under this
Agreement) the CoT shall carry out the functions, which would otherwise
be performed by the CoT's Representative.
14.1.5
No act or omission of the CoT, the CoT's Representative or any officer,
employee or other person engaged by the CoT shall, except as otherwise
expressly provided in this Agreement:
14.1.6
14.2
(a)
in any way relieve or absolve the Private Party from, modify, or
act as a waiver or estoppel of, any liability, responsibility,
obligation or duty under this Agreement; or
(b)
in the absence of an express order or authorisation under this
Agreement, constitute or authorise a Variation.
The Private Party and the Private Party's Representative shall be entitled
to treat any act of the CoT's Representative as being expressly authorised
by the CoT and the Private Party and the Private Party's Representative
shall not be required to determine whether an express authority has in fact
been given.
Representative of the Private Party
14.2.1
The Private Party's Representative shall be [insert the name of the Private
Party representatives] or such other person appointed pursuant to this
Clause. The Private Party's Representative shall have full authority to act
on behalf of the Private Party for all purposes of this Agreement. Except as
previously notified in writing by the Private Party to the CoT before such
act, the CoT and the CoT's Representative shall be entitled to treat any act
of the Private Party's Representative in connection with this Agreement as
being expressly authorised by the Private Party and the CoT and the
CoT's Representative shall not be required to determine whether any
express authority has in fact been given.
14.2.2
The Private Party may by written notice to the CoT replace the Private
Party’s Representative. Where the Private Party wishes to do so, it shall,
by written notice to the CoT, propose a replacement(s) for the Private
Party's Representative, who shall be subject to the approval of the CoT
(which approval shall not be unreasonably withheld or delayed), and taking
account of the need for liaison and continuity in respect of the Project.
Such replacement shall have effect on the date specified in the Private
Party's written notice (which date shall, other than in the case of
emergency, be such date as will not cause material inconvenience to the
CoT with respect to all or any of the Project Deliverables).
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15 EMERGENCY REACTION PLAN
The parties shall comply with the provisions of the Schedule 4 [Emergency Reaction
Plan].
PART C: PROJECT SITE
16 NATURE OF LAND INTERESTS
16.1
Site
16.1.1
The CoT hereby makes available the Site and grants to the Private Party
(with effect from the Signature Date until the Expiry Date) the sole and
exclusive rights to enter, occupy, use and possess the Site on the terms
and conditions set out in this Clause 16 [Nature of Land Interests] for the
purposes of the Private Party carrying out the Works, providing the
Services, and otherwise complying with its obligations and exercising its
rights pursuant to this Agreement, subject to:
(a)
any rights of public passage or access over the Site during the
Service Period as reasonably required to enable the CoT to
perform its statutory duties or as otherwise agreed;
(b)
the rights of access of the CoT or its consultants or its agents
where the CoT, consultants or its agents act in terms of Clause
22 [Right of Access of CoT’s Representative] and compliance
with the Private Party’s Site rules; and
(c)
the right of access of any person arising under this Agreement
or pursuant to any Laws;
provided that, if the Expiry Date is extended, the Private Party's right to
enter, occupy, use and possess the Land shall also be extended.
16.2
16.1.2
The Private Party shall throughout the progress of the Works and the
conduct of the other Project Deliverables have regard for the safety of all
persons at the Site (whether lawfully or not) to the extent required by law,
and shall keep the Site, the Works and the Facilities in an orderly state as
appropriate in accordance with Good Industry Practice to avoid danger to
such persons.
16.1.3
With effect from the Expiry Date, the Private Party’s unencumbered
interest in the Site in accordance with this Agreement shall automatically
be assigned to the CoT, without the need for any further formality to give
effect to such assignment. The Private Party shall not be entitled to any
compensation in respect of such assignment. Notwithstanding the
aforesaid, the Private Party shall, on demand of the CoT, duly execute all
documents which may be required by the CoT in connection with such
assignment.
Compliance with Title Deeds and Land Use Rights
16.2.1
The Private Party shall procure that:
(a)
all Project Deliverables carried out at the Project Site by or on
behalf of the Private Party whether before, during or after the
completion of the Works shall be carried out in a manner that
does not breach any conditions of the Title Deeds of the Project
Site and the land use rights applicable to the Site; and
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(b)
16.3
there shall be no conduct by it or a Subcontractor, which gives
rise to a right for any person to obtain title to the Site or any part
of it save in accordance with the terms of this Agreement.
Access and Temporary Sites
16.3.1
If at any time the Private Party requires any rights over and above those
granted in terms of Clause 16.1.1 above and in particular, requires:
(a)
access to or any interest in any land which does not form part of
the Site; or
(b)
access to or any interest in any land or property which is
required for temporary use by the Private Party during the
delivery of the Project Deliverables and not forming part of the
Site; or
(c)
any additional rights beyond those which the Private Party has in
relation to any part of the Site,
the Private Party shall, save as otherwise specifically provided in this
Agreement, be entirely responsible for the process and cost of securing or
acquiring such access or interest.
16.3.2
16.4
Land Use Terms
16.4.1
16.4.2
16.5
If the Private Party intends to acquire any such rights or interests then it
shall provide the CoT with not less than twenty (20) Business Days notice
of the same and, if the CoT so notifies the Private Party within twenty (20)
Business Days of the date of such notice, shall acquire such rights or
interest in the name of the CoT and/or on such other reasonable terms as
the CoT may direct with the intent that, if this Agreement is terminated,
then such rights or interests will benefit the CoT and/or its nominee
provided that the CoT shall bear the prescribed costs incurred in
accordance with the applicable prescribed tariff should the CoT elect to
have such rights or interests registered in its name.
The Site is made available to the Private Party for the delivery of the
Project Deliverables upon the Site, which shall include:(a)
the design, construction and commissioning of the Works;
(b)
the operation and maintenance of the Facilities and other
facilities that are part of or incidental to the Project;
(c)
the provision of the Services;
(d)
the demolishment and/or reconstruction of buildings on the Site
for purposes of the Project, except to the extent that there may
be restrictions imposed by applicable Laws;
(e)
such other use as envisaged and/or permitted in terms of this
Agreement and/or the applicable legislation, town planning
scheme and Local Municipal regulations and/or by-laws.
The Private Party shall not use the Site for any other purpose whatsoever
without the prior written consent of the CoT.
Private Party’s obligations and restrictions.
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16.5.1
The Private Party shall(a)
not(i)
cede or assign or mortgage or pledge any of its rights
in respect of the Site; nor
(ii)
lease the Site or any part thereof; nor
(iii)
place anyone else in occupation of the Site or any part
thereof, on any conditions whatsoever or for any
reason whatsoever,
other than in terms of this Agreement:
(b)
not and will procure that the Subcontractors and sub-contractors
to the Subcontractors will not contravene any law, by-law or
statutory regulation or the conditions of any permit or consents
relating to or affecting the occupation of or the design,
construction, or operation of the Facilities on the Site or any
property on the Site or which may expose the CoT to any claim,
action or prosecution;
(c)
not contravene any of the conditions of title under which the CoT
holds title to, nor any laws which the CoT is required to observe
by reason of its title over the Site and the CoT shall not register
(and shall procure that there shall not be registered) any new or
amended conditions against the title deeds of the Site without
the prior written consent of the Private Party not to be
unreasonably withheld;
(d)
maintain the improvements over the Site in accordance with,
and to the standard specified in this Agreement;
(e)
directly or through its Subcontracts enter into such agreements
as shall be reasonably required by the local municipal
authority/ies for the delivery of municipal services including
water, electricity, refuse removal and taxes;
(f)
at all times occupy the Site and all improvements thereon for
purposes of implementing the Project and keep it in a clean, tidy
and sanitary condition;
(g)
be responsible for the cost of removal of any blockage of any
sewerage or water pipes or drains, arising from or as a result of
the provision of or failure to provide Project Deliverables;
(h)
not do or cause to be done anything on the Site which will
contravene the provisions of this Agreement in relation to the
provision of the Project Deliverables;
(i)
have no claim of any nature whatsoever against the CoT (save
as provided in this Agreement) whether for damages or
otherwise nor shall the Private Party be entitled to retain the
possession of the Site or delay the restoration of the possession
of the Site to the CoT, arising from the termination of this
Agreement, due to expiry or early termination, which shall be
subject to the continuing obligations of the Private Party in this
Agreement;
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16.6
(k)
shall:
(i)
during the Construction Period take all steps as may
be necessary to keep the Site from the date of taking
possession thereof, secure from intruders or squatters;
and
(ii)
during the Service Period provide the Physical Security
Services, as defined in Schedule 6 Part 1 (B)
[Specifications: CoT’s Requirements.].
The CoT shall –
(a)
procure that the land use rights in respect of the Site are
adequate for the use of the Site by the Private Party for the
purposes of the Project Deliverables; and
(b)
procure that the Private Party continues to have the sole and
exclusive right to use and occupation of the Site for the duration
of this Agreement for purposes of the Project Deliverables 2.
Early Termination and Expiry of the Agreement
16.7.1
2
procure that all improvements and/or activities on/or relating to
the Site in the form of, inter alia, design, constructions or
otherwise which are effected by the Private Party on/or relating
to the Site comply with the applicable laws and are not in breach
of any of the provisions of the title deed and this Agreement; and
CoT’s Rights and Obligations
16.6.1
16.7
(j)
If this Agreement is terminated for any reason prior to the Expiry Date, the
land use terms in this Clause 16 [Nature of Land Interests] shall
automatically cease and be terminated with effect from the date of
termination of this Agreement and the Private Party shall forthwith:(a)
take all steps as may be proper and reasonable to cancel or
assist in the cancellation of all entries endorsements and
registrations against the title deed (if any) in relation to this
Agreement; and
(b)
in accordance with this Agreement sign such documents as shall
be necessary to cede, delegate and assign the Private Party’s
rights, duties and obligations to the Site to a person designated
by the CoT to assume the Private Party’s rights, duties and
obligations.
16.7.2
If on the Expiry Date there is no renewal and/or extension of the period of
this Agreement, the land use terms as contemplated in this Clause 16
[Nature of Land Interests] shall automatically cease and be terminated with
immediate effect from the Expiry Date.
16.7.3
It is recorded that nothing contained in this Clause 16 [Nature of Land
Interests] shall be deemed, construed, or interpreted to alter or affect the
provisions of this Agreement with regard to the handback of the Facilities
to the CoT.
09/01/2014 – CoT: Wording agreed at the meeting of 21/10/13/
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17 CONDITIONS OF THE SITE
17.1
Subject to Clause 17.3 below and the remaining terms of this Agreement, the
condition of the Site, including without limitation, the climatic, hydrological,
hydrogeological,
ecological,
environmental,
geotechnical,
geological,
palaeontological and archaeological conditions of the Site (the “Site Conditions”)
shall be the sole responsibility of the Private Party. Accordingly, without limiting any
other obligations of the Private Party that are included in the Project Deliverables,
the Private Party shall be deemed as at the Signature Date to have:
17.1.1
carried out an investigation of, inspected and examined all Project Site
Conditions and the surroundings of the Site and of any extraneous
materials, existing structures or works, in, on or under the Site (including
its surface, sub-soil and ground water) to enable the Facilities to be
designed and constructed and the Works to be carried out with due regard
for the Project Conditions and the seismic activity (if any) in the region of
the Site;
17.1.2
satisfied itself as to:(a)
the nature of the Site Conditions, the surface, sub-soil and
ground water conditions of the Site;
(b)
the form and nature of the Site, the load-bearing and other
relevant properties of the Site;
(c)
the risk of injury or damage to property affecting the Site;
(d)
the nature of the materials (whether natural or otherwise) to be
excavated;
(e)
the nature of the design, work and materials necessary for the
execution of the Works;
(f)
the adequacy of the rights of passage over, access to and
through the Site;
(g)
any accommodation it may require for the purposes of fulfilling
its obligations under this Agreement (such as additional land or
buildings outside the Site);
(h)
subject to Clause 28 [Information and Communication
Technology], the possibility of interference by persons of any
description whatsoever (other than the CoT), with rights-of-way
across, access to or use of, or rights in respect of, the Site as
recorded in the Title Deeds, with particular regard to the owners
and users of any land adjacent to the Site; and
(i)
the precautions, times and methods of working necessary to
prevent or minimise any nuisance or interference, whether public
or private, being caused to any third parties.
17.2
The Private Party shall attend to demolition of any structures, buildings on the Site,
which are required to be demolished or removed for purposes of performing the
Project Deliverables.
17.3
To avoid doubt the Private Party, subject to Clause 17.4, accepts full responsibility
for all matters referred to in Clause 17.1 and 17.2 and the Private Party shall
subject to Clause 10.2.2, not be entitled to make any claim against the CoT whether
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in contract, delict or otherwise on any grounds relating to matters in Clause 17.1,
including (without limitation) the fact that incorrect or insufficient information on any
matter relating to the Site was given to it by any person, whether or not a CoT Party
(save for any material information which was knowingly withheld by the CoT prior to
the Signature Date and of which the Private Party or its representatives (including
the Lenders) could not reasonably have been aware);
17.4
Ground Conditions and Contamination
17.4.1
In respect of the Site, but subject to Clause 17.4.2 below, the Private
Party, without prejudice to Clause 23 below accepts entire responsibility
for assessing and dealing with the form and nature of the Site, the ground
and the subsoil, the nature of the materials to be excavated and the nature
of the design, work and materials necessary for the execution of the
Works.
17.4.2
In the case of Unknown Pre-Existing Contamination or any Contamination
introduced onto the Site after the Effective Date by a third party (“Third
Party Contamination”), on the Site, the Private Party shall:
17.4.3
(a)
in the course of carrying out the Works conduct such tests as
are reasonably necessary to assess the presence of any
Unknown Pre-Existing Contamination or Third Party
Contamination that may have an impact on the Private Party’s
obligations to carry out the Works or deliver the Services at the
Facilities;
(b)
upon discovery of the Unknown Pre-Existing Contamination or
Third Party Contamination, the Private Party shall deal with the
Unknown
Pre-Existing
Contamination,
Third
Party
Contamination in accordance with its obligation under Clause
17.4.3 below.
The Private Party shall, to the extent necessary:(a)
amend its designs, methods of construction of the Works and
planned operation of the Facilities, to manage and mitigate the
impact Unknown Pre-Existing Contamination (upon its
discovery) may have on the construction of the Works or to other
persons or properties which may be affected by such
contaminated material;
(b)
take measures to prevent the cause of any further contamination
to the Site (to the extent that it was not contaminated) or other
persons or properties which may be affected by such
contaminated material;
(c)
comply with the legal obligations of the Private Party in relation
to its activities on the Site, as a result of the existence of
Unknown Pre-Existing Contamination (upon its discovery), which
shall include without limitation the treatment, and/or removal
and/or disposal, of such contaminated material;
(d)
manage the impact Unknown Pre-Existing Contamination (upon
its discovery) or Third Party Contamination may have on the
Facilities upon completion of the Works, including the period
after the Service Commencement Date, which shall include,
without limitation, measures to prevent ingress of further
contaminated material onto the Site, management of removal
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and/or disposal of the contaminated material, mitigation of the
impact of contaminated material on the structures erected as
part of the Facilities and implementing such remedial action as
shall be required to deal with the impact of the contaminated
material on the structures forming part of the Facilities.
17.4.4
The Private Party shall identify and obtain such Consents as shall be
required for purposes of dealing with Known Pre-Existing Contamination,
Unknown Pre-Existing Contamination and Third Party Contamination, for
the purposes of carrying out its obligations in terms of this Agreement. For
the avoidance of doubt any delays in obtaining such Consents, to the
extent that such a delay does not arise (directly or indirectly) as a result of
any wilful act or default of the Private Party or any Private Party Party,
shall constitute a Relief Event in accordance with Clause 40.1.7 below.
17.4.5
Upon discovery of Unknown Pre-Existing Contamination or Third Party
Contamination:(a)
the Parties shall confer as to the action proposed to be taken by
the Private Party in order to comply with its obligations in terms
of this Clause 17.4;
(b)
the Private Party shall prepare and present a report to the CoT
on the measures it considers appropriate for it to take in order to
comply with its obligations in terms of this Clause17.4. The
Private Party shall prepare a detailed costs analysis of the
impact its compliance with Clause 17.4 will have on the cost of
the Works and/or provision of the Services, which costs analysis
shall, to the extent that the Private Party has complied with the
requirements of dealing with Unknown Pre-Existing
Contamination or Third Party Contamination, include the
standing costs arising from delays in procuring Consent in
respect of dealing with the Unknown Pre-Existing Contamination
or Third Party Contamination and shall constitute the Private
Party’s proposed fixed costs for dealing with the discovered
Unknown Pre- Existing Contamination;
(c)
the CoT and the Private Party shall negotiate and agree the
proposed costs for dealing with Unknown Pre-Existing
Contamination or Third Party Contamination and, failing such
agreement, the determination of the costs shall be referred to
Fast Track Dispute Resolution Procedure;
(d)
in respect of costs, the following shall apply:
(i)
upon agreement or determination in terms of the Fast
track Dispute Resolution Procedure of the costs of
dealing with Unknown Pre- Existing Contamination or
upon their determination through the Fast Track
Dispute Resolution Procedure, the CoT shall be liable
therefor; and
(ii)
in respect of the cost of dealing with Third Party
Contamination, such costs shall be shared equally
between the Parties upon their agreement or
determination.
Provided that, should the Private Party and the CoT agree or it is
determined by the Fast Track Dispute Resolution Procedure that any
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Unknown Pre-Existing Contamination or Third Party Contamination
cannot be dealt with in the manner contemplated in this Clause 17.4.5 and
that the existence of such Unknown Pre-Existing Contamination or Third
Party Contamination will render it impossible for the Private Party to
materially carry out its obligations in terms of this Agreement for the
construction and/or completion of the Works and/or the provision of the
Services, then the CoT shall be deemed to have issued a CoT Variation
Notice in terms of the provisions of Schedule 15 (Variation Procedure).
The Parties shall seek to agree terms for the implementation of any such
Deemed CoT Variation as soon as reasonably practicable and the
provisions of Schedule 15 [Variation Procedure] shall apply thereto save
that the CoT shall not be entitled to withdraw any CoT’s Variation Notice
deemed to have been given pursuant to this Clause 17.4 nor fail to deliver
a Variation Confirmation and the provisions of paragraphs 4.5 and 4.6 of
Schedule 15 [Variation Procedure] shall not apply and the Variation
Confirmation shall be deemed to have been issued five (5) Business Days
after the terms for implementation of the deemed CoT Variation have
been agreed or determined pursuant to Schedule 21 [Dispute Resolution
Procedure] and, in the case of Third Party Contamination then such
Variation shall not give rise to any additional CoT cost.
18 CONSENTS AND PLANNING
18.1
Subject to clause 17.4.4 above, the Private Party shall be responsible for:
18.1.1
obtaining all Consents which may be required in connection with the
performance of the Project Deliverables;
18.1.2
maintaining in full force and effect all Consents; and
18.1.3
implementing each Consent in accordance with their respective terms
within the period of its validity in accordance with its terms.
18.2
Subject to clause 17.4.4, the CoT shall provide all such assistance, in accordance
with clause 6 [Assistance and Co-operation], to the Private Party as may be
reasonably necessary for the Private Party to obtain all the Consents referred to in
Clause 18.1.
18.3
The obligation of the Private Party under Clause 18.1.1 above shall not include
Consents and/or approvals relating to the zoning and land use rights required for
the purposes of the Project in respect of the Site, which CoT shall be obliged to
obtain.
19 HERITAGE RESOURCES
19.1
Discovery
19.1.1
Upon the discovery of any heritage object or resource (as defined in the
National Heritage Resources Act, 1999 or any corresponding provincial
legislation) at the Site during the course of the Works, the Private Party
shall:
(a)
promptly notify the CoT's Representative of such discovery;
(b)
take all steps not to disturb the object or resource, including, if
necessary, cease any Works in so far as the carrying out of such
Works might result in the contravention of or impede the
compliance with Laws relevant to the heritage object or
resource; and
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(c)
19.2
take all necessary steps to preserve the heritage object or
resource in the same position and condition in which it was
discovered.
Action
19.2.1
The CoT shall be entitled to procure that the CoT's Representative
promptly, and in any event within five (5) Business Days of the notice
referred to in Clause 19.1.1(a), issue an instruction to the Private Party
specifying what action the CoT requires the Private Party to take in relation
to such discovery, provided that such instruction complies with applicable
laws.
19.2.2
The Private Party shall promptly and diligently comply with any instruction
issued by the CoT’s Representative referred to in Clause 19.2.1 (except
and to the extent that such instruction constitutes a proposal by the CoT
for a deemed CoT Works Variation as provided in Clause 19.2.4 below in
which case the provisions of Schedule 15 [Variation Procedure] shall
apply, at its own cost.
19.2.3
If so directed by the CoT or Responsible Authority, the Private Party shall
allow representatives of the CoT or Responsible Authority to enter onto the
Site for the purposes of removal or disposal of such discovery; provided
that such entry shall be subject to the CoT or Responsible Authority
complying with all relevant safety procedures which shall include any
relevant health and safety plans for the construction of the Facilities and
any reasonable directions regarding the safety of the Site that may be
issued by or on behalf of the Private Party.
19.2.4
If the discovery is a Relief Event and any instruction from the CoT referred
to in Clause 19.2.1 above in connection with the discovery includes a
requirement for the Private Party to carry out works (being any work of
alteration, addition, demolition or extension or variation in the Facilities)
which are not Works that would be necessary for the purpose of
compliance with Law or any Consents or to perform the Project
Deliverables, such works shall be deemed to be a CoT Works Variation
and the provisions of Schedule 15 [Variation Procedure] shall apply as if
such instruction were a Variation Enquiry issued by the CoT in accordance
with the provisions of Part 1 of Schedule 15 [Variation Procedure].
19.2.5
If the discovery is not a Relief Event and any instruction from the CoT
referred to in Clause 19.2.1 above in connection with the discovery
includes the requirement for the Private Party to carry out works (being
any work of alteration, addition, demolition or extension or variation in the
Facilities), then such works shall be deemed to be a Private Party
Variation and the provisions of Part 2 of Schedule 15 [Variation Procedure]
shall apply.
20 UTILITIES
20.1
Utilities Supplies
20.1.1
The Private Party shall, at its cost, be responsible for the procurement of
such temporary bulk services as are necessary for carrying out the Works,
and for the usage costs of such bulk services for purposes of completion of
the Works.
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20.2
20.1.2
All permanent bulk services required at the Site for purposes of conducting
the Private Party’s Pre-Completion and Post Completion Commissionings
shall be procured by the Private Party.
20.1.3
For the avoidance of doubt, all bulk services required from the Service
Commencement Date are to be procured by the Private Party on behalf of
CoT as Pass Through Costs.
Relocation of Third Party Utilities
20.2.1
PART D:
The Private Party shall be responsible for the relocation or protection, and
undertake or procure the work necessary to achieve the relocation or
protection of Third Party Utilities located at the Site, as will be necessary in
order to render the Project Deliverables in accordance with Good Industry
Practice and the requirements of the owner of the Third Party Utilities
DESIGN AND CONSTRUCTION
21 THE DESIGN AND CONSTRUCTION PROCESS
21.1
Overall Responsibility
21.1.1
The Private Party shall carry out the Works:
(a)
so as to procure satisfaction of the CoT’s Requirements;
(b)
in accordance with the Private Party's Proposals; and
(c)
in accordance with the terms of this Agreement.
To avoid doubt, the obligations in paragraphs (a) to (c) above are
independent obligations. In particular:
(d)
the fact that the Private Party has complied with the Private
Party's Proposals shall not be a defence to an allegation that the
Private Party has not satisfied the CoT’s Requirements; and
(e)
the fact that the Private Party has satisfied the CoT’s
Requirements shall not be a defence to an allegation that the
Private Party has failed to comply with the Private Party's
Proposals.
Notwithstanding anything to the contrary contained in the Private Party’s
Proposal, nothing contained in the Private Party’s Proposal shall impose
any obligations on the CoT unless it is specifically provided for in this
Agreement
21.2
Design and Construction Responsibility
The Private Party warrants that it has used, and will continue to use, the degree of
skill and care in the design and/or construction of the Facilities that would
reasonably be expected of a competent professional designer and/or contractor
experienced in carrying out design and/or construction activities of a similar nature,
scope and complexity to those required for the carrying out of the Works.
21.3
CoT Design Approval
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21.4
21.3.1
Notwithstanding anything contained in this Clause, it is expressly agreed
between the parties that in accepting the Private Party's Proposals, the
CoT does not confirm that the Private Party's Proposals will meet the
CoT’s Requirements and the Private Party assumes and carries all such
risk.
21.3.2
The Private Party shall develop and finalise the design and specification of
the Facilities and the CoT shall review the Reviewable Design Data in
accordance with Schedule 8 [Review Procedure] and the provisions of this
sub-clause;
21.3.3
The Private Party shall submit the Reviewable Design Data (RDD) and the
design of any Variations developed in accordance with the procedure set
out in Schedule 15 [Variation Procedure] to the CoT's Representative for
review under Schedule 8 [Review Procedure]. The Private Party shall not
commence or permit the commencement of construction of the part or
parts of the Facilities to which such Reviewable Design Data relates until it
has submitted the appropriate Reviewable Design Data and is entitled to
proceed with construction in accordance with Schedule 8 [Review
Procedure];
21.3.4
The Private Party shall allow the CoT's Representative, at any time, a
reasonable opportunity to view any items of Design Data, which shall be
made available to the CoT's Representative as soon as practicable
following receipt of any written request from the CoT's Representative; and
21.3.5
The Private Party shall procure that the Construction Subcontractor
establishes and maintains a computerised design database which the
Private Party and the CoT's Representative may access to view drawings
comprised within the Design Data (including Reviewable Design Data) and
store and/or print copies of such Design Data. In the event of the CoT's
Representative being unable to access such design database, the Private
Party shall procure that it is made available for inspection by the CoT's
Representative, or any other person authorised by the CoT's
Representative.
Rectification of the Private Party's Proposals
21.4.1
Without prejudice to Clause 21.1.1, if it should be found that the Private
Party’s Proposals do not fulfil the CoT’s Requirements and/or any
obligations of the Private Party in terms of this Agreement (excluding the
Private Party itself), the Private Party shall at its own expense amend the
Private Party’s Proposals and rectify the Works or any part affected. Such
amendments and rectification shall have the effect that:
(a)
the Private Party’s Proposals shall satisfy the CoT’s
Requirements and/or any obligations of the Private Party in
terms of this Agreement (excluding the Private Party itself) as
the case may be; and
(b)
following the amendment or rectification, the structural,
mechanical and electrical performance of the Facilities will be of
an equivalent standard of performance to that set out in the
Private Party’s Proposals prior to their amendments or
rectification (for the purpose of this comparison disregarding the
fault which required the amendment or rectification to be made);
and
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(c)
the requirements of the Schedule 6, Part 1 [Specifications:
CoT’s Requirements] will still be met.
22 RIGHT OF ACCESS OF COT'S REPRESENTATIVE
22.1
Access to Site
22.1.1
The Private Party shall procure that:
(a)
22.2
subject to complying with all relevant safety procedures, which
shall include any relevant health and safety plans for the
construction of the Facilities, the Private Party's Site Rules from
time to time and any reasonable directions with regard to site
safety that may be issued by or on behalf of the Private Party's
Site Manager from time to time, the CoT's Representative or a
person nominated by the CoT's Representative from time to time
shall have unrestricted access at all reasonable times to:
(i)
view the carrying out of the Works at the Site; and
(ii)
subject to obtaining the consent of the relevant
manufacturer or supplier (which the Private Party
agrees to use all reasonable endeavours to obtain),
visit any site or workshop where materials, plant or
equipment are being manufactured, prepared or stored
for use in the Works for the purposes of general
inspection and of attending any test or investigation
being carried out in respect of the Works;
(b)
the CoT's Representative shall have such rights of access to the
Site in an emergency as he/she (acting reasonably) considers
suitable in the circumstances; and
(c)
periodic progress meetings and site meetings of a frequency to
be agreed between the CoT and the Private Party are held and
that the CoT's Representative or a person nominated by the
CoT's Representative from time to time shall have the right to
attend such periodic progress meetings and site meetings and to
attend such other meetings as the CoT's Representative may
reasonably request.
Increased Monitoring
If, following any viewing, visit or inspection made pursuant to Clause
22.1.1(a)[Access to Site] the CoT's Representative reasonably believes, or if
following the exercise by the CoT's Representative of his rights pursuant to Clause
22.3 [Right to Open Up], it is discovered that there are Defects in the Works or any
part of them or that the Private Party has failed to comply with the CoT’s
Requirements, or any of the obligations of the Private Party in terms of this
Agreement (excluding the Private Party itself) or the Private Party's Proposals, the
CoT may (without prejudice to any other right or remedy available to it) by notice to
the Private Party increase the level of its monitoring of the Private Party until such
time as the Private Party shall have demonstrated to the satisfaction of the CoT that
it is capable of performing and will perform all its obligations under this Agreement.
The Private Party shall compensate the CoT for any reasonable additional costs
incurred by the CoT as a result of such increased monitoring.
22.3
Right to Open Up
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In respect of the work which the CoT’s Representative is entitled to examine, inspect
measure and/or test, the Private Party shall give notice to the CoT whenever any
such work is ready and before it is covered up, put out of sight, or packaged for
storage or transport. The CoT shall then either carry out the examination,
measurement or testing within 3 (three) Business Days or within such time give
notice to the Private Party that the CoT does not require to do so. If the CoT fails to
give the notice, the Private Party shall, if and when required by the CoT, uncover the
work and thereafter reinstate and make good, all at the CoT’s cost.
22.4
Limited Effect of CoT’s Monitoring and Inspection
Notwithstanding any other provision of this Agreement the CoT shall not, and shall
not be deemed by its actions, inactions or otherwise at any time to, confirm or agree
that the design, construction or operation of the Facilities or any part thereof
complies with the CoT’s Requirements, the Private Party’s Proposal and/or this
Agreement and such compliance shall at all times be the sole responsibility of the
Private Party.
22.5
Safety during Construction
The provisions of Part 1 of Schedule 6 [Output Specfifications - CoT Requirements]
shall apply to matters of safety.
23 PROGRAMME AND DATES FOR COMPLETION
23.1
23.2
Dates for Completion
23.1.1
The Private Party shall complete the Works by the Target Completion
Date. Notwithstanding the aforegoing, failure by the Private Party to
complete the Works by Target Completion Date shall not constitute or
result in a Private Party Event of Default in terms of Clause 42 [Private
Party Events of Default].
23.1.2
Without prejudice to Clauses 25.5.3 [Relocation Expenses], 42 [Private
Party Events of Default], 44 [Non-Default Termination], 45 [Effect of
Termination] and 46 [Compensation on Termination], the CoT shall not be
entitled to claim any damages in respect of any period of delay which
elapses between the Target Completion Date and the date on which
Practical Completion Date actually occurs.
23.1.3
The Private Party shall rectify any Snagging Matters in accordance with
Clause 26.1.
The Programme
23.2.1
Any Programme submitted in accordance with the provisions set out below
shall be prepared in accordance with Good Industry Practice and shall be
in sufficient detail so as to enable the CoT's Representative to monitor the
progress including all commissioning activities and likely future progress of
the Works.
23.2.2
Within five (5) Business Days of the Signature Date, the Private Party shall
submit to the CoT’s Representative the revised Programme which shall be
prepared in a similar format to, and containing the level of detail equivalent
to the initial Programme as set out at Schedule 7 [The Programme]. Any
change to the Programme shall only be made in accordance with this
Clause and Schedule 8 [Review Procedure]. The Private Party shall
promptly submit to the CoT's Representative a copy of any version of the
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Programme varied in accordance with this Clause and Schedule 8 [Review
Procedure].
23.3
Report on Delay
23.3.1
The Private Party shall notify the CoT of any circumstances, which have
arisen, which might lead to a delay to progress and/or completion of the
Works as a whole by the Target Completion Date:
23.3.2
If it appears to the CoT's Representative at any time that the actual
progress of the Works as a whole have significantly fallen behind the
Programme, then the CoT's Representative shall be entitled to require the
Private Party to submit to the CoT's Representative a report identifying the
reasons for the delay and, unless the event causing the delay is still
subsisting and it is not possible to predict with any certainty when the
delay might come to an end, require the Private Party (at the CoT's
option):
23.3.3
(a)
to produce and submit to the CoT's Representative a revised
Programme showing the manner and the periods in which the
Works will be carried out to ensure Practical Completion by the
Target Completion Date and to ensure the completion of the
Facilities by the Target Completion Date; and/or
(b)
to produce and submit to the CoT's Representative a revised
Programme showing the steps which are to be taken to
eliminate or reduce the delay and the effect of any such delay on
the achievement of the Target Completion Date and/or the
Target Completion Date.
In the circumstances outlined in Clause 23.3.2(b) above, or, if it appears to
the CoT’s Representative at any time that the actual progress has
significantly fallen behind the part of the Programme (irrespective of
whether or not the actual progress of the Works as a whole is significantly
behind the Programme pursuant to Clause 23.3.2 above), then the CoT’s
Representative shall be entitled to require the Private Party to submit to
the CoT’s Representative a report identifying the reasons for the delay
and, unless the event causing the delay is still subsisting and it is not
possible to predict with any certainty when the delay, might come to an
end, require the Private Party (at the CoT’s option) to produce and submit
to the CoT’s Representative for review in accordance with Schedule 8
[Review Procedure] an updated version of the Programme showing:
(a)
the manner and the periods in which the Works in relation to the
Facilities will be carried out having regard to the actual progress
of the Works; and/or
(b)
the steps which are to be taken to eliminate or reduce or recover
the delay and the effect of any such delay on the achievement of
the Practical Completion Date for the Facilities.
For the avoidance of any doubt and subject to Clauses 23.1.1 above, 37
[Unforeseeable Conduct], 39 [Compensation Events] 40 [Relief Events]
and 41 [Force Majeure], any changes made to the Programme shall not
result in any change to the Target Completion Date and/or a change to
the obligations of the Private Party to have completed the Works by the
Target Completion Date.
23.4
Notification of early completion
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23.4.1
The Private Party shall notify the CoT's Representative if at any time the
actual progress of the Works is significantly ahead of the Programme or if
progress on the Facilities is significantly ahead of the relevant part of the
Programme so that the Private Party anticipates that the Service
Commencement Date will be earlier than the Scheduled Service
Commencement Date. The CoT's Representative shall be entitled to
require the Private Party to produce and submit to the CoT's
Representative, a revised Programme showing the manner and the
periods in which the Works will be carried out and what the revised date
for completion would be to enable the parties to consider (at their absolute
discretion):
(a)
whether to agree an earlier Scheduled Service Commencement
Date; and
(b)
what modifications (if any) will be required to the Agreement in
order to accommodate such earlier date for completion.
24 INDEPENDENT CERTIFIER
24.1
Appointment
The parties have, on the Signature Date appointed a suitably qualified and
experienced consultant who is familiar with and understands South African
Standards to act as the Independent Certifier for the purposes of this Agreement
upon the terms of the Independent Certifier Agreement as set out in Schedule 12
[Form of Independent Certifier Agreement] of this Agreement.
24.2
Changes to terms of appointment
24.2.1
24.2.2
24.3
Neither party shall without the other party’s prior written approval (approval
which shall not be unreasonably withheld or delayed):
(a)
terminate, repudiate or discharge the Independent Certifier
Agreement or treat the same as having been terminated,
repudiated or otherwise discharged;
(b)
waive, settle, compromise or otherwise prejudice any rights or
claims which the other may from time to time have against the
Independent Certifier; or
(c)
vary the terms of the Independent Certifier Agreement or the
service performed or to be performed by the Independent
Certifier.
The parties shall comply with and fulfil their respective duties and
obligations arising under or in connection with the Independent Certifier
Agreement.
Co-operation
The parties agree to co-operate with each other generally in relation to all matters
within the scope of or in connection with the Independent Certifier Agreement. All
instructions and representations issued or made by either of the parties to the
Independent Certifier shall be simultaneously copied to the other and both parties
shall be entitled to attend all inspections undertaken by or meetings involving the
Independent Certifier.
24.4
Replacement
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24.4.1
In the event of the Independent Certifier's appointment being terminated
otherwise than for full performance, the parties shall liaise and co-operate
with each other in order to appoint, in accordance with this Clause 24.4.1,
a replacement consultant to act as the Independent Certifier as soon as
reasonably practicable. The identity of any such replacement shall be as
agreed by the parties and the terms of his appointment shall, unless
otherwise agreed, be as set out in the Independent Certifier Agreement.
24.4.2
In the event the parties fail to agree the identity and/or terms of a
replacement Independent Certifier in accordance with Clause 24.4.1,
within three (3) Business Days of the original Independent Certifier's
appointment being terminated, then such disagreement shall be referred
for resolution in accordance with the Fast Track Dispute Resolution
Procedure.
25 PRE-COMPLETION COMMISSIONING, COMPLETION AND RELOCATION
25.1
Final Commissioning Programme
25.1.1
Not less than 120 (one hundred and twenty) Business Days before the
Target Completion Date specified in the Programme, the Private Party
shall provide the CoT with a draft Final Commissioning Programme in
respect of the Works in accordance with the provisions of Clauses 25.1.2
and 25.1.3 for the CoT’s consent, which shall not be unreasonably
withheld. The CoT shall provide the Private Party with comments on that
draft Final Commissioning Programme submitted to it no later than 100
(one hundred) Business Days before the Target Completion Date. The
CoT’s consent shall be deemed to be granted where:(a)
Final Commissioning Programme complies fully with Clauses
25.1.2 and 25.1.3; and
(b)
CoT has not provided comments on the draft Final
Commissioning Programme within the time for its comments in
terms of this Clause 25.1.1,
Provided that if the CoT does not provide its consent to the draft Final
Commissioning Programme 80 (eighty) Business Days before the Target
Completion Date or where such consent is not deemed to be granted in
terms of this Clause 25.1.1 either party may refer the draft Final
Commissioning Programme for determination in accordance with Fast
Track Dispute Resolution Procedure. Upon CoT’s consent being granted
or deemed to be granted with regard to the draft Final Commissioning
Programme or upon the draft Final Commissioning Programme being
determined by Fast Track Dispute Resolution Procedure, then such draft
Final Commissioning Programme shall become the Final Commissioning
Programme. For the purposes of this clause, the CoT may only request
changes to the draft Final Commissioning Programme to the extent
required to ensure that it complies with this Agreement.
25.1.2
The draft Final Commissioning Programme shall be in accordance with,
and incorporate the level of detail set out in the Outline Commissioning
Programme relating to the Works and shall impose no greater or more
onerous obligations on the CoT than those set out in that Outline
Commissioning Programme (unless otherwise agreed by the CoT in its
absolute discretion). The agreed or determined Final Commissioning
Programme shall then replace the Outline Commissioning Programme.
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25.1.3
The Final Commissioning Programme shall describe the steps necessary
to complete the Private Party’s Pre-Completion Commissioning and the
Private Party’s Post-Completion Commissioning and the timing and
sequence of each of such steps to ensure:
(a)
that the CoT and Independent Certifier are not granted any
lessor time and opportunity:(i)
to be notified of commissioning tests planned to be
carried out by the Private Party in respect of the Works
in getting the Facilities ready for the Private Party’s Pre
Completion Commissioning; and
(ii)
to carry out any of the CoT’s testing as it is provided
for in the Outline Commissioning Programme CoT’s
Testing.
(b)
that the Private Party's Pre-Completion Commissioning will not
delay completion of the Facilities from occurring by the Target
Completion Date;
(c)
that the Private Party's Post Completion Commissioning is
completed by the appropriate Commissioning End Date; and
(d)
that the Relocation is completed in accordance with the
Relocation Plan.
25.1.4
The Private Party shall procure that the steps that it is responsible for
carrying out and completing pursuant to the Relocation Plan include
providing the information required for the Relocation of the appropriate part
of the CoT from the Existing Facilities to the Facilities.
25.1.5
The CoT agrees that if Practical Completion Date occurs on a date earlier
than the scheduled Target Completion Date, the Private Party may, at its
request, commence the Relocation of the appropriate part of the CoT from
the Existing Facilities to the Facilities. In such a circumstance, the Private
Party shall adjust as necessary, in consultation with the CoT, the
programme for Relocation contained in the Relocation Plan, referred to in
sub-Clause 25.1.3(d) above.
25.1.6
The Private Party shall:
(a)
on a monthly basis, furnish the CoT and the Independent
Certifier with a schedule of tests to be carried out in respect of
the Facilities or sections thereof, including tests extracted from
the Final Commissioning Programme and adjusted to take into
account the progress of the Works (“Monthly Test Programme”).
The Private Party may make further adjustments to the Monthly
Test Programme on a weekly basis provided that it shall have
given the CoT and Independent Certifier at least one week prior
notice of any changes to the Monthly Test Programme;
(b)
give 48 hours written notice to the Independent Certifier and
CoT of the commencement of the Private Party’s PreCompletion Commissioning in relation to the Facilities; and
(c)
ensure that the Independent Certifier and the CoT’s
Representative are invited to witness all of, and are provided
with all information they may reasonably require in relation to the
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Private Party’s Pre-Completion Commissioning and that the
Independent Certifier is invited to comment on the Private
Party’s Pre-Completion Commissioning
25.1.7
25.2
Pre-Completion Commissioning and Inspections
25.2.1
25.3
The parties each undertake to co-operate with the Independent Certifier to
ensure that the Independent Certifier is familiar with all necessary aspects
of the Project for the purposes of its role as described in this Clause.
The Private Party shall:
(a)
undertake the Private Party’s Pre-Completion Commissioning on
the Facilities in accordance with the Final Commissioning
Programme
(b)
permit the CoT to undertake the CoT’s Testing on such dates as
provided for in the Final Commissioning Programme or as may
have become adjusted as a result of the Monthly Test
Programme or further adjustments to the Monthly Test
Programme in terms of Clause 25.1.6(a) and in accordance with
the Final Commissioning Programme
Practical Completion and Relocation Procedure
25.3.1
Not less than 3 months prior to the Target Completion Date the Private
Party shall give written notice to the CoT and the Independent Certifier
advising whether the Works are progressing as scheduled.
25.3.2
The Private Party shall give the Independent Certifier and the CoT's
Representative not less than [35] days' notice and not more than [40] days'
notice, prior to the Target Completion Date, as to whether the Private Party
considers that the Works will be complete and the tests on completion to
be performed in accordance with the Final Commissioning Programme will
be so carried out and whether the CoT may commence preparations for
the Relocation. The CoT's Representative and the Independent Certifier
shall be entitled to:
(a)
inspect the Works on the date or dates reasonably specified by
the Private Party in the Final Commissioning Programme; and
(b)
attend all of the tests indicated in this Clause 25.
25.3.3
In the event that the Private Party notifies the CoT that the Works will not
be completed on the Target Completion Date, the Private Party shall
revise the Final Commissioning Programme based on the actual progress
of the Works, which shall be subject to the CoT’s consent in the same
manner as is provided for in respect of the draft Final Commissioning
Programme in Clause 25.1.
25.3.4
Within two (2) Business Days (or such other appropriate time period as
agreed between the parties) of the notice of the Private Party notifying the
CoT that the Facilities will be complete as contemplated by Clause 25.3.2
the CoT's Representative, the Independent Certifier and the Private
Party’s Representative (if so requested by the CoT and/or the Independent
Certifier) shall inspect (the “First Inspection”) the Facilities in order to
consider if it is likely to achieve Practical Completion by the Target
Completion Date. If they are so satisfied they shall notify the CoT and
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thereafter the CoT may commence any arrangements it considers
necessary in order to initiate the start of the Relocation process.
25.4
25.5
25.3.5
Not less than ten (10) Business Days prior to the Target Completion Date,
the CoT's Representative, the Independent Certifier and the Private Party's
Representative may re-inspect the Facilities to consider if Practical
Completion is likely to be achieved on the date scheduled and whether
other parts of the Works (including without limitation emergency lighting,
signage and evacuation passages) are likely to be in a safe condition for
proper use by the CoT.;
25.3.6
The CoT's Representative, the Independent Certifier and the Private
Party's Representative shall jointly inspect (the “Final Inspection”) the
Facilities three (3) Business Days prior to the date scheduled in the Final
Commissioning Programme (as such programme has been updated in
accordance with the provisions of Clause 25.3.3) for Practical Completion.
The Independent Certifier shall determine, in accordance with the terms of
the Independent Certifier Contract if the conditions for the issue of a
Certificate of Practical Completion have been met.
25.3.7
If following the Final Inspection in accordance with Clause 25.3.6 the
Facilities are not in a condition so as to achieve the issue of a Certificate of
Practical Completion by the Independent Certifier then he shall promptly
inform the Private Party in writing of any outstanding matters which are to
be attended to and the Private Party shall procure attendance to such
matters and shall give the Independent Certifier and CoT not less than five
(5) Business Days notice in writing of the date when the Facilities are likely
to be in a condition to achieve the issue of a Certificate of Practical
Completion in accordance with this Agreement on which date the Final
Inspection shall be repeated. This procedure shall be repeated as often as
may be necessary until all outstanding matters are attended to.
Completion Certificates
25.4.1
The parties shall procure that the Independent Certifier shall, when he is
satisfied that Practical Completion or Final Completion has occurred in
accordance with this Agreement, issue a Certificate of Practical
Completion or a Certificate of Final Completion respectively and to that
effect stating the date upon which the Practical Completion Date and Final
Completion Date occurred.
25.4.2
The issuance of the Certificate of Practical Completion or Certificate of
Final Completion shall, in the absence of manifest error, bad faith or fraud,
be conclusive evidence that Practical Completion Date or Final Completion
Date has respectively occurred.
25.4.3
The Independent Certifier shall issue Certificate of Practical Completion
notwithstanding that there are Snagging Matters. Where there are
Snagging Matters, the parties shall procure that the Independent Certifier
shall, within five (5) Business Days of the date of issue of the Certificate of
Practical Completion issue a Snagging Notice which shall specify the
Snagging Matters and an estimate of the cost of rectifying such Snagging
Matters (the “Snagging Notice”).
25.4.4
The issue of a Certificate of Practical Completion shall in no way affect the
obligations of the Private Party under this Agreement including in respect
of any Defects.
Relocation
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25.6
25.5.1
The Private Party shall be responsible for the staged transfer, migration
and movement of Relocation Assets from Existing Facilities to the new
Facilities (“the Relocation”). For the avoidance of doubt, the Relocation
shall not include the relocation of any persons, equipment or belongings
relating to the ICT Project.
25.5.2
The Private Party shall undertake the Relocation in accordance with
Schedule 27 [Relocation Principles]. The CoT shall comply fully and
timeously with all of its responsibilities and obligations set out in Schedule
27 [Relocation Principles] to enable the Private Party to complete
relocation in accordance with Schedule 27 [Relocation Principles].
25.5.3
If within thirty-five (35) days of the First Inspection of the Facilities, the
Certificate of Practical Completion is not issued and the CoT is required to
cancel or amend Relocation arrangements in relation to the Existing
Facilities then, to the extent the damages exceed the Unitary Payment the
Private Party shall pay to the CoT an amount of up to R 40 000,00 (forty
thousand Rand) per day commencing from the date initially scheduled for
the commencement of the Relocation until the date of issuance of
Certificate of Practical Completion.
25.5.4
Upon the issuance of a Certificate of Practical Completion and Relocation
of the Facilities subsequently being completed the Private Party shall be
entitled to issue an Availability Certificate certifying that the Services are
then available.
25.5.5
The Private Party shall perform the obligations in terms of Clause 25.5.1
so as to co-ordinate with the CoT's operations on the Site and/or in the
Facilities and/or in the Existing Facilities used by the CoT and shall take all
reasonable care to ensure that it does not unreasonably interfere with the
operations of the CoT or any CoT Party.
25.5.6
The move must be planned and managed such that it causes the least
possible disruption in the activities of CoT and the least inconvenience to
the CoT employees.
25.5.7
CoT shall co-operate with the Private Party in accordance with Clause 6 to
assist the Private Party to carry out the Relocation in accordance with this
Clause 25.5.
As-built specification
The Private Party shall provide to the CoT a copy of the as-built building
specification, together with all drawings as soon as such is available, but in any
event by no later than three (3) months after the Service Commencement Date.
26 FINAL COMPLETION COMMISSIONING
26.1
Commissioning
26.1.1
The Private Party shall undertake and complete the Private Party's
Post-Completion Commissioning in accordance with the Final
Commissioning Programme and shall in consultation with the CoT’s
Representative and in such manner as to cause as little disruption as
reasonably practicable to the CoT’s use of the Facilities, rectify all
Snagging Matters within three (3) calendar months of the issue of the
Snagging Notice (“Snagging Period”), provided that, for the avoidance of
doubt, the Parties recognise and agree that Practical Completion can
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occur prior to the rectification of Snagging Matters and/or the issue of the
Snagging Notice..
26.1.2
26.2
26.3
26.4
In the event that Private Party fails to attend to all Snagging Matters during
the Snagging Period, the CoT shall withhold the cost of rectifying such
Snagging Matters as provided in the Snagging Notice from the Unitary
Payment until such Snagging Matters are attended to.
Information
26.2.1
The Private Party shall ensure that the CoT's Representative and/or the
Independent Certifier are/is provided with all the information he may
reasonably require concerning the Private Party's Post-Completion
Commissioning.
26.2.2
If the CoT's Representative, acting reasonably, makes any written
comment concerning the carrying out of the Private Party's PostCompletion Commissioning, such comments shall be taken into account
by the Private Party.
Private Party’s Post Completion Commissioning
26.3.1
The CoT’s Representative, the Independent Certifier and the Private
Party’s Representative shall jointly inspect the Facilities (the “Final
Completion Inspection”). The Independent Certifier shall determine, in
accordance with the terms of the Independent Certifier Agreement if the
conditions for the issue of a Certificate of Final Completion in respect of
the Facilities have been met.
26.3.2
If following the Final Completion Inspection in accordance with Clause
26.3.1 the Facilities is not in a condition so as to achieve the issue of a
Certificate of Final Completion by the Independent Certifier then he shall
promptly inform the Private Party in writing of any outstanding matters
which are to be attended to and the Private Party shall procure attendance
to such matters and shall give the Independent Certifier and the CoT not
less than five (5) Business Days notice in writing of the date when is the
Facilities are likely to be in a condition to achieve the issue of a Certificate
of Final Completion in accordance with this Agreement on which date the
Final Inspection shall be repeated.
26.3.3
The procedure outlined in Clause 26.3.2 shall be repeated until such time
as the Independent Certifier is satisfied that the conditions for issue of a
Certificate of Final Completion have been met and issues a Certificate of
Final Completion.
Operational Manuals
With effect from the Service Commencement Date and throughout the remainder of
the Project Term, the Private Party shall at all reasonable times make available to
the CoT's Representative on the Site all operation and maintenance manuals used
in respect of the Services.
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PART E: QUALITY ASSURANCE
27 QUALITY ASSURANCE
27.1
Quality Plan and Systems
27.1.1
The Private Party shall procure that all aspects of the Project Deliverables
are the subject of quality management systems, to be reflected in the
appropriate quality plans outlined in Clause 27.1.2below.
27.1.2
There shall be:
(a)
a Design Quality Plan;
(b)
a Construction Quality Plan; and
(c)
a Services Quality Plan for each Service, which shall be
consistent with ISO 9001:2000 (Scope: Property Facilities
Management Services) or any equivalent standard which is
generally recognised as having replaced them,
provided that the Design Quality Plan and the Construction Quality Plan
may be incorporated into one document.
27.1.3
The Private Party shall procure that the Project Deliverables are carried
out in compliance with the Quality Plans. All Quality Plans shall be
submitted to the CoT's Representative in accordance with Schedule 8
[Review Procedure] and the Private Party shall not be entitled to
implement or procure the implementation of any Quality Plan unless the
Private Party is entitled to proceed with such implementation pursuant to
Schedule 8 [Review Procedure].
27.1.4
The Private Party shall implement the quality management systems
referred to in Clause 27.1 and shall procure that:
(a)
the Construction Subcontractor implements the Design Quality
Plan;
(b)
the Construction Subcontractor implements the Construction
Quality Plan;
(c)
the Operations Subcontractor implements the relevant Services
Quality Plan for the Services.
27.1.5
Where any aspect of the Project Deliverables is performed by more than
one contractor or sub-contractor, then the provisions of this Clause (in so
far as relevant or appropriate to the activities to be performed by such
contractor or sub-contractor) shall apply in respect of each of such
contractors or sub-contractors, and references in this Clause to
"Construction Subcontractor " or "Operations Subcontractor " shall be
construed accordingly. To avoid doubt, this Clause shall not be construed
as requiring subcontractors of the Construction Subcontractor or the
Operations Subcontractor to have their own quality plans but only to
comply with the Design Quality Plan and the Construction Quality Plan or
the relevant aspects of the Services Quality Plan (as the case may be).
27.1.6
The Private Party shall from time to time submit to the CoT's
Representative in accordance with Schedule 8 [Review Procedure] any
material changes to any of the Quality Plans that it seeks to effect. The
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CoT's Representative may raise comments or object on any such
proposed change only on the grounds set out in paragraph 4.2 of
Schedule 8 [Review Procedure].
27.1.7
27.1.8
27.2
In the event that any ambiguity, uncertainty, dispute or discrepancy arises
in relation to the nature and scope of the Private Party's obligations under
this Clause relating to Quality Assurance, wherever possible, the
provisions of this Clause shall be interpreted and construed in such a
manner as to resolve the apparent ambiguity, uncertainty, dispute or
discrepancy so that all the provisions of this Clause may be given meaning
and effect but, if such interpretation or construction is not possible, the
provisions of this Clause shall be given meaning and effect in the following
order of precedence (in descending order):
(a)
CoT’s Requirements;
(b)
(where applicable) standard ISO 9001:2000 as referred to in
Clause 27.1.2(c);
(c)
the Quality Plans referred to in Clauses 27.1.2;
(d)
the Private Party's Proposals; and
(e)
Good Industry Practice.
If there is no objection under Schedule 8 [Review Procedure] to a change
to any Quality Plan proposed pursuant to Clause 27.1.6, the Quality Plan
shall be amended to incorporate such change.
Quality Manuals and Procedures
If any Quality Plan refers to, relies on or incorporates any quality manual or
procedure, then such quality manual or procedure or the relevant parts of it shall be
submitted to the CoT's Representative at the time that the relevant Quality Plan or
part of (or change to) a Quality Plan is submitted in accordance with Schedule 8
[Review Procedure], and the contents of such quality manual or procedure shall be
taken into account in the consideration of the relevant Quality Plan or part of (or
change to) a Quality Plan in accordance with Schedule 8 [Review Procedure].
27.3
Quality Monitoring
27.3.1
The CoT's Representative may carry out audits of part or all of the Private
Party's quality system (as appropriate) (including all relevant Quality Plans
and any quality manuals and procedures). Such audits shall be carried out
at appropriate intervals designated by the CoT's Representative, provided
that:
(a)
the CoT's Representative shall give the Private Party reasonable
notice of at least five (5) Business Days of when he proposes to
carry out such audits; and
(b)
the CoT's Representative may carry out other periodic
monitoring and spot checks of the Private Party's quality
management systems and the other quality systems referred to
in this Clause. The Private Party shall procure that the CoT's
Representative shall have a like right in respect of the Private
Party and the Operations Subcontractor. The Private Party shall
co-operate and shall procure that any Sub-Contractor
co-operates with the CoT's Representative including providing
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him with all information and documentation, which he reasonably
requires in connection with his rights under this Clause; and
(c)
the CoT Representative shall not conduct such audits within a
30 days after the last audit.
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PART F: ICT PROJECT
28 INFORMATION AND COMMUNICATION TECHNOLOGY
28.1
The CoT shall prior to the Effective Date procure an ICT service provider to provide
the ICT systems and services under a separate agreement between the CoT and
the ICT service provider.
28.2
The Private Party undertakes that it shall co-operate with the ICT service provider
on and around the Site throughout the Project Term and shall enter into an ICT
Interface Agreement on the terms substantially in the form attached to this
Agreement as Schedule 25 [ICT Interface Agreement] which form sets out:
28.2.1
the relationship and allocation of risks between; and
28.2.2
working practices adopted by,
the ICT service provider and the Private Party, in order to ensure the uninterrupted
provision of the Services and Works by the Private Party under this Agreement (and
to enable the ICT service provider to provide the services required of it under the
agreement for the provision of the ICT services).
28.3
The CoT shall require the ICT service provider (and any additional or replacement
ICT service provider) to co-operate with the Private Party and shall procure the ICT
service provider (and any additional or replacement ICT service provider) to agree
with the Private Party the terms of and enter into the ICT Interface Agreement.
28.4
At the request of the CoT, the Private Party shall adjust the Programme as shall be
necessary to allow a workable interface between the provision of the Services and
Works under this Agreement and the provision of the services under the separate
agreement for ICT services, provided that such adjustment may only be required to
the extent that it does not cause a delay to the Target Completion Date or increase
the costs of the Private Party and/or the Works.
28.5
In addition, the Private Party shall, at the request of the CoT, designate a project
co-ordinator who shall be responsible for liaising with the ICT service provider for
the provision of ICT services and facilitating on a day-to-day basis the
implementation of this Project and the provision of the ICT services.
28.6
The Private Party shall procure that subject to complying with all relevant safety
procedures, the Private Party's Site Rules (if in effect) and any reasonable
directions with regard to safety issued by the Private Party from time to time, the
ICT service provider [and any bidders for the ICT Project] shall have access to the
Site, Works and Facilities at all reasonable times upon prior notice (except in the
event of an emergency) solely for the purpose of the provision of ICT services and
the implementation and operation of the ICT Project (but, in case of the operation of
the ICT Project), in accordance with the agreement referred to in Clause 28.1.
28.7
The Private Party shall comply with the terms of the ICT Interface Agreement.
28.8
The Private party shall not be liable for the failure to deliver the Project Deliverables
where the reason for the failure arises as a result of the acts or omissions of the ICT
service provider.
28.9
Except as expressly provided to the contrary in this Agreement or as expressly
provided pursuant to any Variation, none of the CoT, any CoT Party, the Private
Party or any Private Party Party shall have any rights or be subject to any
obligations with regard to the implementation or provision of [the ICT Project or] the
ICT service provider.
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PART G: SERVICES
29 THE SERVICES
29.1
General obligations
29.1.1
The Private Party shall procure that the Services Commencement Date
shall occur by no later than the Scheduled Service Commencement Date.
Notwithstanding the aforegoing, failure by the Private Party to procure that
the Services Commencement Date occur by no later than the Scheduled
Service Commencement Date shall not constitute, or result in a Private
Party Event of Default in terms of Clause 42 [Private Party Events of
Default].
29.1.2
The Private Party shall with effect from the Service Commencement Date
ensure (or procure that the Operations Subcontractor ensure) that the
Services are available:
(a)
in accordance with the terms of this Agreement; and
(b)
in accordance with the CoT’s Requirements,
To avoid doubt, the obligations in paragraphs (a) to (b) above are
independent obligations. In particular:
(c)
the fact that the Private Party has complied with the Agreement
shall not be a defence to an allegation that the Private Party has
not satisfied the CoT’s Requirements; and
(d)
the fact that the Private Party has satisfied the CoT’s
Requirements shall not be a defence to an allegation that the
Private Party has failed to comply with the Agreement.
30 MAINTENANCE
30.1
Programmed Maintenance
30.1.1
No later than six (6) months prior to the Service Commencement Date, the
Private Party shall submit to the CoT's Representative in accordance with
Schedule 8 [Review Procedure] a Schedule of Programmed Maintenance
for the Facilities covering the period from the Service Commencement
Date to the expiry of that Contract Year (i.e. "Year X").
30.1.2
No later than three (3) months prior to the first anniversary of the Service
Commencement Date (i.e. "Year X + 1") (and each subsequent Contract
Year thereafter during the Project Term) the Private Party shall submit to
the CoT’s Representative in accordance with Schedule 8 [Review
Procedure] a Schedule of Programmed Maintenance in relation to the
overall Facilities for the next succeeding Contract Year.
30.1.3
Each Schedule of Programmed Maintenance shall contain the following
information (the "Programmed Maintenance Information"):
(a)
details of the proposed start and end dates for each period of
Programmed Maintenance, the nature of the works to be carried
out, the frequency thereof and the proposed hours of work;
(b)
details of any foreseeable effect of the Programmed
Maintenance on the delivery of any of the Services; and/or
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(c)
30.2
details of any foreseeable effect
Maintenance on the activities of CoT.
of
the
Programmed
30.1.4
Not later than ten (10) Business Days prior to the commencement of any
quarter (being a three month period commencing on 1 April, 1 July, 1
October or 1 January), the Private Party may submit to the CoT's
Representative in accordance with Schedule 8 [Review Procedure] a
revision to the Schedule of Programmed Maintenance for the Contract
Year in which the relevant quarter falls showing the effect of the proposed
changes to the Programmed Maintenance Information. If the CoT's
Representative does not raise comments on such proposed revision in
accordance with Schedule 8 [Review Procedure], the Schedule of
Programmed Maintenance as revised shall become the Schedule of
Programmed Maintenance in respect of that quarter.
30.1.5
Where the CoT's Representative raises comments in respect of any
Programmed Maintenance periods and/or hours of work shown in a
Schedule of Programmed Maintenance in accordance with paragraph 5.9
of Schedule 8 [Review Procedure], he shall indicate whether, and if so
when, the Programmed Maintenance can be re-scheduled and the Private
Party shall amend the relevant Schedule of Programmed Maintenance
accordingly.
Programmed and Unprogrammed Maintenance
30.2.1
30.2.2
The Private Party shall not carry out any Programmed Maintenance or
Unprogrammed Maintenance Works save:
(a)
in accordance with a Schedule of Programmed Maintenance to
which no objection has been made under Schedule 8 [Review
Procedure] or, where comment has been raised in respect of the
nature, frequency and duration of any Programmed
Maintenance, the Schedule of Programme Maintenance has
been amended pursuant to Clause 30.1.5; and
(b)
otherwise in accordance with the procedures set out in Clause
30.2.4; or
(c)
in the case of Unprogrammed Maintenance Work, in accordance
with Clause 30.2.3.
The following provisions shall apply notwithstanding that there has been
no objection to a Schedule of Programmed Maintenance:
(a)
the CoT's Representative may, at any time, require the Private
Party to accelerate or defer any Programmed Maintenance by
giving written notice to the Private Party, (unless otherwise
agreed) of not less than twenty five (25) Business Days prior to
the scheduled date for carrying out such Programmed
Maintenance, which notice shall set out the time and/or periods
at or during which the CoT requires the Programmed
Maintenance to be performed;
(b)
if the CoT serves a notice of acceleration or deferment, (as
described in Clause (a)), the Private Party shall, within ten (10)
Business Days of receipt of that notice, notify the CoT:
(i)
in circumstances other than those contemplated in
clause (ii) below, of the amount of any additional
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reasonable costs which it will incur as a direct
consequence of such acceleration or deferment (the
"Estimated Increased Maintenance Costs"); or
(ii)
that the Private Party is unable to accommodate the
requirement of the CoT to accelerate or defer the
Programmed Maintenance, it being agreed that the
Private Party shall only be entitled to do so if:
(1)
such acceleration or deferment will prejudice
any relevant manufacturer’s warranties;
(2)
spare parts or other required resources are
not
available,
should
Programmed
Maintenance be accelerated;
(3)
the acceleration or deferment will result in
other items of Programmed Maintenance
being negatively impacted upon by such
acceleration or deferral;
(4)
the acceleration or deferment will adversely
impact on the ability of the Private Party to
comply with its obligations in relation to the
Project Deliverables;
in the circumstances in (ii) above the Private Party
shall not be required to accommodate the
requirements of the CoT provided that it has provided
reasonable proof or evidence that the conditions
Clauses 30.2.2(b)(ii) are present;
30.2.3
(c)
the CoT shall, within a further period of five (5) Business Days
following receipt from the Private Party of notification of the
amount of the Estimated Increased Maintenance Costs under
Clause (b), at the CoT's option, either confirm or withdraw its
request to accelerate or defer the Schedule of Programmed
Maintenance. If the CoT does not confirm or withdraw its
request to accelerate or defer within five (5) Business Days of
receipt of notification of the amount of Estimated Increased
Maintenance Costs under Clause (b), the request shall be
deemed not to have been confirmed;
(d)
if the CoT confirms the request within the aforesaid period the
Private Party shall accelerate or defer the Programmed
Maintenance in accordance with the CoT’s Requirements and
the CoT shall reimburse the Private Party the direct and
reasonable costs actually incurred by the Private Party as a
consequence of such acceleration or deferment up to, but not
exceeding, the amount of the Estimated Increased Maintenance
Costs.
If the need arises for:
(a)
Maintenance Works (other than in an emergency or works which
in the reasonable opinion of the Private Party are of a de
minimis or non-disruptive nature) which are not scheduled to be
carried out as part of the Programmed Maintenance
("Unprogrammed Maintenance Works"), the Private Party shall
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notify the CoT upon becoming aware of the need for such
Unprogrammed Maintenance Works with an indication of the
proposed start and end dates of the works, the nature of the
works to be carried out, the frequency thereof, the proposed
hours of work and the estimated duration of the requisite
Unprogrammed Maintenance Works provided that the Private
Party shall take reasonable steps to minimise the impact of the
Unprogrammed Maintenance Works on the activities of the CoT
and shall where it is reasonably appropriate, rearrange the start
and end dates of the works and the proposed hours of the works
where so requested by the CoT in order to minimise the
disruption of such Unprogrammed Maintenance Works on the
CoT; or
(b)
Unprogrammed Maintenance Works as a result of an
emergency, the Private Party may carry out such
Unprogrammed Maintenance Works promptly provided that the
Private Party shall notify the CoT’s Representative as soon as
possible (and in any event within two (2) Business Days) of the
occurrence of the emergency, the extent of the necessary
Unprogrammed Maintenance Works and the reasons for them.
The Private Party shall take all reasonable steps to minimise the duration
of such Unprogrammed Maintenance Works. Nothing in this sub-Clause
shall prevent the CoT from making any Deductions from the Unitary
Payments pursuant to Schedule 13 Part 2 [Payment Mechanism].
30.2.4
30.3
Where Programmed Maintenance scheduled to be carried out in
accordance with the Schedule of Programmed Maintenance has been
deferred by the CoT's Representative under Clause 30.2.2, the Private
Party shall not be treated as having failed to perform the relevant Service
on account of the condition of the Facilities or any part of them from the
time the Programmed Maintenance was scheduled to have been
completed until the time the deferred Programmed Maintenance was
scheduled to have been completed, but not afterwards, provided always,
to avoid doubt, that the Private Party shall not be relieved from the
consequences of any failure to maintain the Facilities in respect of any
period prior to the period for performing the particular work according to
the Schedule of Programmed Maintenance.
Maintenance Survey
30.3.1
On the 3rd anniversary of Service Commencement Date and every 5th
(fifth) anniversary thereafter the CoT may procure that a survey
(“Maintenance Survey”) of the Project Assets and Facilities, is carried out
by a reputable and suitably qualified independent expert with appropriate
knowledge of head office accommodation, selected by the CoT from a
panel of 5 (five) such experts nominated by the Private Party.
30.3.2
The person selected by the CoT in terms of Clause 30.3.1 to carry out the
Maintenance Survey (“the Maintenance Surveyor”) shall be instructed in
accordance with a scope of works agreed between the Parties, but to
include inter alia a survey of the Project Assets and the Facilities for
compliance with the requirements of this Agreement and to procure a
schedule of works (if any) required to put the Project Assets and Facilities
into the condition they would have been in if the requirements of this
Agreement had at all times up to the date of the Maintenance Survey been
substantially complied with by the Private Party.
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30.3.3
30.3.4
Following each Maintenance Survey, the Maintenance Surveyor shall
provide each Party with a copy of the Maintenance Survey, including a
copy of the schedule of works (if any) contemplated under Clause 30.3.2
Such Maintenance Survey, in the absence of manifest error, shall be final
and binding upon the Parties, provided that any Dispute relating to the
Maintenance Survey shall be referred for resolution in accordance with the
Fast Track Dispute Resolution Procedure. Thereafter, the Private Party
shall carry out all such required works:
(a)
where the Private Party’s Schedule of Programmed
Maintenance already contemplates any item of required work, by
no later than the date specified in the relevant Schedule of
Programmed Maintenance unless otherwise recommended by
the Maintenance Surveyor whereupon the relevant work shall be
completed by no later than the date so recommended;
(b)
in the case of any other item of work required, by the date
recommended by the Maintenance Surveyor in his Maintenance
Survey or if later, within three months of acceptance or
resolution of the dispute relating to the Maintenance Survey or
such other date or period as may be agreed between the
Parties.
On the relevant date as per Clause 30.3.3 the CoT shall procure that the
Maintenance Surveyor either confirms to the CoT that the relevant
required works have been carried out or notifies the CoT and the Private
Party that the relevant required works remain pending or are incomplete
(an “Outstanding Required Work Notice”). The Outstanding Required
Work Notice shall be in writing, and shall specify:
(a)
the relevant required work which remains pending or incomplete
or not completed to the standard required under Schedule 6
[Specifications] and Performance Standards (the “Outstanding
Required Work”); and
(b)
the Maintenance Surveyor’s estimate of time to carry out the
Outstanding Required Work (the “Outstanding Required Work
Time”).
30.3.5
If the Private Party believes it has completed the Outstanding Required
Work within the Outstanding Required Work Time, the Private Party shall
notify the CoT in writing accordingly.
30.3.6
The Private Party shall pay the costs of the Maintenance Survey up to but
not exceeding an amount of R1,500,000 (one million five hundred
thousand Rand) (Indexed Linked). The Private Party shall be liable for any
costs to retain the Maintenance Surveyor (if necessary) to inspect and
approve the undertaking of any Outstanding Required Work at any time
after the initial inspection contemplated in Clause 30.3.4.
31 MONITORING OF PERFORMANCE
31.1
Monitoring
31.1.1
In carrying out the Project Deliverables, the Private Party shall, and shall
procure that all Private Party Parties and any other persons for whom it is
responsible shall, comply with the provisions of Schedule 13, Part 1
[Performance Standards and Payment Mechanism].
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31.2
31.1.2
The Private Party shall send such representatives to such meetings as the
CoT may reasonably require from time to time to discuss the performance
of the Private Party against the requirements of the Performance
Monitoring System.
31.1.3
The Private Party shall be responsible for monitoring its performance of
this Agreement, in the manner and at the frequencies set out in Schedule
13 Part 1 [Performance Standards and Payment Mechanism]. The CoT
may at all reasonable times observe, inspect and satisfy itself as to the
adequacy of the monitoring procedures (including without limitation
carrying out sample checks).
CoT’s Remedial Rights
31.2.1
The provisions of Clauses 31.3 to 31.9 (inclusive) shall apply
(a)
if the CoT, acting reasonably, considers that breach by the
Private Party of any obligation under this Agreement:
(i)
create an immediate and serious threat to the health or
safety of any user of the Facilities; or
(ii)
result in a material interruption in the provision of one
or more of the Services at any time;
and the Private Party fails to remedy such breach within 5 (five)
business Days of receipt by the Private Party of a written notice
from the CoT requiring the remedying of such breach. To avoid
doubt, it is acknowledged that the Private Party has no right to
require determination as to whether conditions referred to in
Clause 31.2.1(a)(i) and/or (ii) above exist before the CoT takes
any action in terms of this Clause 31.2; only subsequently may it
refer such a dispute for resolution;
(iii)
(b)
the CoT has served a 2nd H Warning Notice in
accordance with Annex 1 to Schedule 13
[Performance Standards and Payment Mechanism]
and the Private Party fails to submit a remediation plan
within the time periods set out in paragraph 10.7 of
Annex 1 of Schedule 13, Part 1 [Performance
Standards and Payment Mechanism]; or
if the Private Party is not in breach of its obligations as described
in Clause (a)(i) and (a)(ii) but the CoT reasonably considers and
notifies the Private Party that the circumstances constitute an
emergency.
provided that the CoT must cease to exercise its rights in terms of this
Clause when the reason for the exercise of its rights in the first instance
no longer applies.
31.3
In any of the circumstances set out in Clause 31.2.1 the CoT, acting reasonably,
may (without prejudice to its rights under Clause 42 [Private Party Events of
Default] or any other express rights under this Agreement) either:
31.3.1
if it considers that there is sufficient time and that it is likely that the Private
Party will be willing and able to provide assistance, require the Private
Party by written notice to take such steps as the CoT considers necessary
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or expedient to mitigate or rectify such state of affairs (the "Clause 31.3.1
Notice"); or
31.3.2
31.4
if it considers there is not sufficient time, or that the Private Party is not
willing and able to take the necessary steps, upon prior notice to the
Private Party take such steps as it considers to be appropriate (either itself
or by engaging others to take any such steps) to ensure performance of
the relevant Services to the standards required by this Agreement (or as
close as possible to those standards as the circumstances permit and, in
any event, in accordance with Good Industry Practice).
The Private Party shall confirm whether or not it is willing to take the steps referred
to in the Clause 31.3.1 Notice, within ten (10) Business Days of service of that
notice or, in the case of an emergency, (as described in Clause 31.2.1(b) such
shorter period as the CoT stipulates in the relevant notice. If:
31.4.1
the Private Party does not confirm that it is willing to take the steps set out
in the Clause 31.3.1 Notice; or
31.4.2
the Private Party, having confirmed that it is willing to take the steps set
out in the Clause 31.3.1 Notice, fails to take all of the steps set out by the
CoT in the Clause 31.3.1 Notice within such time as the CoT, acting
reasonably, shall think fit,
then (without prejudice to Clause 31.3.2) the CoT, acting reasonably, may itself take
or engage others to take such steps to rectify or mitigate the situation as it
considers appropriate.
31.5
If the CoT takes steps itself in accordance with this Clause as a result of the
circumstance referred to in Clause 31.2.1(a)(i), 31.2.1(a)(ii) and 31.2.1(a)(iii) then
for so long as and to the extent that such steps are taken, and this prevents the
Private Party from providing any part of the Project Deliverables:
31.5.1
the Private Party shall be relieved from such obligations; and
31.5.2
in respect of the period in which the CoT is taking such steps referred to in
the Clause 31.3.1 Notice, the Unitary Payments due from the CoT to the
Private Party in respect of the obligations affected by those steps shall
equal the amount the Private Party would have received if it were
performing the obligations affected by the steps referred to in Clause
31.3.1 Notice in full over such period less in the case where the CoT is
taking steps pursuant to clause 31.2.1(a)(iii), any Deductions in respect of
that breach as calculated in accordance with the payment mechanism in
this Agreement.
31.6
Where the CoT itself elects to take steps to rectify or mitigate the situation in
accordance with Clause 31.3 above, (i.e. where the CoT considers it to be
necessary or expedient to do so), the steps which the CoT may take shall include
(but not be limited to) the partial or total suspension of the right and obligation of the
Private Party to provide one or more of the Services, but only for so long as the CoT
shall determine to be necessary (acting reasonably) having regard to the relevant
circumstances or until such time as the Private Party shall have demonstrated to
the reasonable satisfaction of the CoT that it will perform (and is capable of
performing) its obligations in respect of the relevant Services to the required
standard.
31.7
If the CoT either takes steps itself or requires the Private Party to take steps in
accordance with this Clause as a result of the circumstance referred to in
Clause31.2.1(b)::
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31.7.1
for so long as and to the extent that such steps are taken and this prevents
the Private Party from providing any part of the Project Deliverables, the
Private Party shall be relieved from such obligations;
31.7.2
the CoT shall indemnify and keep indemnified the Private Party at all times
from and against all additional direct costs, losses, expenses or damages
suffered or incurred in relation to undertaking such steps over and above
those that would otherwise have been incurred in the proper performance
of the Private Party's obligations under this Agreement;
31.7.3
in respect of the time period over which such steps are taken and provided
that the Private Party provides the CoT with such reasonable assistance
as the CoT may need in the taking of such steps (such assistance,
however to be at the reasonable expense of the CoT to the extent of any
incremental costs), the Unitary Payments due from the CoT to the Private
Party in respect of the obligations affected by those steps shall equal the
amount the Private Party would have received if it was satisfying all its
obligations affected by the steps required in Clause 31.3.1 Notice in full
over such period;
31.7.4
any costs incurred by the CoT in taking such steps or requiring the Private
Party to take such steps shall be borne by the CoT.
31.8
To the extent that the parties shall agree, or it shall be determined in accordance
with Schedule 21 [Dispute Resolution Procedure], that the CoT was not reasonable
in requiring the Private Party to take such steps (or in taking such steps itself) as
are referred to in Clause 31.3, then the CoT shall indemnify and keep indemnified
the Private Party at all times from and against any costs, losses, expenses or
damages (over and above those that would otherwise have been incurred by the
Private Party in the proper performance of its obligations under this Agreement) that
are directly and reasonably incurred by the Private Party in complying with those
requirements of the CoT as are agreed or determined not to be reasonable. To
avoid doubt, it is acknowledged that the Private Party has no right to require
determination before taking any such action that the CoT may specify; only
subsequently may it refer any dispute for resolution to determine if the CoT was
reasonable in requiring the Private Party to take such steps.
31.9
Subject to Clauses 31.7 and 31.8 and provided a breach has occurred in
accordance with Clause 31.2.1(a):
31.10
31.9.1
any costs or expenses incurred by the Private Party in taking such steps
as are required by the CoT pursuant to Clause 31.3.1 shall be borne by
the Private Party;
31.9.2
the Private Party shall reimburse the CoT for all reasonable costs, losses,
expenses or damages directly and reasonably incurred by it in relation to
taking the steps, or engaging others to take the steps, referred to in Clause
31.3.1 ; and
31.9.3
the CoT shall be entitled to deduct any such amount from any amount
payable to the Private Party under the provisions of this Agreement in
accordance with the provisions of clause 5.3 of Schedule 13.
Upon cessation of any steps taken by the CoT pursuant to Clause 31.2, the CoT
shall reimburse the Private Party all reasonable costs incurred by the Private Party
in meeting its obligations under this Agreement after the steps have ceased to the
extent that such steps precluded the Private Party from performing its obligations
under this Agreement and where such costs are incurred by the Private Party as a
result of the CoT having failed during the period in which CoT took steps to maintain
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the Facilities and/or the Project Assets or provide the Services in accordance with
the requirements of the PPP Agreement.
32 SITE SECURITY AND PERSONNEL ISSUES
32.1
32.2
Access
32.1.1
The CoT shall, subject to applicable Laws, have the right to refuse
admittance to, or order the removal from, the Facilities of any person
employed by (or acting on behalf of) the Private Party or a Private Party
Party whose presence, in the reasonable opinion of the CoT, is likely to
have a or has had a material adverse effect on the performance by the
CoT of its duties or poses a serious threat to the health and safety of
others in the Facilities.
32.1.2
Action taken under Clause 32.1.1 shall forthwith be confirmed in writing by
the CoT to the Private Party and, to avoid doubt, shall not relieve the
Private Party of any of its obligations under this Agreement.
32.1.3
If and when so directed in writing by the CoT, the Private Party shall within
twenty (20) Business Days provide a list of the names and addresses of all
persons it expects may require admission in connection with this
Agreement, to any premises occupied by the CoT, specifying the
capacities in which those persons are concerned with this Agreement and
giving such other particulars as the CoT may reasonably require.
CoT Policies
32.2.1
The Private Party shall, and shall procure that all Private Party Parties
shall in the design, operation of the Facilities and provision of Services,
comply at all times with:
(a)
all CoT Policies that have been made available to it by the CoT
prior to the Signature Date; and
(b)
such other CoT Policies that have not been made available to
the Private Party before the Signature Date, but only to the
extent that such compliance does not increase the costs of risk
of or timing and delivery of the specific components of the
Services to which a particular CoT Policy applies in excess of
the amount that has been provided for it in the Financial Model.
32.2.2
The CoT shall notify the Private Party of any amendments to the CoT
Policies or any additional policies as soon as possible (and in any event
prior to such amendment or addition taking effect in relation to the Private
Party) and if the Private Party believes, acting reasonably, that the
amendment will have an adverse effect on the Private Party’s ability to
provide or on the costs of, risk of, or delivery of the Project Deliverables or
any part of them, the Private Party shall notify the CoT’s Representative
accordingly and the amendment shall be treated as a CoT Variation in
accordance with Schedule 15 [Variation Procedure].
32.2.3
The CoT may, at any time prior to the Private Party implementing any
change made to the CoT Policies, at its sole discretion, notify the Private
Party that the Private Party shall not be obliged to comply with any
amendment to any CoT Policy and that the Private Party should continue
to comply with the relevant CoT Policy prior to any amendment, in which
case such amendment shall not be treated as a Variation.
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32.3
Resources and Training
32.3.1
32.4
The Private Party shall procure that:
(a)
there shall at all times be a sufficient number of staff (including
all relevant grades of supervisory staff) engaged in the provision
of the Services with the requisite level of skill and experience. To
avoid doubt, this obligation shall include ensuring that there are
sufficient staff to cover periods of holiday, sickness, other
absence, and anticipated and actual peaks in demand for each
of the Services; and
(b)
all staff receive such training and supervision as is necessary to
ensure the proper performance of this Agreement, maintenance
of a quality service in accordance with the Quality Plans
established under Clause 27 and compliance with all health and
safety rules, procedures and requirements.
Lists and Records
32.4.1
The Private Party shall procure that the CoT's Representative shall at all
reasonable times have access to all material details in respect of all
employees of the Private Party or any Sub-Contractor engaged in the
provision of the Services including numbers and categories of staff
employed to perform the Services and including in respect of each such
employee:
(a)
details of qualifications; and
(b)
details of training undertaken by the employee.
33 STOCKS, CONSUMABLES, MATERIALS AND EQUIPMENT
33.1
Standards
33.1.1
The Private Party shall ensure that the goods, equipment, consumables
and materials used by it or any Sub-Contractor in connection with the
provision of any of the Services (each as a distinct and separate
obligation) are:
(a)
maintained in a safe, serviceable and clean condition in
accordance with Good Industry Practice;
(b)
of the type specified in the Schedule 6 [Specifications] (where
appropriate); and
(c)
in compliance with any relevant rules, regulations, codes of
practice and/or South African Standards, which have the force of
Law, including without limitation the appropriate SABS or
equivalent specification and/or codes of practice.
and shall, as soon as practicable after receiving a request from the CoT's
Representative, supply to the CoT's Representative evidence to
demonstrate its compliance with this sub-Clause.
33.1.2
The Private Party shall, to the extent reasonably possible, procure that
sufficient stocks of goods, consumables, equipment and materials are held
in order to comply with its obligations under this Agreement.
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33.2
Hazardous substances and materials
33.2.1
The Private Party shall not install, keep or use in or on the Facilities any
materials, equipment or apparatus the installation, keeping or use of which
is likely to cause (or in fact causes):
(a)
material damage to the Facilities;
(b)
dust, noise or vibration constituting an excessive nuisance to the
users of the Facilities and/or occupiers of any property adjoining
or near to the Facilities; or
and shall use all reasonable endeavours to ensure (by directions to staff
and otherwise) that all materials, equipment or apparatus in or on the
Facilities is operated so as to minimise noise and vibration likely to cause
annoyance or disturbance and the unlawful generation or migration of any
hazardous substance.
33.2.2
The Private Party shall not bring in or on to (or keep or maintain in or on)
the Facilities any hazardous materials or equipment not necessary for the
provision of Project Deliverables.
33.2.3
Without prejudice to the generality of its obligations, the Private Party
shall:
(a)
procure that all hazardous materials and equipment necessary
for the purpose of the Private Party’s compliance with its
obligations in terms of this Agreement and which are used or
stored on the Site shall be kept in accordance with applicable
laws, and Good Industry Practice, properly and securely labelled
and stored, under appropriate supervision and used only by
appropriately trained and competent staff; and
(b)
use all practicable and reasonable means to:
(i)
prevent or counteract the unlawful emission of any
hazardous substance;
(ii)
avoid the unlawful discharge into any conducting
media serving the Facilities of any hazardous
substance;
(iii)
prevent the unlawful generation, accumulation or
migration of any hazardous substance at or from the
Facilities; and
(iv)
prevent any environmental claims arising or any
circumstances arising likely to result in any
environmental claims,
in so far as such hazardous substance is, or should be, under the control
of the Private Party pursuant to this Agreement.
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PART H: PAYMENT AND FINANCIAL MATTERS
34 PAYMENT
34.1
34.2
34.3
Unitary Payments
34.1.1
The Private Party shall not be entitled to receive any Gross Monthly
Instalment until the Relocation Completion Date, whereafter the Gross
Monthly Instalment shall become payable in accordance with Part 2 of
Schedule 13 [Performance Standards and Payment Mechanism].
34.1.2
Subject to Clauses 34.1.1, the CoT shall pay the Private Party the Gross
Monthly Instalment in accordance with the provisions of Part 2 of Schedule
13 [Performance Standards and Payment Mechanism].
Deductions
34.2.1
The Unitary Payment shall be subject to Deductions as provided for in
Schedule 13 Part 2 [Performance Standards and Payment Mechanism].
34.2.2
During the first three Contract Months following the Relocation Completion
Date (the “Acclimatisation Period”) the Unitary Payment shall not be
subject to any Deductions pursuant to Schedule 13, Part 2 [Performance
Standards and Payment Mechanism] for any Contract Month falling within
the Acclimatisation Period. After the expiry of the Acclimatisation Period
the provisions of this Clause 34.2.2 shall no longer apply and the Unitary
Payment shall be subject to Deductions pursuant to Schedule 13 Part 2
[Performance Standards and Payment Mechanism].
Invoicing and Payment Arrangements
The Invoicing and Payment Arrangements shall be provided for in Schedule 13 Part
2 [Performance Standards and Payment Mechanism].
34.4
Manner of Payment
The manner of payment shall be provided for in Schedule 13 Part 2 [Performance
Standards and Payment Mechanism].
34.5
Disputes
The process for disputes relating to all or any part of the Unitary Payment and/or
Additional Payment shall be provided for in Schedule 13 Part 2 [Performance
Standards and Payment Mechanism].
34.6
Late Payments
Late payments shall be provided for in Schedule 13 Part 2 [Performance Standards
and Payment Mechanism].
34.7
Set-Off
Set off shall be provided for in Schedule 13 Part 2 [Performance Standards and
Payment Mechanism].
34.8
VAT
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VAT shall be provided for in Schedule 13 Part 2 [Performance Standards and
Payment Mechanism].
35 INSURANCE
35.1
Required and other Insurances Policies
35.1.1
The Private Party shall take out and shall thereafter maintain and keep in
full force and effect (or procure that they are taken out, maintained and
kept in full force and effect) the insurances listed in Schedule 14
[Insurance] and any other insurances in respect of the Project as may be
required by Law and in accordance with Good Industry Practice (the
"Insurances") and for the periods specified in Schedule 14 [Insurances].
Each of the Insurances listed in Schedule 14 [Insurance] must be taken
out and become fully effective not later than the corresponding date set
forth in Schedule 14 [Insurance] for the period set out in Schedule 14
[Insurances] in respect of the insurances, details of which are set out in
Part 2 of Schedule 14 [Insurance], are taken out no later than the Practical
Completion Date. Each of the Insurances (if any) not listed in Schedule 14
[Insurance] must be taken out and become fully effective not later than the
earliest date required by Law. The Private Party shall place all the
Insurances with permitted insurers in accordance with applicable Law.
35.1.2
Each of the Insurances must be taken out with reputable insurer(s) and on
terms approved by CoT. CoT will not unreasonably withhold or delay its
approval of the proposed insurer or proposed terms of insurance. For the
avoidance of doubt, the CoT having approved the terms of all Insurances
and the identity of the insurers with whom they are taken out, any changes
to or substitution for such and/or to the identity of the insurers with whom
they are taken out shall be subject to the approval of the CoT (such
approval not to be unreasonably withheld or delayed) which approval shall
be deemed to have been given if not expressly withheld within ten (10)
Business Days of such terms and such identity being notified to the CoT.
35.1.3
Subject to any other provisions to the contrary in this Agreement, the
payment of the insurance premiums due and payable in respect of any
Insurance shall be the responsibility of the Private Party.
35.1.4
The Private Party shall procure that the insurances required in Schedule
14 [Insurance] for the Operating Period are taken out prior to and are in
effect from the Service Commencement Date as applicable.
35.1.5
No Party to this Agreement shall take any action or fail to take any action,
or (in so far as is reasonably within its power) permit anything to occur in
relation to it, which would entitle any insurer to refuse to pay any claim
under the policy applying to any Insurance.
35.1.6
The Private Party undertakes that each of the Insurances listed in
Schedule 14 [Insurance Policies] shall –
(a)
name the Private Party as the insured and CoT as co-insured for
its separate interest;
(b)
apply to each of the insured’s as if a separate policy had been
issued to each of them, other than in the event of exhaustion of
the sum insured or the limit of indemnity;
(c)
provide for non-vitiation protection in respect of any claim made
by CoT as co-insured insofar as and to the extent that it is not
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Uninsurable Risk. If non-vitiation protection becomes
Uninsurable Risk when any such insurance policy is first placed,
then the Private Party shall investigate further insofar as any
non-vitiation protection subsequently becomes available prior to
each renewal of the policy, or provide written confirmation
promptly upon the renewal thereof as to the unavailability
thereof to CoT. If any non-vitiation protection subsequently
becomes available, CoT shall be entitled to require the Private
Party to procure such protection and the costs thereof shall be
borne by the Private Party;
35.1.7
(d)
contain a provision waiving the insurers’ subrogation rights
against CoT, the CoT Employees and CoT’s agents;
(e)
provide for 90 (ninety) days’ prior written notice of its
cancellation, non-renewal or amendment or changes in the
policy to be given to the CoT by the underwriter of such
Insurance;
(f)
contain a provision recording that such Insurance is a primary
insurance and shall not be brought into contribution by any other
insurances; and
(g)
provide for payment of any proceeds under any of the material
damage insurances included in the Insurances to be made by
the insurers in accordance with Clause 35.6 (Reinstatement);
and
(h)
contain a provision that a notice of claim by an insured shall, in
the absence of manifest error, be accepted by the insurer as
valid notification of a claim in respect of the interests of all
insured parties.
The Private Party shall furnish CoT, on request, with –
(a)
true and complete copies of the policies of all the Insurances
(together with any other information reasonably requested by the
CoT relating to such policies) and the CoT shall be entitled to
inspect them during ordinary business hours; and
(b)
satisfactory evidence that the premiums due and payable under
any such policies have been paid and that the Insurances are in
full force and effect in accordance with the requirements of this
Clause 35.
35.1.8
The Private Party shall, as and when required pursuant to the terms of the
relevant Insurance, renew each Insurance for so long as any risk covered
thereby exists and shall furnish the CoT with true and complete copies of
each certificate of renewal for such Insurance as soon as possible but in
any event no less than at least 10 (ten) Business Days before the relevant
renewal date.
35.1.9
If the Private Party breaches any of sub-Clauses 35.1.1 or 35.1.3 above in
relation to any Insurance, the CoT may pay any premiums required to
keep such Insurance in force and effect, or itself procure such Insurance,
to the extent that CoT has insurable interests, and may recover all
premiums or other costs incurred by it in doing so from the Private Party
on written demand.
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35.1.10 [Should the Private Party or CoT submit more than four (4) claims per
annum for insurance, which claims arise as a result of any act or omission
of the CoT, its employees, officials, representatives or guests, the CoT
shall be liable for the deductible applicable, if any, as a result of such a
claims under the Insurances provided that
(a)
such act or omission of the CoT, its employees, officials,
representatives or guests did not result from any breach by the
Private Party of any of its obligations under this Agreement; and
(b)
such deductible exceeds an amount of R5 000,00.
35.1.11 The Private Party shall notify CoT within 5 (five) days after submitting any
claim in excess of R100 000,00 (Indexed Linked) under any of the
Insurances, accompanied by full details of the event that gave rise to the
claim.
35.1.12 The Private Party shall notify the CoT of any cancellation, non-renewal or
amendment or changes to the insurance policy in respect of the Insurance
thirty (30) days prior to such cancellation, non-renewal or amendment or
change to the insurance policy becoming effective.
35.1.13 Neither the failure to comply nor full compliance with the insurance
provisions of this Agreement shall limit or relieve the Private Party of its
liabilities and obligations under this Agreement.
35.2
Review of Insurance Costs
35.2.1
35.2.2
The costs of the Insurances shall be reviewed on or before the dates (and
each such date shall be the (“Insurance Costs Review Date”) referred to
below:
(a)
fifteen (15) Business Days prior to the planned Service
Commencement Date for the Insurances; and
(b)
fifteen (15) Business Days prior to the expiry of the insurance
period of each Insurance, for a three (3) year renewal term or a
lesser renewal term (but not being less than an annual renewal
term) where the Private Party can demonstrate to the CoT that a
three (3) year renewal period will cost substantially more than
the lesser period proposed by the Private Party or alternatively
that such Insurance is not available on a three (3) year
insurance term
In relation to the Insurances in Schedule 14 Part 2-A (Insurances –
Service Period) it is agreed that at the Signature Date the amount provided
for insurance costs in the Base Case Financial Model is R1 000 000,00
(one million Rand) per annum (Index Linked) excluding VAT Indexed for
every twelve (12) Contract Month period commencing from the Service
Commencement Date (the "Base Price"). The Private Party shall, no later
than (15) fifteen Business Days prior to the relevant Insurance Costs
Review Date, deliver to the CoT an Insurance Quotation for such
Insurances on materially the same terms as shall have been approved by
the CoT pursuant to Clause 35.1.2 from not less than three (3) reputable
insurers in the worldwide insurance market with a credit rating of A minus
(A -) as rated by Standard and Poors or better unless there are fewer than
three (3) reputable insurers with such a credit rating who are willing and
able to quote, in which case the Private Party shall approach those who
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are willing and able to quote and shall advise the CoT of those Insurance
Quotations.
35.2.3
Following notification to the CoT under Clause 35.2.2 the CoT and the
Private Party shall endeavour in good faith to agree which of the Insurance
Quotations shall be the applicable Insurance Quotation to be used for
purposes of Clause 35.2.4. If they fail to reach such agreement by the
relevant Insurance Cost Review Date, the lowest of the Insurance
Quotations obtained by the Private Party under Clause 35.2.1 shall be
used as the applicable Insurance Quotation for purposes of Clause 35.2.4.
35.2.4
In the event that the Insurance Quotation applicable in terms of Clause
35.2.3 is lower than the Base Price (Index Linked), the decrease in the
Base Price shall be shared between the parties in the manner as indicated
in the table below:
Percentage amount by which the
Insurance Quotation is less than the
Base Price (Index Linked):
Private Party
Share (%):
CoT
Share (%):
0 – 10
100
0
>10 – 30
20
80
>30 – 50
20
80
>50
0
100
Decrease
35.2.5
In the event that the Insurance Quotation applicable in terms of Clause
35.2.3 exceeds the Base Price (Index Linked), the increase in the Base
Price shall be shared between the parties in the manner as indicated in the
table below:
Percentage amount by which the
Insurance Quotation is more than
the Base Price (Index Linked) by:
Increase
35.2.6
Private Party
CoT
Share (%):
Share (%):
0-10
100
0
>10 – 30
60
40
>30 – 50
40
60
>50 – 100
0
100
> 100
0
100
The CoT shall only be liable under Clause 35.2.5 for any increases in the
actual cost of the Insurances which exceed the Base Price (Index Linked)
and which are not caused by any act or omission by the Private Party or
any subcontractor (or its or their respective subcontractors), employees or
agents.
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35.3
35.4
35.2.7
The Private Party shall, prior to implementation of the provisions of Clause
35.2.5, consider and report to the CoT on possible measures which can be
implemented to prevent the increase in the actual cost of the Insurances
above the Base Price (Index Linked), which shall include, without
limitation, increasing the maximum deductibles, to the extent required to
bring the Insurance Quotation to the same value as that of the Base Price
(Index Linked). Should the CoT, in its sole discretion, decide to accept the
Private Party’s proposed measures to prevent the increase in the actual
cost of the Insurances above the Base Price (Index Linked) which entails
an increase in the maximum deductibles, then the parties shall, subject to
Clause 35.2.7, on the occurrence of the relevant insured risk, share the
increase to the maximum deductibles, in the same manner and
percentages as indicated in the table referred to in Clause 35.2.5.
35.2.8
In the event that the percentage by which the Insurance Quotation
exceeds the Base Price (Index Linked) by 100% (one hundred per cent),
the parties shall meet to discuss the means by which the increase could be
mitigated, which shall include, without limitation, the extent to which the
scope of the Insurances can be changed.
Payment of Each Party’s Share
35.3.1
In the event that the accepted Insurance Quotation is lower than the Base
Price (Index Linked) after the Service Commencement Date, the CoT’s
share of the decrease in the Base Price (Index Linked) pursuant to Clause
35.2.4, shall be paid to the CoT forthwith.
35.3.2
In the event that the accepted Insurance Quotation is higher than the Base
Price (Index Linked) after the Service Commencement Date, the CoT’s
share in the increase to the Base Price (Index Linked) pursuant to Clause
35.2.5, shall be paid directly to the Private Party.
Uninsurable Risks
35.4.1
The Private Party shall notify the CoT of any risk, against which
Insurances are required, becoming an Uninsurable Risk within five (5)
Business Days of becoming aware of the same.
35.4.2
If both parties agree, or it is determined in accordance with Fast Track
Dispute Resolution Procedure, that:
(a)
the risk is Uninsurable; and
(b)
the risk being Uninsurable is not caused by the actions or
omissions of the Private Party or a Subcontractor
then the parties shall meet to discuss the means by which the risk should
be managed (including by way of self-insurance, captive or cell-captive
aggregate). Pending determination thereof, the Private Party shall
continue to comply with its obligations in terms of this Agreement.
35.4.3
The Private Party shall bear the onus of proving the circumstances in
Clause 35.4.2.
35.4.4
Where there is an Uninsurable Risk:
(a)
the Agreement shall continue notwithstanding the fact that the
parties may not have been able to agree the means by which
such risk should be managed;
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(b)
upon the existing cover lapsing (or where relevant prior to
inception) the Private Party shall be relieved of its obligation to
maintain insurance in respect of the Uninsurable Risk or where it
is possible to obtain such cover without the Uninsurable Risk,
then the Private Party shall only be relieved from its obligation to
include such risk in the insurance cover;
(c)
the Unitary Payments shall be reduced in each year for which
the relevant insurance is not maintained, by an amount equal to
the premium paid by the Private Party in respect of the relevant
risk in the year prior to it becoming an Uninsurable Risk (Index
Linked). Where the risk is an Uninsurable Risk for part of a year
only, the reduction in the Unitary Payments shall be pro rated to
the number of months for which the risk was an Uninsurable
Risk; and
(d)
in the case of any risk as set out in Schedule 14 [Insurance] in
respect of physical loss or damage to all or part of the Facilities
(“Physical Damage Risk”) or third party liability insurance (“Third
Party Liability Risk”) not including for the avoidance of doubt
non-vitiation or endorsement, or insurances for professional
indemnity risk any portion of such Physical Damage Risk or
Third Party Liability Risk as may be pertaining to equity returns
or shareholder dividends or any form of director and officers
liability insurance, on the occurrence of the relevant Uninsurable
Risk the CoT shall either:
(i)
pay to the Private Party for application in accordance
with Clause 35.5.2, an amount equal to the insurance
proceeds that would have been payable by the insurer
had the relevant insurance continued to be available
(payment to be made to the Insurance Proceeds
Account in accordance with Clause 35.5.1 [Application
of Proceeds] within six (6) calendar months of the date
on which the risk occurs, in which case the Agreement
shall continue but the Private Party pays the amount, if
any, of the deductible which would have been payable
with respect to such loss, provided that the CoT shall
have the same rights and powers that the insurer(s)
had in respect of the relevant insurance policies,
immediately prior to such risk becoming uninsurable;
or
(ii)
if the payment to be made exceeds the Unitary
Payment, terminate this Agreement and the provisions
of Clause 44 [Non-Default Termination - Force
Majeure] shall apply.
35.4.5
Where there is an Uninsurable Risk, the Private Party shall approach the
then current underwriters on a regular basis and in any event at intervals
of not less than six (6) months, and at the time of the twelve (12) monthly
renewal of Project policies, approach the insurance market generally to
establish whether such risk remains an Uninsurable Risk. The Private
Party shall in addition make such other enquiries as to the availability of
non-vitiation cover as the CoT may reasonably request from time to time.
35.4.6
Where a risk which was previously an Uninsurable Risk ceases to be so,
and the Private Party has become aware that this is the case, the Private
Party shall forthwith take out and maintain insurance in accordance with
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the requirements of this Agreement in respect of the risk and the
provisions of Clauses 35.4.1, 35.4.4 and 35.4.5 [Uninsurable Risks] shall
no longer apply to the risk. Any additional premium payable in respect of
such insurance shall be paid by the Private Party and added to the Unitary
Payment.
35.5
Application of Proceeds
35.5.1
All insurance proceeds received by the Private Party under the Insurances
referred to in Parts A and B of Schedule 14 [Insurance] shall be paid into
the Insurance Proceeds Account for the purposes of, and to be applied in
accordance with this Agreement. The Private Party shall provide a monthly
report on the application of the Insurance Proceeds indicating the credit
balance if any.
35.5.2
The Private Party shall apply any proceeds of any policies:
35.5.3
35.6
(a)
of third party liability or employers' liability insurance, directly in
satisfaction of the claim, demand, proceeding or liability in
respect of which such proceeds are payable or to reimburse the
Private Party to the extent that the liability has already been
made by it;
(b)
in the case of a claim against which the CoT is indemnified by
the Private Party either in meeting such claim or (at the CoT’s
option) by paying such money to CoT;
(c)
of any other insurance, subject to Clause 35.7 [Economic
Reinstatement Test] (when applicable), so as to ensure the
performance by the Private Party of its obligations under this
Agreement, including where necessary the reinstatement,
restoration or replacement of the Facilities or any other assets,
materials or goods, [(provided that if, after the Debt Amount has
been repaid in accordance with Clause 35.7 [Economic
Reinstatement Test], an amount of the relevant proceeds
remains unused, the Private Party shall be entitled to retain that
remainder)];
If the proceeds of any insurance claim are insufficient to cover the
settlement of such claims, the Private Party will make good any deficiency
forthwith.
Reinstatement
35.6.1
Subject to this Clause 35.7, where a claim is made or proceeds of
insurance are received or are receivable under any of the Insurances
referred to in Parts A and B of Schedule [14] [Insurance] (other than as
described in Clauses 35.5.2(a) or 35.5.2(b)) in respect of a risk of physical
loss or damage to Works, plant and equipment or temporary buildings or to
the Facilities or proceeds of Insurances providing cover for expenditure
necessary to either complete the Works or restore the operation of the
Facilities to a fully operable condition (“Material Damage Insurance”):
(a)
such insurance proceeds shall be applied to repair, reinstate or
replace each part or parts of the Project Assets in respect of
which insurance proceeds are received, in each case to the
standard complying with the Private Party’s obligations in terms
of this Agreement
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(b)
the Private Party shall deliver as soon as practicable and in any
event within twenty (20) Business Days after the making of the
claim a plan prepared by the Private Party for the carrying out of
the works necessary (the "Reinstatement Works") to repair,
reinstate or replace (the "Reinstatement Plan") such portion of
the Facilities as are the subject of the relevant claim or claims in
accordance with Clause 35.6.2 below. The Reinstatement Plan
shall set out:
(i)
the identity of the person(s) proposed to effect the
Reinstatement Works, which shall be subject to the
prior written approval of the CoT (not to be
unreasonably withheld or delayed) if such person(s)
is/are not the Construction Subcontractor;
(ii)
the proposed terms and timetable upon which the
Reinstatement Works are to be carried out (including
the date that the Facilities will become fully
operational), the final terms of which shall be subject to
the prior written agreement of the CoT(not to be
unreasonably withheld or delayed); and
(iii)
the amount of all relevant insurance proceeds
reasonably expected to be received in respect of the
claim submitted,
provided that if the parties fail to reach any such agreement,
then the dispute shall be referred for determination in
accordance with the Fast Track Dispute Resolution Procedure,
(c)
if the Reinstatement Plan (as amended by agreement with CoT
or as determined by Fast Track Dispute Resolution Procedure)
will enable the Private Party to comply with Clause 35.6.2 below
within a reasonable timescale:
(i)
the Reinstatement Plan will be adopted;
(ii)
the Private Party shall enter into contractual
arrangements to effect the Reinstatement Works with
the person(s) identified in the approved Reinstatement
Plan adopted by the CoT;
(iii)
prior to the earlier to occur of the Termination Date or
the Expiry Date, any amounts standing to the credit of
the Insurance Proceeds Account in respect of the
claim submitted for the Material Damage Insurance,
(the "Relevant Proceeds") (together with any interest
accrued) may be withdrawn by the Private Party from
the Insurance Proceeds Account as required to enable
it to make payments in accordance with the terms of
the contractual arrangements, referred to in Clause
(b)(ii) and to meet any other reasonable costs and
expenses of the Private Party for the sole purposes of
funding the Reinstatement Works. Following the earlier
to occur of the Termination Date and the Expiry Date,
the CoT may withdraw amounts standing to the credit
of the Insurance Proceeds Account for the purposes of
funding any Reinstatement Works;
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35.6.2
35.7
3
(iv)
the CoT agrees and undertakes that, subject to
compliance by the Private Party with its obligations
under this Clause 35.6.1, and provided that the Private
Party procures that the Reinstatement Works are
carried out and completed in accordance with the
contractual arrangements referred to in Clause (c)(ii) it
shall not exercise any right which it might otherwise
have to terminate the Agreement by virtue of the event
which gave rise to the claim for the Relevant
Proceeds;
(v)
the CoT undertakes to use reasonable endeavours to
assist the Private Party in the carrying out of the
Reinstatement Plan; and
(vi)
after the Reinstatement Plan has been implemented to
the reasonable satisfaction of the CoT and in
accordance with Clause 35.6.2 below, the CoT shall
permit withdrawal by the Private Party of any Relevant
Proceeds then held in the Insurance Proceeds
Account that have not been paid under Clause (c)(iii)
in respect of the Relevant Incident, together with any
interest accrued;
Where insurance proceeds are to be used in accordance with this
Agreement to repair, reinstate or replace any part of the Facilities and
Project Assets forming part of the Works, the Private Party shall carry out
the Reinstatement Works or procure that such Works are carried out in
accordance with Schedule 6 [Specifications] so that on completion of the
Reinstatement Works, the provisions of the Agreement are complied with.
Economic Reinstatement Test
35.7.1
If all or substantially all of the Facilities and Project Assets are destroyed
or substantially destroyed in a Relevant Incident or a series of related
events and the insurance proceeds (when taken together with any other
funds available to the Private Party) in respect of that event or series of
events (the “Reinstatement Proceeds”) are equal to or greater than the
amount required to repair, reinstate or replace the Facilities and Project
Assets, then the Private Party shall calculate the [loan life cover ratio] 3 in
accordance with the Financing Agreements (on the assumption that the
Facilities and Project Assets are repaired or reinstated in accordance with
this Agreement).
35.7.2
If the calculation referred to in sub-Clause 35.7.1 above shows that the
loan life cover ratio calculated in accordance with the Financing
Agreements is greater than or equal to the level at which an event of
default shall occur under the Financing Agreements, then the Private Party
shall apply the insurance proceeds in accordance with the Reinstatement
Plan set out in Clause 35.6.1.
35.7.3
If the calculation referred to in sub-Clause 35.7.1 above shows that the
loan life cover ratio calculated in accordance with the Financing
Agreements is less than the level at which an event of default shall occur
under the Financing Agreements, then at the option of the Lenders and
Note: Drafting term to be verified from the Finance Agreements.
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subject to the provisions of the Financing Agreements an amount equal to
the lesser of –
(a)
the amount of the Reinstatement Proceeds; and
(b)
the amount of the Debt Amount, as at the date of calculation of
the amounts payable under this Clause 35.7.3(b) less, to the
extent that it is a positive amount, the aggregate, as at the date
of calculation, of –
(i)
all credit balances on any bank accounts held by or on
behalf of the Private Party on the calculation date and
the value of any right of the Private Party or the
Lenders to receive insurance proceeds or proceeds
pursuant to letters of credit and of any such proceeds
actually received by them (save where such credit
balances or proceeds are paid to CoT and/or are to be
applied in reinstatement) and sums due and payable
from the Subcontractors and any other third parties in
respect of the Project;
(ii)
all amounts payable by the Lenders (or the counterparties to the interest rate or exchange rate hedging
arrangements provided for in the Financing
Agreements) to the Private Party in connection with
the early termination of such hedging arrangements as
a result of prepayment of amounts outstanding under
the Financing Agreements; and
(iii)
save where expressly dealt with in paragraphs (i)
and/or (ii) the market value of any other corporeal
assets of the Private Party in respect of the Project or
the market value of any assets ceded to the Lenders
for purposes of the Project (excluding those that are
transferred or required to be transferred to CoT
pursuant to this Agreement and the Vendor Loan as
defined in Schedule 16 (Compensation on
Termination)) less liabilities of the Private Party or
Lenders properly incurred in carrying out their
obligations under this Agreement or Lenders Direct
Agreement, as the case may be; all as at the
calculation date, provided that no account shall be
taken of any liabilities and obligations of the Private
Party arising out of –
(1)
agreements or arrangements entered into by
the Private Party to the extent that such
agreements or arrangements were not
entered into in connection with the Private
Party’s obligations in relation to the
Project; and
(2)
agreements or arrangements entered into by
the Private Party to the extent that such
agreements or arrangements were not
entered into in the ordinary course of
business and on commercial arm’s length
terms,
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shall be released from the Joint Insurance Account to the Private Party and shall be
applied by the Private Party towards the prepayment of the Debt Amount; provided,
however, that such release shall not discharge the Private Party from performing
the Project Deliverables in accordance with this Agreement.
36 INFORMATION AND AUDIT ACCESS
36.1
Records To Be Retained
36.1.1
The Private Party shall retain and maintain and procure that the
Construction Subcontractor and the Operations Subcontractor retains and
maintains all the records relating to the Project and/or Project Documents
(including superseded records) referred to in this Clause 36.1, in
accordance with the requirements of Good Industry Practice, as far as
reasonably possible, in chronological order, in a form that is capable of
audit and at its own expense:
(a)
the Agreement, its Schedules and the Project Documents
including all amendments to such agreements;
(b)
all other documents, software or other information expressly
referred to in this Agreement;
(c)
records relating to the appointment and supersession of the
CoT's Representative and the Private Party's Representative;
(d)
Project Data;
(e)
documents, drawings, design data or submissions raised in
accordance with Schedule 8 [Review Procedure];
(f)
documents relating to planning applications, consents, refusals
and appeals;
(g)
records relating to any specialist or statutory inspections of the
Facilities, including any roadways;
(h)
notices, reports, results and certificates relating to completion of
the Works and completion of the commissioning activities;
(i)
all operation and maintenance manuals;
(j)
documents relating to events of Force Majeure, Relief Events
and the consequences of the same;
(k)
all formal notices, reports or submissions made to or received
from the CoT's Representative in connection with the provision
of Services, the Monitoring of Performance;
(l)
all consents, authorisations, certificates, licences, registrations
or warranties related to the Works and/or provision of the
Service;
(m)
documents in support of claims for Unitary Payments;
(n)
documents submitted in accordance with Schedule 15 [Variation
Procedure] and all documents provided in support;
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(o)
documents related to referrals to the Dispute Resolution
Procedure;
(p)
documents related to change in ownership or any interest in any
or all of the shares in the Private Party;
(q)
documents relating to the rescheduling of the indebtedness of
the Private Party or refinancing of the Project;
(r)
tax invoices and records related to Value Added Tax;
(s)
financial records of the Private Party, including audited and
unaudited accounts of the Private Party and related reports;
(t)
records required by Law (including in relation to Health and
Safety matters and all Consents;
(u)
documents relating to insurance and insurance claims;
(v)
all other records, notices or certificates required to be produced
and/or maintained by the Private Party pursuant to this
Agreement or any Project Document; and
(w)
all records required in connection with Schedule 5 [Broad Based
Black Economic Empowerment]
36.1.2
The Private Party shall provide to the CoT's Representative all information,
documents, records and the like in the possession of, or available to, the
Private Party (and to this end the Private Party shall use all reasonable
endeavours to procure that all such items in the possession of the
Construction Subcontractor or any Operations Subcontractor shall be
available to it and the Private Party has included, or shall include, relevant
terms in all contracts with the Construction Subcontractor or Operations
Subcontractor to this effect) as may be reasonably requested by the CoT's
Representative for any purpose in connection with this Agreement or
CoT’s compliance with any of its statutory reporting obligations in
accordance with any Law.
36.1.3
For the purpose of:
(a)
the examination and certification of the CoT's accounts;
(b)
any examination pursuant to the Public Auditor Act 2004 and/or
the Municipal Finance Management Act 21 of 2003 of the
economy, efficiency and effectiveness with which the CoT has
used its resources; or
(c)
any auditing of the CoT required for purposes of compliance with
any Law,
Auditor General may examine such documents as he may reasonably
require which are owned, held or otherwise within the control of the
Private Party (and the Private Party shall procure that any person acting
on its behalf who has such documents and/or other information shall also
provide access) and may require the Private Party to produce such oral or
written explanations as he considers necessary. To avoid doubt, it is
hereby declared that the carrying out of an examination under the Public
Auditor Act 2004 and/or the Municipal Finance Management Act 21 of
2003 in relation to the Private Party is not a function exercisable under
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this sub-Clause. The parties acknowledge that the Office of the Auditor
General has the right to publish defaults of the Agreement (including
Confidential Information in its relevant reports to Government).
36.2
36.1.4
The Private Party shall, at the reasonable cost of the CoT, provide and
shall procure that its Subcontractors, at the reasonable cost of the CoT,
shall provide such information as the CoT may reasonably require from
time to time to enable it to meet its obligations to provide reports and
returns pursuant to regulations, directions or guidance applicable to the
CoT or as required by external agencies including, without limitation,
reports and returns regarding the physical condition of buildings occupied
by the CoT, health and safety, under the firecode and relating to
environmental health.
36.1.5
The Private Party shall note and facilitate the CoT’s compliance with the
Promotion of Access to Information Act 2 of 2000 or any other legal duty to
disclose information. In the event that the CoT is required to provide
information to a person as a result of a request made to it under this act,
the CoT shall adhere to the requirements of the relevant obligations in
disclosing information relating to the Agreement and the Private Party.
Retention of Records
36.2.1
The Private Party shall maintain:
(a)
those records required to be maintained by Law in the form and
for the duration required by Law; and
(b)
those electronic records relating to the design, construction,
development, enhancement and maintenance of the Facilities
shall be retained for the duration of the Agreement in soft copy
form..
36.2.2
Financial and other records (including without limitation all information
provided in support of any Variation) shall be retained and maintained by
the Private Party in sufficient detail, in appropriate categories and
generally in such a manner to enable the Private Party to comply with its
obligations under the Agreement and where appropriate to enable the
data in such records to be entered into the Financial Model so that the
output from the Financial Model (on the basis of such data) can be directly
compared with the actual financial cash flow and performance of the
Private Party.
36.2.3
Where the Private Party wishes to dispose of any records maintained as
provided in this Clause 36 which are more than five (5) years old then the
Private Party shall notify the CoT and if, within forty (40) Business Days of
such notice, the CoT elects to receive certain of those records, then the
Private Party shall deliver up such records to the CoT in the manner and at
the location as the CoT shall reasonably specify, and the reasonable costs
of retaining those records in safe storage and delivering up the same shall
be borne by the CoT.
36.2.4
Any drawings required to be made or supplied pursuant to this Agreement
shall be of a size appropriate to show the detail to be depicted clearly
without magnifying aids. Where by prior agreement the CoT has agreed to
accept microfilm, microfiche or other storage media (which must include
secure back up facilities), drawings and other documents shall be made or
supplied in such form as has been agreed.
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36.3
36.2.5
To the extent that the Records are to be created or maintained on a
computer or other electronic storage device, the Private Party shall comply
with any reasonable request of the CoT from time to time relating to
procedures for the back-up and off-site storage for copies of such
Records.
36.2.6
Upon termination for whatever reason of the Agreement, the Private Party
shall deliver to the CoT, in such manner and at such location as the CoT
shall reasonably specify, the original of all records which are in existence
at the date of termination (or, where those Records are required by statute
to remain with the Private Party, copies thereof) or such part of such
records as the CoT may by notice to the Private Party specify. The Private
Party shall be entitled to take and retain copies of all records so delivered.
Nothing in this clause shall detract from the confidentiality undertakings
contained in this Agreement.
Inspection
36.3.1
The Private Party shall make any records required to be maintained by the
Private Party in terms of this Agreement available for inspection by or on
behalf of the CoT at all reasonable times, on receipt of reasonable notice
for access to such records.
36.3.2
The CoT shall be entitled at the time of such access to or inspection of the
records to take one (1) copy of any record at no cost to the CoT and for
that purpose to use such copying facilities as are maintained at the place
where the records are kept.
36.3.3
Without prejudice to the foregoing, the Private Party shall provide to the
CoT:
(a)
as soon as they may be available and in any event within sixty
(60) Business Days after the end of the first six (6) months of
each financial year of the Private Party which falls during the
Project Term, a copy, certified as a true copy by an officer of the
Private Party, of its unaudited interim accounts and, if
appropriate, of consolidated unaudited interim accounts of the
Private Party; and
(b)
as soon as they shall have been sent to its shareholders in order
to be laid before an annual general meeting of the Private Party
but not later than one hundred and thirty (130) Business Days
after the end of each accounting reference period of the Private
Party part or all of which falls in a Contract Year, a copy of the
Private Party’s audited accounts and if appropriate, of the
consolidated audited accounts of the Private Party, in respect of
that period, prepared in accordance with the applicable Law and
international financial reporting standards as applied within the
South African environment, consistently applied together with
copies of all related directors' and auditors' reports and all other
notices/circulars to shareholders.
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PART I: UNFORESEEABLE CONDUCT AND VARIATIONS
37 UNFORESEEABLE CONDUCT
37.1
Definition of Unforeseeable Conduct
37.1.1
"Unforeseeable Conduct" shall occur if, after the Signature Date, the CoT
or any Responsible Authority takes any action (including the introduction or
application or change in any Law; regulation, by-law or order having the
force of law) or fails to carry out its obligations as prescribed by Law but
excluding any decisions made in relation to Consents in accordance with
Laws; and
37.1.2
the principal effect of which is directly borne by –
(a)
the Project and not other projects procured and implemented as
Public Private Partnership; or
(b)
the Private Party and/or any Subcontractor and not other
persons; or
(c)
parties undertaking or financing Public Private Partnership and
not other persons; and
37.1.3
in respect of which the Private Party is not entitled to any other relief
pursuant to any other provisions of this Agreement; and
37.1.4
which was not foreseen and could not reasonably have been foreseen by
the Private Party on or before the Signature Date or, if it was foreseen, its
consequences were not reasonably foreseeable by the Private Party on or
before the Signature Date; and
37.1.5
which could not reasonably have been foreseen by any person in the
position of the Private Party on or before the Signature Date or if it could
reasonably have been foreseen, its consequences could not reasonably
have been foreseen by any person in the position of the Private Party on
or before the Signature Date; or
provided that the Unforeseeable Conduct shall be deemed not to have occurred –
(a)
where any act or omission of a Responsible Authority is in direct
response to any act or omission of the Private Party which is
illegal or contravenes Laws (other than an act or omission
rendered illegal or in contravention of Laws by virtue of such
conduct of the Responsible Authority) or in breach of
agreements to which the Private Party is a party;
(b)
if an increase in taxes of general application occurs which does
not discriminate against the Private Party or against the Private
Party and other parties undertaking Public Private Partnership;
(c)
if such conduct by a Responsible Authority is required as a
result of an event of Force Majeure and is reasonably
proportionate thereto; and
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(d)
the Private Party shall only be entitled to protection from
Unforeseeable Conduct in Clause 37.2 below in those instances
where respect of which the Private Party:(i)
is not entitled to any other relief pursuant to any other
provisions of this Agreement; or
(ii)
in the case of Unforeseeable Conduct which is not the
introduction of any change of law (by legislative steps),
regulation or by-law or an order of court:(1)
has no other legal recourse either to prevent
or redress (by restitution or otherwise), the
Unforeseeable Conduct concerned or to
recover compensation outside of this
Agreement; or
(2)
has other legal recourse to either prevent or
redress (by restitution or otherwise) the
Unforeseeable Conduct concerned and has
instituted legal action up to the court of first
instance in the local division of the High
Court and a determination has been made
against the Private Party; and
provided that the Private Party shall also be entitled to such relief whilst it
is pursuing such legal recourse as contemplated by Clause 37.1.5(d)(ii)(2)
above .
37.2
General
37.2.1
The Private Party shall take all steps necessary to ensure that the Project
Deliverables are performed in accordance with the terms of this
Agreement (including, without limitation, Clause 5.2.7 [Compliance with
applicable law]) following any Unforeseeable Conduct.
37.2.2
Should any Unforeseeable Conduct occur which materially and adversely
affects the general economic position of the Private Party, the Private
Party shall be entitled to such compensation and/or relief from the CoT as
shall place the Private Party in the same overall economic position as the
Private Party would have been in but for such Unforeseeable Conduct.
37.2.3
Should any Unforeseeable Conduct occur which materially beneficially
affects the general economic position of the Private Party, the Private
Party shall pay, upon that benefit becoming available to the Private Party
in the form of cash revenues, the value of such benefit to the CoT so that
the Private Party remains in the same overall economic position it would
have been in had the materially beneficial Unforeseeable Conduct not
occurred.
37.2.4
The Party claiming the occurrence of the Unforeseeable Conduct
(“Claiming Party”) shall give written notice to the other Party (“Receiving
Party”) containing reasonable particulars of such conduct and its likely
economic consequences to the Private Party.
37.2.5
The Receiving Party shall have 60 (sixty) days from the date of receipt of
such notice to effect a remedy for the Unforeseeable Conduct which
restores the general economic position of the Private Party to that which it
would have been in if such Unforeseeable Conduct had not occurred. If
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the Receiving Party does not effect such a remedy within such period, the
Parties shall consult within 10 (ten) Business Days after the expiration of
such period with a view to reaching a mutually satisfactory resolution of the
situation. In the event that a mutually satisfactory resolution has not been
reached within such 10 (ten) Business Day consultation period, the matter
shall be dealt with in accordance with Schedule 21 [Dispute Resolution
Procedure] provided that if the Unforeseeable Conduct affects the Works
or Services, and an amendment to this PPP Agreement can place the
Private Party in the same overall economic position as the Private Party
would have been in but for the Unforeseeable Conduct, then:-
37.2.6
37.3
(a)
the Unforeseeable Conduct shall be deemed to give rise to a
Variation and either Party may give notice to the other to this
effect and such notice shall be deemed to be a CoT’s Variation
Notice for a Variation; and
(b)
the Parties shall seek to agree terms for the implementation of
any such Deemed CoT Variation as soon as reasonably
practicable and the provisions of Schedule 15 [Variation
Procedure] shall apply thereto save that the CoT shall not be
entitled to withdraw any CoT’s Variation Notice deemed to have
been given pursuant to this Clause 37 nor fail to deliver a
Variation Confirmation and the Variation Confirmation shall be
deemed to have been issued five (5) Business Days after the
terms for implementation of the deemed CoT Variation have
been agreed or determined pursuant to Schedule 21 [Dispute
Resolution Procedure].
In so far as the Private Party is the Claiming Party, it shall use all
reasonable endeavours to minimise and mitigate the effects of any
Unforeseeable Conduct.
Private Party to Pursue Further Legal Course
In the case of Unforeseeable Conduct in respect of which Clause 37.1.5(d)(ii)(2)
applies:37.3.1
the Private Party shall at the request of the CoT (such request being
reasonable in the circumstances) be obliged to take such further legal
steps including review, where appropriate, or appeal, agreed with the CoT
(including for the avoidance of doubt the mechanism to determine the legal
costs to be incurred) to set aside or overturn the determination made
against it by the High Court;
37.3.2
the CoT shall bear the costs of the Private Party taking any steps agreed
with the CoT pursuant to Clause 37.3.1 above;
37.3.3
the CoT shall be entitled at its election to take control of and direct
proceedings referred to in Clause 37.3.1 above provided that the CoT shall
not require the Private Party to do anything other than that which is in the
normal course of conducting legal proceedings reasonably required in
order to bring the proceedings to finality, in favour of the Party instituting
such proceedings;
37.3.4
should the determination in relation to which the Private Party is taking
further steps as referred to in Clause 37.3.1 be set aside or overturned, the
Parties shall, with effect from the date of occurrence of the Unforeseeable
Conduct, each be returned to the position they would have been in but for
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the Unforeseeable Conduct, including to the extent appropriate refunding
any payments received by either Party.
38 VARIATION PROCEDURE
38.1
The provisions of Schedule 15 [Variation Procedure] shall have effect in respect of
Variations except as otherwise expressly provided in this Agreement.
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PART J: COMPENSATION EVENTS, RELIEF EVENTS AND FORCE MAJEURE
39 COMPENSATION EVENTS
39.1
Definition
For purposes of this Clause 39, a Compensation Event means any breach by the
CoT of any of its obligations under this Agreement (save for any breach that
constitutes an CoT Event of Default in respect of which the Private Party exercises
its rights under Clause 43 [CoT Events of Default]) or any breach, act or omission of
the ICT service provider (including the provision of any services provided by the ICT
service provider to the CoT) that is not caused or contributed to by the Private Party
or any Subcontractor provided that if the breach is contributed to by the Private
Party or any Subcontractor, the Private Party shall bear responsibility proportionate
to such contribution in accordance with this Clause 39.
39.2
Consequences of a Compensation Event
39.2.1
If, as a direct result of the occurrence of a Compensation Event:
(a)
the Private Party is unable to achieve Service Commencement
on or before the Scheduled Service Commencement Date;
(b)
the Private Party is unable to comply with its obligations under
this Agreement; and/or
(c)
the Private Party incurs costs or loses revenue or any third party
has instituted a claim against the Private Party or any
Subcontractor;
then the Private Party is entitled to apply for relief from its
obligations and/or claim compensation under this Agreement.
39.2.2
To obtain relief and/or claim compensation the Private Party must:
(a)
as soon as practicable, and in any event within ten (10)
Business Days after it became aware that the Compensation
Event has caused or is likely to cause delay, breach of an
obligation under this Agreement and/or the Private Party to incur
costs or lose revenue and/or a third party claim, give to the CoT
a notice of its claim for an extension of time for Service
Commencement Date, payment of compensation and/or relief
from its obligations under this Agreement;
(b)
within [twenty one (21)] Business Days of receipt by the CoT of
the notice referred to in Clause 39.2.2(a) above, give full details
of the Compensation Event and the extension of time and/or any
estimated change in project costs and/or any estimated revenue
losses claimed and/or third party claims , to the extent that the
information was or ought to be reasonably available within the
twenty one (21) Business Days, provided that where such
information is or ought to be available after the expiry of the
twenty one (21) Business Days, then the Private Party shall
provide such information five (5) Business Days after it became
available or reasonably available; and
(c)
demonstrate to the reasonable satisfaction of the CoT that:
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39.2.3
(i)
the Compensation Event was the direct cause of the
estimated change in project costs, estimated revenue
losses, the inability to comply with its obligations, any
delay in the achievement of the Scheduled Service
Commencement Date and/or third party claims; and
(ii)
the estimated change in project costs, time or revenue
lost, amounts payable in respect of any third party
claims, inability to comply with its obligations, and/or
relief from the obligations under this Agreement
claimed, could not reasonably be expected to be
mitigated or recovered by the Private Party acting in
accordance with Good Industry Practice.
In the event that the Private Party has complied with its obligations under
Clause 39.2.2 above, then:
(a)
the Scheduled Service Commencement Date shall be
postponed by such time as shall be reasonable for such a
Compensation Event, taking into account the likely effect of
delay; and
(b)
in the case of an additional cost being incurred by the Private
Party or the Private Party losing any revenue and/or the Private
Party being liable in respect of any third party claim:
(i)
at any time during the Project Term; or
(ii)
as a result of Capital Expenditure being incurred by the
Private Party at any time,
the CoT shall compensate the Private Party for the actual
estimated change in project costs, loss of revenue and/or any
loss or liability arising from any third party claim as adjusted to
reflect the actual costs reasonably incurred within fifteen (15)
Business Days of its receipt of a written demand by the Private
Party supported by all relevant information;
39.2.4
(c)
in the case of a payment of compensation for the estimated
change in project costs that does not result in Capital
Expenditure being incurred by the Private Party but which
reflects a change in the project costs, loss of revenue being
incurred by the Private Party and/or the Private Party incurring
any loss or liability arising from any third party claim after the
Service Commencement Date, the CoT shall compensate the
Private Party by placing the Private Party in a no better, no
worse position; and /or
(d)
the CoT shall give the Private Party such relief from its
obligations under this Agreement, as is reasonable for such a
Compensation Event.
In the event that information is or ought to reasonably be available to the
Private Party prior to the deadline for notification but is provided after the
dates referred to in Clause 39.2.2 above, then the Private Party shall not
be entitled to any extension of time, compensation, or relief from its
obligations under this Agreement in respect of the period for which the
information is delayed.
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39.2.5
If the Parties cannot agree on any compensation, delay incurred, or relief
from the Private Party’s obligations under this Agreement, or the CoT
disagrees that a Compensation Event has occurred (or as to its
consequences), or that the Private Party is entitled to any relief under this
Clause 39 [Compensation Events], the Parties shall resolve the matter in
accordance with Fast-track Dispute Resolution in Schedule 21 [Dispute
Resolution Procedure].
40 RELIEF EVENTS
40.1
For the purposes of this Agreement, subject to Clause 65 [Mitigation], Relief Events
mean any of the following events:
40.1.1
fire, explosion, lightning, storm, tempest, flood, bursting or overflowing of
water tanks, apparatus or pipes, ionising radiation (to the extent it does not
constitute Force Majeure), earthquake, riot, civil commotion, act of
sabotage or pressure waves caused by devices travelling at supersonic
speeds;
40.1.2
(without prejudice to the obligations of the Private Party pursuant to
Schedule 13, Part 1 [Performance Standards] with regard to standby
power failure by the CoT but only to the extent that the CoT exercises its
statutory powers as a Responsible Authority, a Responsible Authority,
utility owner, local authority or other like body to carry out their legal
obligations in relation to the Works or Services where the Private Party
had in compliance with the requirements of the CoT acting as a
Responsible Authority, or such other Responsible Authority, utility owner,
local authority or the like body made arrangements with such body in
relation to the Works or Services;
40.1.3
any accidental loss or damage to the Project Assets, the CoT Assets,
Works and/or Facilities;
40.1.4
without prejudice to any obligation of the Private Party to provide stand-by
power facilities in accordance with the CoT’s Requirements, any failure or
shortage of power, fuel or transport;
40.1.5
any blockade or embargo which does not constitute an event of Force
Majeure;
40.1.6
the discovery of any Heritage Resources that could not have been
discovered by the Private Party in complying with its obligations as
contemplated in Clause 17 (Conditions of the Site) requiring action in
accordance with Clause 19 [Heritage Resources];
40.1.7
any delay in obtaining any Consent;
40.1.8
any official or unofficial strike, lockout, go slow or other dispute in each
case generally affecting the construction, building maintenance or facilities
management industry (or a significant sector of that industry) which does
not constitute an event of Force Majeure; or
40.1.9
interference with the Works or the performance of the Project Deliverables
by persons with access to or use of or rights in respect of the Site, to the
extent that the Private Party is not deemed to or required to have satisfied
itself as to the possibility of such interference pursuant to the provisions of
Clause 17.1.2(h) above;
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40.1.10 the outbreak of any serious communicable disease, plague or epidemic at
the Facilities, which necessitates a closure of the Facilities by the Relevant
Authority.
to the extent that, in each case, such event does not arise (directly or indirectly) as
a result of any wilful act or default of the party claiming relief and/or (i) in the case of
the Private Party claiming relief, any Private Party Party and (ii) in the case of the
CoT claiming relief, any CoT Party.
40.2
Although the CoT shall continue to be entitled to make Deductions in respect of
Services that are not affected by the Relief Event, no right of termination or any
right to make any Deductions shall arise under this Agreement by reason of any
failure by a party to perform any of its obligations under this Agreement to the
extent that such failure to perform occurs because of the occurrence of a Relief
Event.
40.3
Consequences of a Relief Event
40.3.1
If and to the extent that a Relief Event –
(a)
directly causes a delay in Service Commencement; and/or
(b)
materially adversely affects the ability of the Private Party to
perform any of its obligations under this Agreement,
then the Private Party shall be entitled to apply for relief from any rights of the CoT
arising under Clause 42 [Termination for Private Party Default] and to receive the
portion of the Unitary Payment set out in paragraph 4 of Schedule 13 [Performance
Standards and Payment Mechanism].
40.3.2
To obtain relief, the Private Party must –
(a)
as soon as practicable, and in any event within ten (10)
Business Days after it became aware that the Relief Event has
caused or is likely to cause delay and/or materially adversely
affect the ability of the Private Party to perform its other
obligations, give to the CoT a notice of its claim for relief from its
obligations under this Agreement, including full details of the
nature of the Relief Event, the date of occurrence, its likely
duration and steps taken or proposed to be taken by the Private
Party to prevent or mitigate or recover the time lost or relief from
obligations under this Agreement to the extent that such
information is or ought to be reasonably available to the Private
party at the date of notification provided that where such
information is available or is reasonably available after the expiry
of ten (10) Business Days, then the Private Party shall provide
such information within five (5) Business Days after it is
available or became reasonably available;
(b)
within 20 (twenty) Business Days of receipt by the CoT of the
notice referred to in Clause (a) above, give full details of the
relief claimed to the extent that such information is or ought to
be reasonably available to the Private Party at the date of
notification, provided that where such information is available or
is reasonably becomes available after the expiry of twenty (20)
Business Days, the Private Party shall provide such information
within ten (10) Business Days after the information became
available or reasonably available; and
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(c)
40.3.3
40.3.4
demonstrate to the reasonable satisfaction of the CoT that –
(i)
the Private Party and its Subcontractors could not
have avoided such occurrence or consequences by
steps which they might reasonably be expected to
have taken and acting in accordance with Good
Industry
Practice,
without
incurring
material
expenditure that they had not planned for or would
otherwise not have incurred but for the Relief Event
occurring (“Additional Material Expenditure”);
(ii)
the Relief Event caused the delay to the Scheduled
Service Commencement Date and/or that it has
materially and adversely affected the ability of the
Private Party to perform any of its obligations under
this Agreement in respect of which it is seeking relief;
(iii)
the time lost and/or relief from the obligations under
this Agreement claimed could not reasonably be
expected to be prevented or mitigated or recovered by
the Private Party acting in accordance with Good
Industry Practice, without incurring Additional Material
Expenditure; and
(iv)
the Private Party is using reasonable endeavours to
perform its obligations under this Agreement.
In the event that the Private Party has complied with its obligations under
sub-clause 40.3.2 above, then –
(a)
the Scheduled Service Commencement Date shall be
postponed by such time as shall be reasonable to the extent that
the Relief Event has an impact on the overall Programme and
the ability on the part of the Private Party to have completed the
Works
and Relocation
by the
Scheduled
Service
Commencement Date, taking into account the actual progress of
the Works on the occurrence of the Relief Event (without
compensation for or recovering any delays caused by the
Private Party’s conduct) and the likely effect of delay; and/or
(b)
the Private Party shall be relieved from complying with its
obligations affected by the Relief Event, and the CoT shall not
be entitled to exercise its rights to terminate this Agreement
under clause 42.1 [Private Party Events of Default] on grounds
of the Private Party’s failure to perform its obligations under this
Agreement to the extent that such failure is caused by the Relief
Event; and
(c)
subject to Clause 40.3.4 below, shall give such other relief as
has been requested by the Private Party and agreed between
the Parties or decided pursuant to the Fast Track Dispute
Resolution.
Nothing in Clause 40.3.3 above shall affect any entitlement to make
Deductions during the period in which the Relief Event is subsisting in
respect of Services not affected by a Relief Event or where the right to
make a Deduction or other deductions arose prior to the happening of the
Relief Event and the ability of the Private Party to rectify the failure which
resulted in Deductions is not affected by the Relief Event.
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40.3.5
In the event that information required by sub-Clause 40.3.2 above is or
ought to reasonably be available to the Private Party prior to the deadline
for notification but is provided after the dates referred to in that Clause,
then the Private Party shall not be entitled to any relief during the period
for which the information is delayed.
40.3.6
The Private Party shall notify the CoT if at any time it receives or becomes
aware of any further information relating to the Relief Event, giving details
of that information to the extent that such information is new or renders
information previously submitted materially inaccurate or misleading.
40.3.7
In the event a Relief Event continue for a period in excess of 180 (one
hundred and eighty) days, the Parties shall meet in order to find a mutually
satisfactory solution for dealing with such prolonged Relief Event.
40.3.8
If the Parties cannot agree on the extent of the relief required, or the CoT
disagrees that a Relief Event has occurred or that the Private Party is
entitled to any extension of a Scheduled Service Commencement Date
and/or relief from other obligations under this Agreement, the Parties shall
resolve the matter in accordance with the Fast Track Dispute Resolution
Procedure set out in Schedule 21 [Dispute Resolution Procedure].
41 FORCE MAJEURE
41.1
For the purposes of this Agreement, Force Majeure means any of the following
events or circumstances occurring after the Effective Date and do not constitute a
Relief Event:
41.1.1
war, civil war, armed conflict or terrorism; or
41.1.2
nuclear contamination unless in any case the Private Party and/or any
Private Party Party is the source or cause of the contamination; or
41.1.3
chemical or biological contamination of the Works and/or the Facilities
and/or the Site; or
which directly causes either party to be unable to comply with all or a material part
of its obligations under this Agreement.
41.2
Subject to Clause 41.3 and Clause 41.4 the party claiming relief shall be relieved
from liability under this Agreement to the extent that by reason of the Force Majeure
it is not able to perform all or a material portion of its obligations under this
Agreement.
41.3
Where a party is (or claims to be) affected by an event of Force Majeure:
41.3.1
it shall take all reasonable steps to mitigate the consequences of such an
event upon the performance of its obligations under this Agreement
(including the use of alternative mechanisms or steps towards providing
the affected service for the duration of the Force Majeure), resume
performance of its obligations affected by the event of Force Majeure as
soon as practicable and use all reasonable endeavours to remedy its
failure to perform;
41.3.2
it shall only be relieved from its obligation to have the Services ready by
the Scheduled Service Commencement Date to the extent that the
relevant event of Force Majeure has an impact on the overall Programme
and the ability of the Private Party to have completed the Works and
Relocation by Scheduled Service Commencement Date having regard to
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the actual progress of the Works at the time of occurrence of the relevant
event of Force Majeure without compensation for or recovering any delays
caused by the Private Party’s conduct; and
41.3.3
it shall not be relieved from liability under this Agreement to the extent that
it is not able to perform, or has not in fact performed, its obligations under
this Agreement due to its failure (if any) to comply with its obligations
under Clause 41.3.1 above.
41.4
The party claiming relief shall serve written notice on the other party within ten (10)
Business Days of it becoming aware of the relevant event of Force Majeure. Such
initial notice shall give sufficient details to identify the particular event claimed to be
an event of Force Majeure. Notwithstanding the foregoing the Parties undertake to
employ reasonable endeavours to deliver such initial notice earlier than ten (10)
Business Days.
41.5
A subsequent written notice shall be served by the party claiming relief on the other
party within a further thirty (30) Business Days which shall contain such relevant
information relating to the failure to perform (or delay in performing) as is available,
including (without limitation) the effect of the event of Force Majeure on the ability of
the party to perform, the action being taken in accordance with Clause 41.3
[Mitigation], the date of the occurrence of the event of Force Majeure, an estimate
of the period of time required to overcome it (and/or its effects) and steps taken
and/or proposed to be taken by the party giving notice in order to prevent or
mitigate or recover the effect of such Force Majeure.
41.6
The party claiming relief shall notify the other as soon as the consequences of the
event of Force Majeure have ceased and of when performance of its affected
obligations can be resumed.
41.7
If, following the issue of any notice referred to in Clause 41.5, the party claiming
relief receives or becomes aware of any further information relating to the event of
Force Majeure (and/or any failure to perform), it shall submit such further
information to the other party as soon as reasonably possible.
41.8
Compensation
41.8.1
During the continuance of any event of Force Majeure which occurs on or
after the Practical Completion Date or the Service Commencement Date,
the Gross Monthly Instalment payable shall be calculated in accordance
with paragraph 4 of Schedule 13 [Performance Standards and Payment
Mechanism].
41.8.2
If an event of Force Majeure occurs prior to Practical Completion Date and
the Practical Completion Date does not occur as a result of the event of
Force Majeure, the Gross Monthly Instalment shall not be payable as
provided for in paragraph 4 of Schedule 13 [Performance Standards and
Payment Mechanism] whilst the event of Force Majeure or its
consequences persists.
41.8.3
Subject to Clause 46.1 [Compensation on Termination], the Private Party's
sole right to payment or otherwise in relation to the occurrence of an event
of Force Majeure shall be as provided in this Clause.
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PART K: TERMINATION
42 PRIVATE PARTY EVENTS OF DEFAULT
42.1
Private Party Events of Default
42.1.1
For the purposes of this Agreement, the Private Party Events of Default
means any of the following events or circumstances:
(a)
the occurrence of any of the following events in respect of the
Private Party, namely:
(i)
Any arrangement, compromise or composition with or
for the benefit of creditors (including any voluntary
arrangement as defined in the Insolvency Act 24 of
1936 or the Companies Act 61 of 1973) being entered
into by or in relation to the Private Party;
(ii)
The Private Party being placed under provisional or
final liquidation;
(iii)
The members’ or directors’ resolution is passed for the
liquidation or administration or judicial management of
the Private Party;
(iv)
The liquidator or a judicial manager being appointed to
manage the affairs of the Private Party;
(v)
The Private Party committing an act, that would (if
committed by a natural person) be an act of insolvency
within the meaning of the Insolvency Act, 1936;
(vi)
the Private Party ceasing to carry on business; or
(b)
the Private Party failing to complete the Works on or before the
Long Stop Date.
(c)
the Private Party committing a material breach of its obligations
under this Agreement not covered by sub-Clauses (a), (b) (d),
(e), (f), (g), (h), (i), (j);
(d)
the Private Party abandoning the Works (other than as a
consequence of a breach by the CoT of its obligations under this
Agreement);
(e)
the Private Party fails to comply with any provisions in Clause 48
[Assignment, Sub-Contracting and Changes in Control];
(f)
where CoT is entitled to terminate the Agreement in accordance
with paragraph 10.3 of Schedule 5 [Broad Based Black
Economic Empowerment];
(g)
a Private Party Event of Default under clause 25.7.3 of Schedule
13 [Performance Standards and Payment Mechanism]
(h)
the Private Party failing to pay any sum or sums due and
payable to the CoT in accordance with the terms of this
Agreement (which sums are not in dispute) or have been
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determined by dispute resolution process which, either singly or
in aggregate, exceed(s) R1 000 000,00 (one million Rand)
(Index Linked) and such failure continues for sixty (60) Business
Days from receipt by the Private Party of a notice of non
payment from the CoT.
(i)
the Private Party fails to obtain and maintain any Insurances as
required in terms of Clause 35 [Insurance] and has not
reinstated the insurance within 30 Business Days or fails to put
to put forward within 30 Business Days a reasonable
programme for remedying the Private Party’s failure to obtain
and maintain any Insurances providing for the same detail as
required in terms of Clause 42.1.3(a)(ii)(2) below or to remedy
the underlying cause or causes of such failure, acceptable to the
CoT..
(j)
A notice has been served by the Lenders for acceleration of the
amounts due under the Financing Agreements or a termination
by the Lender(s) of the Financing Agreements as a result of any
default or acceleration under the Finance Agreements.
(k)
unless provided elsewhere in this Clause 42 [Private Party
Events of Default], any breach of any provision of this
Agreement has occurred more than once and:
(l)
42.1.2
(i)
the CoT has given an initial warning notice to the
Private Party describing that breach in reasonable
detail and stating that if that breach persists or recurs
then the CoT may take further steps to terminate this
Agreement (“Initial Demand”); and
(ii)
the CoT has issued a second and final warning
demand following the persistence or recurrence of that
breach following expiry of the period of ninety (90)
days after the Initial Warning Demand (“the Final
Demand Notice”); and
(iii)
that breach persists or recurs within the period of sixty
(60) days after the Final Demand Notice.
any breach of the refinancing provisions would constitute Private
Party Event of Default;
Notification
The Private Party shall notify the CoT of the occurrence, and details, of
any Private Party Event of Default and of any event or circumstance which
it is aware is likely, with the passage of time or otherwise, to constitute or
give rise to a Private Party Event of Default, in either case promptly on the
Private Party becoming aware of its occurrence.
42.1.3
CoT’s Options
(a)
On the occurrence of a Private Party Event of Default, or within
a reasonable time after the CoT becomes aware of the same,
the CoT may subject to the provisions of the Direct Agreement:
(i)
in the case of the Private Party Event of Default
referred to in Clauses 42.1.1(a)(i), 42.1.1(a)(ii),
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42.1.1(a)(iii),
42.1.1(a)(iv),
42.1.1(b),
42.1.1(g)
42.1.1(h) and 42.1.1(i) terminate this Agreement in its
entirety by notice in writing having immediate effect;
(ii)
42.1.4
and while the same is subsisting, in the case of any
other Private Party Event of Default referred in subClauses 42.1.1(a)(v), 42.1.1(a)(vi), 42.1.1(c), 42.1.1(d),
, 42.1.1(e), , 42.1.1(f), , 42.1.1(j), 42.1.1(k), and
42.1.1(l) serve notice of failure on the Private Party
requiring the Private Party at the Private Party’s option
either:
(1)
to remedy the Private Party Event of Default
referred to in such notice of failure (if the
same is continuing), or to remedy the
underlying cause or causes of such Private
Party Event of Default within [30 (thirty)]
Business Days of such notice of failure; or
(2)
to put forward within 20 (twenty) Business
Days of delivery such notice of failure being
delivered a reasonable programme for
remedying the Private Party Event of Default
or to remedy the underlying cause or causes
of such Private Party Default, acceptable to
the CoT. The programme shall specify in
reasonable detail the manner in, and the
latest date by, which such Private Party
Event of Default is proposed to be remedied.
Remedy Provisions
(a)
Where the Private Party puts forward a programme in
accordance with Clause 42.1.3(a), the CoT shall have [20
(twenty)] Business Days from receipt of same within which to
notify the Private Party that it does not accept the programme,
failing which the CoT shall be deemed to have accepted the
programme. The CoT shall act reasonably in rejecting the
programme. Where the CoT notifies the Private party that it
does not accept the programme, the Parties shall endeavour
within the following five (5) Business Days to agree any
necessary amendments to the programme put forward. In the
absence of agreement within five (5) Business Days, the
question of whether the programme (as the same may have
been amended by agreement) will remedy the Private Party
Default in a reasonable manner and within a reasonable time
period (and, if not, what would be a reasonable programme)
may be referred by either Party for resolution in accordance with
the Fast-track Dispute Resolution provisions.
(b)
If:
(i)
the Private Party Event of Default notified in a notice of
default is not remedied before the expiry of the period
referred to in the notice; or
(ii)
where the Private Party puts forward a programme
which has been accepted by the CoT (or has been
determined to be reasonable in accordance with
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Clause 42.1.4(a)) and the Private Party fails to achieve
any element of the programme or to complete the
programme by the specified end date for the
programme (as the case may be)
then the CoT may, subject to the Lenders’ rights under the
Direct Agreement, terminate this Agreement in its entirety by
written notice to the Private Party with immediate effect;
provided that for the purposes of Clause (b)(ii)) if the Private
Party’s execution of the programme is adversely affected by the
occurrence of an event of Force Majeure or Compensation
Eventa Relief Event then, subject to the Private Party complying
with the mitigation and other requirements in this Agreement
concerning Force Majeure or Compensation Event, Relief
Events (as the case may be), the time for execution of the
programme or any relevant element of it shall be deemed to be
extended by a period equal to the delay caused by the event of
Force Majeure or Compensation Event or Relief Event (as the
case may be) which is agreed by the Parties or determined in
accordance with Fast-track Dispute Resolution.
42.1.5
CoT’s Costs
(a)
The Private Party shall reimburse the CoT with all costs incurred
by the CoT in exercising any of its rights in terms of this Clause.
The CoT should take reasonable steps to mitigate such costs.
(b)
The CoT shall not exercise, or purport to exercise, any right to
terminate this Agreement except as expressly set out in this
Agreement. The rights of the CoT (to terminate or otherwise)
under this Clause are in addition (and without prejudice) to any
other right which the CoT may have in law to claim the amount
of any direct loss or damages suffered by the CoT on account of
the acts or omissions of the Private Party (or to take any action
other than termination of this Agreement).
43 CoT EVENTS OF DEFAULT
43.1
For the purposes of this Agreement, CoT Events of Default means any of the
following events or circumstances:
43.1.1
the failure of the CoT to pay any sum or sums due and payable to the
Private Party in accordance with the terms of this Agreement (which sums
are not in dispute) which, either singly or in aggregate, exceed(s) R1 000
000 (one million South African Rand) (Index Linked) and such failure
continues for thirty (30) Business Days from receipt by the CoT of a notice
of non-payment from the Private Party;
43.1.2
an expropriation of a material part of the Project Assets, and/or shares of
the Private Party, by the CoT or other Responsible Authority with the result
that the Private Party or the CoT can no longer carry out all or a material
part of its rights and/or obligations under this Agreement; or
43.1.3
a breach by the CoT of its obligations, which:(a)
materially frustrates or renders it impossible for the Private Party
to perform its material obligations and/or exercise any of its
rights under this Agreement; and
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(b)
43.1.4
43.2
after the first failure and the CoT’s receipt of a notice from the
Private Party indicating the type and nature of the failure by the
CoT that has occurred, such a failure is repeated more than
once during the period of six (6) consecutive Contract Months
commencing on the occurrence of the first failure and/or the
repeated failure continues for ninety (90) consecutive days
following its occurrence; and
a breach by the CoT of its obligations under clause 48.1.2 [Assignment].
Private Party’s Options
43.2.1
On the occurrence of a CoT Event of Default, or within a reasonable time
after the Private Party becomes aware of the same, and while the same is
still subsisting, the Private Party must, if it wishes to trigger termination in
terms of this Agreement, serve notice on the CoT of the occurrence of
such CoT Event of Default specifying :
(a)
the type and nature of the CoT Event of Default that has
occurred, giving reasonable details; and
(b)
that the Agreement will terminate on the day falling twenty (20)
(in the case of default referred to in Clause 43.1.1 or thirty (30)
(in the case of any other CoT Events of Default) Business Days
after the date the CoT is served with the CoT Default Notice
unless:
(i)
and only in the case of default referred to in Clause
43.1.3, the CoT delivers to the Private Party a
programme for the rectification of the default which
programme is in the Private Party's reasonable opinion
capable of rectifying the default ("CoT’s Rectification
Programme") within twenty (20) Business Days; or
(ii)
the CoT rectifies the CoT Event of Default within
twenty (20) Business Days in the case of default
referred to in Clause 43.1.1 or thirty (30) Business
Days (in the case of any other CoT Event of Default) of
receipt of the CoT’s Default Notice.
43.2.2
If the CoT either rectifies the CoT Event of Default within the time period
specified in the CoT’s Default Notice, or implements the CoT's
Rectification Programme in accordance with its terms (where applicable),
the CoT’s Default Notice shall be deemed to be revoked and this
Agreement shall continue.
43.2.3
If the CoT fails to rectify the CoT Event Default within the time period
specified in the CoT's Default Notice or fails to implement any CoT's
Rectification Programme in accordance with its terms (where applicable),
then this Agreement shall terminate on the day falling thirty (30) Business
Days after the date the CoT is served with the CoT’s Default Notice or on
the failure to implement the CoT's Rectification Plan in accordance with its
terms.
43.2.4
The Private Party shall not exercise or purport to exercise any right to
terminate this Agreement (or accept any repudiation of this Agreement)
except as expressly set out in this Agreement.
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44 NON-DEFAULT TERMINATION
44.1
Force Majeure
If the parties have failed to reach agreement on any modification to this Agreement
pursuant to Clause 41 [Force Majeure] within six (6) calendar months of the date on
which the party affected serves notice on the other party in accordance with Clause
41 [Force Majeure] either party may at any time afterwards terminate this
Agreement by written notice to the other party having immediate effect provided
always that the effects of the relevant event of Force Majeure continue to prevent
either party from performing any material obligation under this Agreement. In such
an event the Termination Date shall be the date upon which the earliest of the of the
notices terminating this Agreement is received by the other Party, and the
provisions of Clause 46.1 (Compensation on Termination) shall apply.
44.2
Expiry
Subject to Clause 45, this Agreement shall terminate automatically on the expiry of
the Project Term. To avoid doubt, the Private Party shall not be entitled to any
compensation for termination of this Agreement on expiry of the Project Term.
45 EFFECT OF TERMINATION
45.1
Termination
Notwithstanding any provision of this Agreement, this Agreement shall only
terminate, after service of a notice of termination, on the Termination Date and in
accordance with the provisions of this Clause.
45.2
Continued Effect – No Waiver
Notwithstanding any breach of this Agreement by either party, and without prejudice
to any other rights which the other party may have in relation to it, the other party
may elect to continue to treat this Agreement as being in full force and effect and to
enforce its rights under this Agreement. The failure of either party to exercise any
right under this Agreement, including any right to terminate this Agreement and any
right to claim damages, shall not be deemed a waiver of such right for any
continuing or subsequent breach.
45.3
Transfer to CoT of Assets, Contracts e.t.c
45.3.1
Following the service of a notice of termination in accordance with this
Agreement for any reason, on the Termination Date:
(a)
if prior to the Service Commencement Date, in so far as any
transfer shall be necessary fully and effectively to transfer
ownership to the CoT or its nominee, the Private Party shall
transfer to the CoT or its nominee such part of the Works and/or
Facilities as shall have been constructed and:
(i)
if the CoT so elects, such items of the Plant as shall
have been procured by the Private Party shall remain
available to the CoT or its nominee for the purposes of
completing the Works, subject to payment of the
Private Party’s reasonable charges in connection
therewith, provided that all the equipment owned by
the Private Party and/or the Subcontractors shall be
returned to the Private Party upon completion of the
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Works in the state in which it was received, fair wear
and tear accepted.
(ii)
all materials shall remain available to the CoT or its
nominee for the purposes of completing the Works,
subject to payment of Subcontractor Costs;
45.3.2
the Private Party shall hand over to the CoT or its nominee, free from all
encumbrances, the Facilities (which in the case of the termination of this
Agreement in accordance with Clause 44 [Non-Default Termination Expiry] shall be in the state required in accordance with Schedule 17 [Final
Maintenance Survey]);
45.3.3
the Private Party shall:
45.3.4
(a)
transfer to the CoT or its nominee, free from any security interest
with full title all or any part of the stocks of material and other
assets, road vehicles, spare parts and other moveable property
owned by the Private Party; and
(b)
procure that the Operations Subcontractor shall transfer to the
CoT or its nominee at a fair value (determined as between a
willing vendor and willing purchaser, with any disputes as to
such fair value being determined in accordance with the Fast
Track Dispute Resolution Procedure), free from any security
interest with full title all stocks of materials and other movables
assets owned by the Operation Subcontractor or procured solely
for the provision of the Services;
to the extent required to have been prepared at that date or, required in
terms of Law the Private Party shall deliver to the CoT or its nominee (as
far as not already delivered to the CoT or its nominee) one complete set
of:
(a)
"as built drawings" showing all alterations made to the Facilities
since the commencement of operation of the Facilities;
(b)
maintenance, operation and training manuals for the Facilities;
and
(c)
the historical operating data and plans of the Facilities, its
furniture, fittings and equipment.
45.3.5
the Private Party shall use all reasonable endeavours to procure that the
benefit of all manufacturer's warranties in respect of mechanical and
electrical plant and equipment used or made available by the Private Party
under this Agreement and included in the Facilities are assigned, or
otherwise transferred, to the CoT or its nominee with full title guarantee;
and
45.3.6
the Private Party shall deliver to the CoT or its nominee the records
referred to in Clause 36 [Information and Audit Access] except where such
documents are required by Law to be retained by the Private Party or its
Subcontractors (in which case complete copies shall be delivered to the
CoT or its nominee).
45.3.7
the Private Party shall ensure that the Subcontracts or any other
agreements in terms of which the Private Party subcontracts Works and
Services will contain appropriate provisions ensuring that the CoT or its
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nominee will be in a position to exercise its rights, and the Private Party
will be in a position to comply with its obligations, under Clause 45.3.1.
45.4
Termination
This Agreement shall terminate on the Termination Date, subject to the Private
Party’s compliance with its obligation of completion of the transfer required by
Clause 45.3.1 (except in so far as any of the requirements of that Clause may be
waived by the CoT) and save as provided in Clause 45.6.1 [Continuing obligations],
all rights and obligations of the CoT and the Private Party under this Agreement
shall cease and be of no further force and effect.
45.5
Transitional Arrangements
45.5.1
45.5.2
For a period of six (6) months before and after the Expiry Date or in the
case of any earlier termination for the period from the service of notice of
termination to twelve (12) months after the Termination Date, the CoT shall
pay the Private Party all reasonable costs incurred, provided that the CoT
shall not pay such costs to the Private Party where the termination is
pursuant to Private Party Events of Default and the Private Party shall
have the following duties:
(a)
the Private Party shall co-operate fully with the CoT and any
successor providing to the CoT services in the nature of any of
the Services or any part of the Services in order to achieve a
smooth transfer of the manner in which the CoT obtains services
in the nature of the Services and to avoid or mitigate in so far as
reasonably practicable any inconvenience or any risk to the
health and safety of the employees of the CoT and members of
the public;
(b)
the Private Party shall as soon as practicable remove from the
Site all property not acquired by the CoT or its nominee pursuant
to Clause 45.3.1 (or not belonging to the CoT, its nominee or
any CoT Party) and if it has not done so within forty (40)
Business Days after any notice from the CoT requiring it to do so
the CoT or its nominee may (without being responsible for any
loss, damage, costs or expenses) remove and sell any such
property and shall hold any proceeds less all costs incurred to
the credit of the Private Party;
(c)
the Private Party shall forthwith deliver
Representative any keys to the Facilities;:
(d)
the Private Party shall as soon as practicable vacate the Site
and (without prejudice to Schedule 17 [Final Maintenance
Survey]) shall leave the Site and the Facilities in a safe, clean
and orderly condition.
to
the
CoT’s
If the CoT wishes to conduct a tender process with a view to entering into
an agreement for the provision of services (which may or may not be the
same as, or similar to, the Services or any of them) following the expiry or
earlier termination of this Agreement, the Private Party shall co-operate
with the CoT fully in such competition process, subject to payment of the
Private Party’s reasonable costs, including (without limitation) by:
(a)
providing any information which the CoT may reasonably require
to conduct such tender excluding information which is
commercially sensitive to the Private Party and the Private Party
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Party (and, for the purpose of this sub-Clause commercially
sensitive shall mean information which would if disclosed to a
competitor of the Private Party or Subcontractor give that
competitor a competitive advantage over the Private Party or the
Private Party Party and thereby prejudice the business of the
Private Party and the Private Party Party); and
(b)
45.6
assisting the CoT by providing all (or any) participants in such
competition process with access on reasonable notice and at
reasonable times to the Site and the Facilities.
Continuing Obligations
45.6.1
Save as otherwise expressly provided in this Agreement:
(a)
termination of this Agreement shall be without prejudice to any
accrued rights and obligations under this Agreement as at the
date of termination; and
(b)
termination of this Agreement shall not affect the continuing
rights and obligations of the Private Party and the CoT under
Clauses 10 [Warranties], 11 [Indemnities and Liability], 12
[Limits on Liability], 16 [Nature of Land Interests], 34 [Payment],
35 [Insurance] (to the extent of claims or proceeds in existence
at the time of termination), 36 [Information and Audit Access], 41
[Force Majeure], 44 [Non-Default Termination], 45.3 [Effects of
Termination – Transfer to CoT Assets, Contracts e.t.c 45.5.1
45.5.2
[Transitional Arrangements], 46 [Compensation on
Termination], 49 [Intellectual Property], 50 [Confidentiality], 51
[Taxation], 52 [Corrupt Gifts and Payments], 53 [Records and
Reports], 54 [Dispute Resolution Procedure], 55 [Notices], 65
[Mitigation] and Clause 66 [Governing Law and Jurisdiction] or
under any other provision of this Agreement which is expressed
to survive termination or which is required to give effect to such
termination or the consequences of such termination.
46 COMPENSATION ON TERMINATION
46.1
If this Agreement is terminated pursuant to Clause 44 [Non Default Termination],
then the CoT shall pay compensation to the Private Party in accordance with Part D
of Schedule 16 [Compensation on Termination].
46.2
If this Agreement is terminated pursuant to Clause 42 [the Private Party Events of
Default], then the CoT shall pay compensation to the Private Party in accordance
with Part C of Schedule 16 [Compensation on Termination].
46.3
If this Agreement is terminated pursuant to Clause 43 [CoT Events of Default], then
the CoT shall pay compensation to the Private Party in accordance with Part B of
Schedule 16 [Compensation on Termination].
46.4
If this Agreement is terminated pursuant to Clause 52.3.1 [Corrupt Gifts and
Payments], then the CoT shall pay compensation on to the Private Party in
accordance with Part E of Schedule 16 [Compensation on Termination].
46.5
Full and Final Settlement
46.5.1
Subject to the provisions of paragraph 5.3.2 of Schedule 13 [Performance
Standards and Payment Mechanism]:
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(a)
any compensation paid pursuant to this Clause shall be in full
and final settlement of any claim, demand and/or proceedings of
the Private Party in relation to any termination of this Agreement
and/or any Project Document (and the circumstances leading to
such termination) and the Private Party shall be excluded from
all other rights and remedies in respect of any such termination;
and
(b)
the compensation payable (if any) pursuant to any of Clauses
46.1 to 46.4 above shall be the sole remedy of the Private Party
and the Private Party pursuant to termination of this Agreement
shall not have any other right or remedy in respect of such
termination.
47 FINAL MAINTENANCE SURVEY
47.1
The provisions of Schedule 17 [Final Maintenance Survey] shall apply to the
handback of the Facilities to the CoT on expiry of this Agreement.
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PART L: MISCELLANEOUS
48 ASSIGNMENT, SUB-CONTRACTING AND CHANGES IN CONTROL
48.1
48.2
48.3
Assignment
48.1.1
This Agreement and any Project Document to which both the CoT and the
Private Party are parties shall be binding on, and shall endure to the
benefit of, them and their respective successors-in-title and permitted
transferees and assigns.
48.1.2
Other than for the purposes of the creation, transfer or enforcement of
security pursuant to the Financing Agreements, none of the Parties shall
be entitled to assign the benefit or transfer the burden of any of this
Agreement or Project Documents (including any benefit, interest or right
which arises under or out of this Agreement including any present, future
or contingent interest or right to any sums or damages payable by any
Party under or in connection with this Agreement) without the prior written
consent of the CoT in the case of a request for assignment by the Private
Party, and of the Private Party in connection with a request for assignment
by the CoT (such approvals not to be unreasonably withheld or delayed).
48.1.3
At the time of any assignment or transfer of this Agreement, the relevant
party shall transfer and/or assign (in the same manner) the benefit and
burden of each of the Project Documents to which it is a party and the
Lenders Direct Agreement.
Sub-Contractors
48.2.1
The Private Party shall not terminate or agree to the termination of the
engagement and/or employment of (or the replacement of) the
Construction Subcontractor or any Operations Subcontractor under the
Project Documents or any person who has entered into Collateral
Agreement without, in each case, the prior written consent of the CoT
(such consent not to be unreasonably withheld or delayed). To avoid
doubt, (i) any failure to comply with Clause 48.2.3 shall be a reasonable
ground for withholding consent; and (ii) consent shall, without prejudice to
the other provisions of Clause 48.2.1, not be required in respect of the
appointment of any party approved by the CoT or appointed in accordance
with the provisions of Schedule [5] [Broad Based Black Economic
Empowerment].
48.2.2
If any of the contract referred to in Clause 48.2.1 shall at any time lapse,
terminate or otherwise cease to be in full force and effect (whether by
reason of expiry or otherwise) whilst the relevant component of the Project
Deliverable is still outstanding, with the effect that such person shall cease
to act in relation to the Project, the Private Party shall forthwith appoint a
replacement (subject to compliance with Clause 48.2.1).
48.2.3
The Private Party shall procure that any replacement for any person
referred to in Clause 48.2.1 shall enter into a contract upon the same or
substantially similar terms as the person so replaced and shall also enter
into a collateral agreement on the same or substantially the same terms as
the Collateral Agreement entered into by the person so replaced.
Changes in Control
48.3.1
Subject to Clauses 48.2.1 and 48.3.3 and to the requirements of Schedule
5 [Broad Based Black Economic Empowerment], and Schedule 20 [Direct
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Agreement] prior to the expiry of a period of twelve (12) months
commencing on the Final Completion Date, no Change in Control in any or
all of the shares in the Private Party shall be permitted without the prior
written approval of the CoT which consent shall be given within twenty (20)
Business Days.
48.3.2
Subject to Clause 48.3.3, the conditions and restrictions in Clause 48.3.1
shall not apply to a Change in Control in any shares in the Private Party
held by any Third Party Shareholder.
48.3.3
Subject to the provisions of Schedule 5 [Broad Based Black Economic
Empowerment], no Change in Control (at any time) in any or all of the
shares in the Private Party (or in any of the shareholders of the Private
Party which are controlled by Black Persons) shall be permitted without the
prior written approval, which approval shall be granted within twenty (20)
Business Days, of the CoT where the change in control will result in the
Private Party breaching Schedule 5 [Broad Based Black Economic
Empowerment] provided that should such twenty (20) Business Days
expire without CoT approval then no Change in Control shall be effected.
49 INTELLECTUAL PROPERTY
49.1
Project Data
49.1.1
The Private Party shall make available to the CoT free of charge, and
hereby irrevocably licences the CoT to use, all Project Data that might
reasonably be required by the CoT and the Private Party shall ensure that
it obtains all necessary licences, permissions and consents to ensure that
it can make the Project Data available to the CoT on these terms, for the
purposes of:
(a)
the CoT carrying out its duties and/or exercising its rights under
this Agreement;
(b)
following termination of this Agreement, the design or
construction of the Facilities, the operation, maintenance or
improvement of the Facilities and/or the carrying out of
operations the same as, or similar to, the Project Deliverables in
respect of the Facilities;
(together, the "Approved Purposes"), and in this Clause "use" shall
include the acts of copying, modifying, adapting and translating the
material in question and/or incorporating them with other materials for the
purposes of the Works and the operating and maintaining the Facilities
and the term "the right to use" shall be construed accordingly.
49.2
Intellectual Property of the Private Party
49.2.1
On termination of this Agreement, the Private Party
(a)
shall procure transfer to the CoT of ownership of the Intellectual
Property Rights (if any) (excluding Licensed Intellectual Property
Rights), which are or become vested in the Private Party or in
the Construction Subcontractor or the Operations Subcontractor
or which are created or acquired after the Effective Date for
purposes of implementing the obligations of the Private Party in
terms of this Agreement;
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(b)
shall, in the case of Licensed Intellectual Property Rights use all
reasonable endeavours to procure the grant of irrevocable, nonexclusive and transferable (but only to any assignee or
transferee of any rights or benefits under this Agreement upon
or at any time following termination of this Agreement)) licence
on commercial terms and conditions which are the same (or
reasonably similar) to the terms upon which same were licensed
to the Private Party prior to termination.
in the case of 49.2.1(b) above, solely for the Approved Purposes.
49.2.2
49.2.3
The Private Party shall be liable for, shall indemnify and shall hold the CoT
harmless against, any and all claims, demands, proceedings, losses
liabilities, damage, costs (including without limitation, legal costs) and/or
expenses the CoT may suffer or incur in the event:
(a)
that the CoT’s rights under the licence granted provided under
Clause 49.1 are at anytime determined by a court of law to be
invalid, ineffective or impaired in any way;
(b)
of any claim, threat, demand or proceedings by any third party,
for infringement of the Licensed Intellectual Property Rights
arising out of Clause 49.1; and/or
(c)
that performance by the Private Party (including the
Subcontractors and agents) of its responsibilities under,
pursuant to, or arising from this Agreement and/or the provision
or operation of the Facilities leads to, or would lead to, the
infringement of any Licensed Intellectual Property Right.
The Indemnity referred to in Clause 49.2.2 shall not apply:
(a)
to any infringement resulting from the CoT’s failure to comply
with specific written instructions which instructions reasonably
required the CoT to:
(i)
regulate the use of Intellectual Property Rights by the
CoT in terms of the rights and/or interest provided
under Clause 49.2.1 (which was not reasonably
foreseen by the Private Party at the time of granting
rights and interest in Intellectual Property Rights by the
Private Party); or
(ii)
to prevent any of the instances referred to in Clause
49.2.2(a) to 49.2.2(c) above; or
(b)
to any infringement resulting from any infringing material or
information provided by the CoT to the Private Party to the
extent that the Private Party reasonably relied on such materials
or information in the course of the performance of this
Agreement and has complied with the requirements of Clause
13 [Background Information];
(c)
to any claims, demands, proceedings, losses, liabilities,
damage, costs (including, without limitation, legal costs) and/or
expenses the CoT may suffer or incur arising from errors,
omissions or defects in the materials or information provided by
the CoT to the extent that such errors, omissions or defects are
as a result of negligence or wilful misconduct of the CoT or its
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employees subject to the Private Party having complied with the
requirements of Clause 13 [Background Information];
49.3
49.2.4
The Private Party shall, at its own cost, provide such reasonable cooperation as the CoT requests in the event of any claims, demands,
proceedings under Clause 49.2.3(c) and shall assist the CoT in resolving
queries concerning the ownership and licensing of Intellectual Property
Rights relating to this Agreement and the provision of the Facilities.
49.2.5
The Private Party shall procure that the Construction Subcontractor and
the Operations Subcontractor and their subcontractors shall be liable for,
shall indemnify and shall hold the CoT harmless in the same manner and
to the same extent as provided for in Clauses 49.2.2 to 49.2.4
Intellectual Property of the CoT
49.3.1
All intellectual property rights whatsoever, whether capable of registration
or not, regarding the CoT’s name, trademarks, logos, image and all other
intellectual property matters relating to the CoT, including its name,
trademarks, logos and/or image shall be the sole property of the CoT.
49.3.2
Subject to existing rights and obligations and Clause 49.3.3, the CoT shall,
on prior written application by the Private Party, grant a non-exclusive
revocable right and license to the Private Party with a right to sub-license
to the Subcontractors, to use the CoT’s trademarks and logos for a period
not to exceed the remainder of the Project Term to the extent required by
the Private Party and/or the Subcontractors for the purposes of the Project
Deliverables.
49.3.3
In order to establish and maintain standards of quality and propriety
acceptable to the CoT, in the event that the Private Party desires to use
the CoT’s trademarks or logos in any way, the Private Party shall first
submit the concept or a sample of the proposed use to the CoT for
approval, which shall be in its sole and absolute discretion. The CoT shall
use reasonable endeavours to advise the Private Party of its approval or
disapproval of the concept or sample within 20 (twenty) Business Days of
its receipt of the concept or sample. If the CoT approves the concept or
sample, the Private Party shall not depart therefrom in any respect without
the CoT’s further prior written approval.
49.3.4
If at any time the CoT revokes its approval for the specified use of any
trademark or logo, the Private Party shall forthwith discontinue all use of
such trademark or logo pursuant to Clause 49.3.5 below, and shall remove
from public sale or distribution any previously approved product in respect
of which the CoT has revoked its approval. The costs incurred by the
Private Party as a result of such revocation shall be borne by the Private
Party, if the grounds for the revocation include any ground described in
Clause 49.3.5.
49.3.5
The CoT may revoke its approval in respect of the use of any trademark or
logo immediately upon 5 (five) Business Days written notice to the Private
Party if the Private Party, any Subcontractor or any of its or its
Subcontractors’ officers, directors or employees commits any crime or
otherwise engages in conduct which violates any Law, orengages in any
conduct that in the CoT’s reasonable opinion, materially prejudices the
reputation and public goodwill of the CoT.
49.3.6
The Private Party acknowledges that the name(s) of the CoT (the
'Protected Names") are associated with and peculiar to the CoT and are
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the intellectual property of the CoT. Consequently, the Private Party
agrees that the sole and exclusive ownership of the Protected Names shall
vest in the CoT.
49.3.7
In circumstances where the Private Party utilises any of the Protected
Names, either on its own or in combination or association with any other
name, it does so only in terms of this Agreement and with the prior
approval of the CoT. On termination or expiry of this Agreement, the
Private Party shall not be entitled to operate or conduct any business using
any of the Protected Names either on its own or in combination or
association with any other name.
49.3.8
Within 60 (sixty) Business Days after the end of the Project Term and
where the Private Party has operated a company utilising any of the
Protected Names with the permission of the CoT, the Private Party shall
either –
49.3.9
(a)
de-register the company bearing any of the Protected Names; or
(b)
change the name to a name not substantially similar to any of
the Protected Names.
The naming of the Private Party’s business operation shall be undertaken
in consultation with the CoT and subject to the CoT’s approval. In
circumstances where the name chosen by the Private Party and approved
by the CoT is not part of the CoT’s intellectual property, then the rights of
the CoT contemplated in Clause 49.3.8 shall not be applicable and the
intellectual property shall be the sole property of the Private Party.
50 CONFIDENTIALITY
50.1
Confidential Information
50.1.1
In this Agreement, "Confidential Information" means all information relating
to the other party which is supplied by or on behalf of the other party
(whether before or after the date of this Agreement), either in writing, orally
or in any other form, directly or indirectly from or pursuant to discussions
with the other party or which is obtained through observations made by the
receiving party. "Confidential Information" also includes all analyses,
compilations, studies and other documents whether prepared by or on
behalf of a party, which contain or otherwise reflect or are derived from
such information.
50.1.2
Each party shall hold in confidence any Confidential Information and shall
also use reasonable endeavours to prevent its employees, agents and
Subcontractors from making any disclosure to any person of any
Confidential Information, provided that the provisions of this Clause shall
not restrict either party from passing such information to its professional
advisers, to the extent necessary, to enable it to perform (or to cause to be
performed) or to enforce its rights or obligations under this Agreement, and
provided further that the Private Party may, subject to obtaining
appropriate confidentiality restrictions:
(a)
pass to the Lenders such documents and other information as
are reasonably required by the Lenders in connection with the
raising of finance for the Project Deliverables or which the
Private Party is obliged to supply by the terms of the Financing
Agreements; and
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(b)
50.2
Exceptions
50.2.1
50.3
pass to the Subcontractors documents and other information
which are necessary for the Private Party's performance of this
Agreement.
The obligation to maintain the confidentiality of the Confidential Information
does not apply to Confidential Information:
(a)
which the other party confirms in writing is not required to be
treated as Confidential Information;
(b)
which is or comes into the public domain otherwise than through
any disclosure prohibited by this Agreement;
(c)
which is disclosed as part of any attempt to resolve a dispute in
accordance with Clause 54 [Dispute Resolution Procedure] or
Fast Track Dispute Resolution;
(d)
to the extent any person is required to disclose such Confidential
Information by Law or rules of any stock exchange or any
regulatory or government authority (but only to that extent);
(e)
that is already lawfully in the possession of the receiving party
prior to its disclosure by the disclosing party;
(f)
that the CoT may require for the purpose of the Project
Deliverables or for the operation, maintenance or improvement
of the Facilities in the event of, or following, termination of this
Agreement without in any way detracting from the provisions of
Clause 49 (Intellectual Property);
(g)
disclosed by the CoT to any Responsible Authority as required
by law; or
(h)
to the extent required to be disclosed pursuant to Clause 36.1.2
[Information and Audit Access] provided that such parties bind
themselves to the relevant confidentiality undertakings.
Announcements
Unless otherwise required by any Law or any regulatory or governmental authority
(but only to that extent), neither party shall make or permit or procure to be made
any public announcement or disclosure (whether for publication in the press, the
radio, television screen or any other medium) of any Confidential Information or in
the case of the Private Party of its (or any Private Party Party's) interest in the
Project or, in any such case, any matters relating thereto, without the prior written
consent of the other party (which shall not be unreasonably withheld or delayed).
51 TAXATION
51.1
VAT
51.1.1
All amounts stated to be payable by either party under this Agreement
shall be exclusive of any VAT properly chargeable on any amount.
51.1.2
Each party shall pay to the other party any VAT properly chargeable on
any supply made to it under this Agreement provided that it shall first have
received from the other party a valid tax invoice in respect of that supply
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which complies with the requirements of the Value Added Tax Act No 89
of 1991.
52 CORRUPT GIFTS AND PAYMENTS4
52.1
Prohibition on Corruption
52.1.1
The term "Corrupt Act" means:
(a)
(i)
for doing or not doing (or for having done or not having
done) any act in relation to the obtaining or
performance of this Agreement or the Project or any
other agreement with the CoT or any other organ of
state; or
(ii)
for showing or not showing favour or disfavour to any
person in relation to this Agreement, the Project or any
other agreement with the CoT or any other organ of
state;
(b)
entering into this Agreement or any other agreement with the
CoT or any other organ of state in connection with which
commission has been paid or has been agreed to be paid by the
Private Party or on its behalf, or to its knowledge, unless before
the relevant agreement is entered into particulars of any such
commission and of the terms and conditions of any such
agreement for the payment of such commission have been
disclosed in writing to the CoT;
(c)
admitting to or being convicted of any offence:
(d)
52.2
offering, giving or agreeing to give to the CoT or any other organ
of state or to any person employed by or on behalf of the CoT or
any other organ of state any gift or consideration of any kind as
an inducement or reward:
(i)
under the any Law from time to time dealing with
bribery, corruption or extortion;
(ii)
under any Law creating offences in respect of
fraudulent acts; or
(iii)
at common law, in respect of fraudulent acts in relation
to this Agreement, the Project or any other contract
with the CoT or any other organ of state; or
defrauding or attempting to defraud or conspiring to defraud the
CoT or any other organ of state.
Warranty
The Private Party warrants that in entering into this Agreement it has not committed
any Corrupt Act.
52.3
Remedies
4
The wording in and impact of this clause is still subject to consideration between the Parties in light of pending
enquiries investigations by the Competition Commission pertaining to collusive tendering in construction industry.
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52.3.1
If the Private Party or any Private Party Party, or any of the Lenders (or
anyone employed by or acting on behalf of them) commits any Corrupt
Act, then the CoT shall be entitled to act in accordance with Clauses (a) to
(g) below:
(a)
if the Corrupt Act is committed by the Private Party, any
Shareholder, any director of the Private Party, any director of the
Shareholder, or by an employee of the Private Party or of any
Shareholder acting under the authority of or with the knowledge
of the board of directors of the Private Party or such
Shareholder, as the case may be, then in any such case, the
CoT may terminate the Agreement with immediate effect by
giving written notice to the Private Party, unless within sixty (60)
days of the Private Party’s receipt of such notice, such corrupt
Shareholder’s involvement in the Project is terminated and the
Equity held by such corrupt Shareholder is either acquired by
the remaining Shareholders or a third party in accordance with
the Shareholders Agreement;
(b)
if the Corrupt Act is committed by an employee of the Private
Party or of any Shareholder acting of his or her own accord, then
in any such case, the CoT may give written notice to the Private
Party of termination and the Agreement will terminate, unless
within twenty (20) Business Days of receipt of such notice the
Private Party terminates the employee's involvement in the
Project and (if necessary) procures the performance of the
relevant part of the Project Deliverables previously performed by
him or her is, within a reasonable time thereafter, performed by
another person;
(c)
if the Corrupt Act is committed by a Subcontractor, director of a
Subcontractor or by an employee of a Subcontractor acting
under the authority or with the knowledge of a director of that
Subcontractor, then in any such case, the CoT may give written
notice to the Private Party of termination and the Agreement will
terminate, unless within twenty (20) Business Days of receipt of
such notice the Private Party terminates the relevant
Subcontract and procures the performance of the relevant part
of the Project Deliverables, within a reasonable time thereafter,
by another person, where relevant, in accordance with Clause
48 [Assignment, Sub-contracting and Change in Control];
(d)
if the Corrupt Act is committed by an employee of a
Subcontractor acting of his or her own accord, then the CoT may
give notice to the Private Party of termination and the
Agreement will terminate, unless within twenty (20) Business
Days of receipt of such notice the Private Party procures the
termination of the employee's involvement in the Project, and (if
necessary) procures the performance of the relevant part of the
Project Deliverables previously performed by that employee by
another person;
(e)
if the Corrupt Act is committed by a Lender, a director of a
Lender or any employee of a Lender acting under the authority
or with the knowledge of a director of that Lender, then in any
such case the CoT may give written notice to the Private Party
of termination and the Agreement will terminate, unless within 90
(ninety) days of its receipt of such notice the Private Party
procures the termination of such Lender’s involvement in the
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Project (in any capacity whatsoever including, without limitation,
as Lender under the Financing Agreements) and provides the
CoT with satisfactory proof that such Lender’s entire
participations in the Debt Amount and in any undrawn financial
commitments under the Financing Agreements have been
assumed by another financier (including any one or more of the
remaining Lenders);
52.3.2
52.4
(f)
if the Corrupt Act is committed by any employee of a Lender
acting of his or her own accord, then the CoT may give written
notice to the Private Party of termination and this Agreement will
terminate, unless within 5 (five) Business Days of the Private
Party’s receipt of such notice, that employee’s involvement in
the Project is terminated;
(g)
if the Corrupt Act is committed in relation to this Project by any
other person not specified in Clauses (a) to (f)] above, but
involved in the Project as a subcontractor or supplier to any
Subcontract or to the Private Party, then the CoT may give
notice to the Private Party of termination and the Agreement will
terminate unless, within twenty (20) Business Days, the Private
Party procures the termination of such person's involvement in
the Project, and of the appointment of their employer (where
such person is not employed by Private Party or the
Subcontractor) and (if necessary) procures the performance of
the relevant part of the Project Deliverables by another person
within a reasonable time thereafter; and
(h)
any notice of termination under this Clause shall specify:
(i)
the nature of the Corrupt Act;
(ii)
the identity of the party or parties who the CoT
believes has committed the Corrupt Act; and
(iii)
the date on which the Agreement will terminate in
accordance with the applicable provisions of this
Clause.
Without prejudice to its other rights or remedies under this Clause, the
CoT shall be entitled to recover from the Private Party, the greater of :
(a)
the amount or value of any such gift, consideration or
commission, which is the subject of the Corrupt Act; and
(b)
any other loss sustained in consequence of any breach of this
Clause.
Permitted Payments
Nothing contained in this Clause shall prevent the Private Party from paying any
proper commission or bonus to its employees within the agreed terms of their
employment.
52.5
Notification
The Private Party shall notify the CoT of the occurrence (and details) of any Corrupt
Act promptly on the Private Party becoming aware of its occurrence.
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52.6
Replacement of Subcontractor
Where the Private Party is required to replace any Subcontractor pursuant to this
Clause, the provisions of Clause 48 [Assignment, Subcontracting and Changes in
Control] shall be construed accordingly.
53 NOT USED
54 DISPUTE RESOLUTION PROCEDURE
Except where expressly provided otherwise in this Agreement, any dispute arising
out of or in connection with this Agreement shall be resolved in accordance with the
procedure set out in Schedule 21 [Dispute Resolution Procedure].
55 NOTICES
55.1
All notices and any communication whatsoever (including without limitation, any
approval, consent, demand, query, request, all certificates, notices or instructions)
by either party in terms of this Agreement or relating to it shall be given in writing
and shall be sent by registered post, or delivered by hand, or by facsimile
transmission to the recipient party at its relevant address and/or facsimile number
and/or email address set out below:
55.1.1
If to the Private Party:
Physical address:
Postal address:
Facsimile number:
marked for the attention of :
55.1.2
If to the CoT:
Physical address:
Postal address:
Facsimile number:
marked for the attention of :
55.2
Where any information or documentation is to be provided or submitted to the CoT's
Representative or the Private Party Representative it shall be provided or submitted
by sending the same by hand, by facsimile transmission, leaving the same at:
55.2.1
If to the Private Party's Representative ;.
Physical address:
Postal address:
Facsimile number:
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marked for the attention of :
55.2.2
If to the CoT's Representative;
Physical address:
Postal address:
Facsimile number:
marked for the attention of :
55.3
Either party to this Agreement (and either Representative) may by written notice to
the other party, change its nominated address, facsimile number or the designated
person for whose attention those notices or other communication are to be given,
by prior notice to the other party.
55.4
Any notice or other communication given by any party to the other party which:
55.4.1
is delivered by hand to the addressee at its specified address, shall be
rebuttably presumed to have been received by the addressee at the time
of delivery; or
55.4.2
is transmitted by facsimile to the addressee at its specified facsimile
number, shall be rebuttably presumed to have been received by the
addressee on the date of transmission as indicated on the sender’s
facsimile transmission report; or
55.4.3
is sent by registered post to the addressee, shall be rebuttably top have
been received by the addressee on the 14th [fourteenth] day after posting;
provided in each case that if the time of such deemed service is either after 4.00
p.m. on a Business Day or on a day other than a Business Day service shall be
deemed to occur instead at 10.00 a.m. on the next following Business Day.
55.5
The previous provisions of this Clause shall not invalidate any notice or other
communication actually given and received otherwise than as described in those
provisions.
55.6
The parties choose their respective physical addresses in this Clause 55 as their
respective domicilia citandi et executandi at which all documents relating to any
legal proceedings to which they are a party may be served. If that address is
changed to another address which is not a physical address in the Republic of
South Africa, then the original address shall remain the domicilium citandi et
executandi of the relevant Party until it nominates a new physical address within the
Republic of South Africa in writing to be its new domicilium citandi et executandi.
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56 AMENDMENTS
No provision of this Agreement (including, without limitation, the provisions of this
Clause 56) may be amended, substituted or otherwise varied, and no provision may
be added to or incorporated in this Agreement, except (in any such case) by an
agreement in writing signed by the duly authorised representatives of the Parties.
57 WAIVER
Any failure, relaxation, forbearance, indulgence or delay (together "indulgence") of
any party in exercising any right shall not be construed as a waiver of the right and
shall not affect the ability of that party subsequently to exercise that right or to
pursue any remedy, nor shall any indulgence constitute a waiver of any other right
(whether against that party or any other person).
58 NO AGENCY
58.1
Nothing in this Agreement shall be construed as creating a partnership or as a
contract of employment between the CoT and the Private Party.
58.2
Save as expressly provided otherwise in this Agreement, the Private Party shall not
be, or be deemed to be, an agent of the CoT and the Private Party shall not hold
itself out as having authority or power to bind the CoT in any way.
58.3
Without limitation to its actual knowledge, the Private Party shall for all purposes of
this Agreement, be deemed to have such knowledge in respect of the Project as is
held (or ought reasonably to be held) by any Private Party Party.
59 ENTIRE AGREEMENT
59.1
Except where expressly provided otherwise in this Agreement, this Agreement
constitutes the entire agreement between the parties in connection with its subject
matter and supersedes all prior representations, communications, negotiations and
understandings concerning the subject matter of this Agreement.
59.2
Each of the parties acknowledge that:
59.2.1
it does not enter into this Agreement on the basis of and does not rely, and
has not relied, upon any statement or representation (whether negligent or
innocent) or warranty or other provision (in any case whether oral, written,
express or implied) made or agreed to by any person (whether a party to
this Agreement or not) except those expressly contained in or referred to in
this Agreement and the only remedy or remedies available in respect of
any misrepresentation or untrue statement made to it shall be any remedy
available under this Agreement; and
59.2.2
this Clause shall not apply to any statement, representation or warranty
made fraudulently, or to any provision of this Agreement which was
induced by fraud, for which the remedies available shall be all those
available under the law governing this Agreement.
60 CONFLICTS OF AGREEMENTS
To the extent of any inconsistency between the provisions of this Agreement and those of the
Schedules, the following order of priority shall (save where the contrary is expressly provided)
prevail:
60.1
Schedule 20 [Direct Agreement];
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60.2
this Agreement (excluding schedules to the Agreement) and Schedule 1 [Definitions
and Interpretation];
60.3
Schedule 2 [Completion Documents], Schedule 4 [Emergency Reaction Plan],
Schedule 5 [Broad Based Black Economic Empowerment], Schedule 8 [Review
Procedure], Schedule 9 [Collateral Agreements], Schedule 13 [Performance
Standards and Payment Mechanism], Schedule 14 [Insurance Policies], Schedule
15 [Variation Procedure], Schedule 16 [Compensation on Termination]; Schedule
17 [Final Maintenance Survey]; Schedule 19 [Refinancing], Schedule 21 [Dispute
Resolution Procedure], Schedule 22 [Certificates], Schedule 23 [The Site],
Schedule 26 [Section 37(2) Principles], Schedule 27 [Relocation Principles];
60.4
Schedule 6 Part 1 [Output Specifications – CoT’s Requirements]
60.5
Schedule 6 Part 2 [Output Specification – Private Party’s Proposal]and
60.6
all other Schedules.
61 SEVERABILITY
61.1
If any provision of this Agreement (in this Clause the “Invalid Provision”) is agreed
between the Parties or held by a court of competent jurisdiction to be illegal,
unenforceable or invalid then (without prejudice to the rights of any Party if such
illegality, unenforceability or invalidity arises in consequence of breach by any other
Party):
61.1.1
the legality, validity and enforceability of the remaining provisions shall not
be affected;
61.1.2
the Parties shall agree as soon as reasonably practicable one or more
provisions which will (in this Clause the “New Provision”) in lieu of the
Invalid Provision such as will, so far as is possible under applicable law,
have the same commercial effect as the Invalid Provision would have had
if it had not been illegal, unenforceable or invalid; and
61.1.3
if the New Provision is not agreed within one month after agreement
between the parties or ruling that the Invalid Provision is illegal,
unenforceable or invalid, the matter in dispute shall be referred to the
Disputes Resolution Procedure.
62 COUNTERPARTS
This Agreement may be executed in any number of identical counterparts, all of
which when taken together shall constitute one agreement. Any single counterpart
or a set of counterparts taken together which, in either case, executed by all the
parties shall constitute a full original of this Agreement for all purposes.
63 COSTS AND EXPENSES
Each party shall be responsible for paying its own costs and expenses incurred in
connection with the negotiation, preparation and execution of this Agreement.
64 NO PRIVITY
It is agreed that this Agreement is not intended to, and does not, give to any person
who is not a party to this Agreement any rights to enforce any provisions contained
in this Agreement except for any person to whom the benefit of this Agreement is
assigned or transferred in accordance with Clause 48.
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65 MITIGATION
65.1
Each of the CoT and the Private Party shall at all times take all reasonable steps to
minimise and mitigate any loss for which the relevant party is entitled to bring a
claim against the other party pursuant to this Agreement.
66 GOVERNING LAW AND JURISDICTION
66.1
This Agreement shall be considered as a contract made in the Republic of South
Africa and shall be subject to the laws of South Africa.
66.2
Subject to the provisions of the Dispute Resolution Procedure, both parties agree
that the High Court of South Africa shall have exclusive jurisdiction to hear and
decide any application action, suit, proceeding or dispute in connection with this
Agreement and irrevocably submit to the jurisdiction of the High Court of South
Africa.
67 FURTHER ASSURANCE
Each party shall do all things and execute all further documents necessary to give
full effect to this Agreement.
68 WAIVER OF SOVEREIGN IMMUNITY
In relation only to the execution by it of this Agreement and the exercise and
performance by it of its rights and obligations under this Agreement, the CoT
unconditionally and irrevocably waives any sovereign immunity for itself from any
suit, or other legal process and agrees that the execution by it of this Agreement
and the exercise and performance by it of its rights and obligations under this
Agreement constitute private and commercial acts done and performed for private
and commercial purposes subject to the provisions of the Municipal Finance
Management Act, 3 of 2000
69 NO BETTER NO WORSE POSITION
69.1
Any reference in this Agreement to “no better and no worse” or to leaving the
Private Party in a “no better and no worse position” or to place the Private Party
“in the same overall economic position” shall be construed by reference to the
Private Party’s:
69.1.1
rights, duties and liabilities discharged and/or costs and expenses incurred
under or arising pursuant to performance of this Agreement and any other
Project Document to which it is a party;
69.1.2
ability to perform its obligations hereunder and exercise its rights
hereunder and under any other Project Document to which it is a party;
and
69.1.3
any amount which the Private Party will recover under any of the
Insurances (or would have recovered if it had complied with the
requirements of this Agreement or of any policy of Insurances required
under this Agreement) which amount, to avoid doubt, shall not include the
amount of any excess or deductibles or any amount above the maximum
insured amount applicable to such insurance policy,
so as to ensure that:
69.1.4
the Private Party is left in a position which is no better and no worse than it
would have been had the event, which warrants the application of this
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Clause in accordance with this Agreement, (“Relevant Event”) not
occurred; and
69.2
69.3
69.1.5
the ability of the Private Party to meet Schedule 13, Part 1 [Performance
Standards and Payment Mechanism] or to exercise its rights or to perform
its obligations under this Agreement is not adversely affected or improved
as a consequence of the Relevant Event referred to in Clause 69.1.4
above;
69.1.6
Whilst indebtedness remains outstanding under the Financing Agreements
none of the Debt Service Cover Ratio (as defined in the Common Terms
Agreement), Loan Life Cover Ratio (as defined in the Common Terms
Agreement) or Project Cover Life Ratio(as defined in the Common Terms
Agreement) for the remainder of the Project Term are adversely affected;
and
69.1.7
the Equity IRR as well as the timing of Distributions for the remainder of
the Project Term is not adversely affected.
In order to determine the no better and no worse position of the Private Party as a
result of the Relevant Event the following shall apply:
69.2.1
the Financial Model shall be updated to reflect the actual factors and
performance of the Project Deliverables immediately prior to the Relevant
Event and adjust the forward looking macro-economic assumptions to the
Expiry Date, assuming the Relevant Event not having occurred and the
Private Party not having enjoyed any additional benefit, suffered any
additional cost or other loss or been in any way prejudiced or
compensated in consequence of the Relevant Event (“Pre-Event Financial
Model”);
69.2.2
after determining and agreeing the Pre-Event Financial Model shall also
be adjusted to incorporate the occurrence of the Relevant Event and its
consequences (but without allowance for any compensation in
consequence thereof) (“Post-Event Financial Model”); and
69.2.3
the Private Party shall for purposes of Clause 69.1 without prejudice to
Clause 69.1.5) be placed in a position that is no better and no worse than
the position it would have been in had the Relevant Event not occurred, as
evidenced by the Pre-Event Financial Model.
If there is a dispute as to the assumptions underpinning the Pre-Event Financial
Model and/or Post Event Financial Model, or any matter referred to in this Clause
69, then it may be referred by either Party to Dispute Resolution Procedure in
accordance with Schedule 21 [Dispute Resolution Procedure].
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IN WITNESS whereof this Agreement has been executed and is delivered on the date first
above written
SIGNED at ________________________________ on the ______ day of __________ 2014
__________________________________________________________________________
in his/her capacity as the City Manager of
the City of Tshwane Metropolitan Municipality
on behalf of the CITY OF TSHWANE METROPOLITAN MUNICIPALITY
SIGNED at ________________________________ on the ______ day of __________ 2014
__________________________________________________________________________
on behalf of the PRIVATE PARTY
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