THE SOUTH AFRICAN NATIONAL
ROADS AGENCY SOC LIMITED
CONTRACT NRA N.003-040-2015/1
CONTRACT TITLE: MOOI RIVER TRAFFIC CONTROL CENTRE OPERATIONS
AGREEMENT
DATE: DECEMBER 2015
AGREEMENT DOCUMENT
VOLUME
BOOK 1. OF 2
CHIEF EXECUTIVE OFFICER
SOUTH AFRICAN NATIONAL ROADS AGENCY SOC LIMITED
48 TAMBOTIE AVENUE
VAL DE GRACE
PRETORIA, 0184
NAME OF TENDERER:
CONDITIONS OF CONTRACT
NRA N.003-040-2015/1: MOOI RIVER TRAFFIC CONTROL CENTRE OPERATIONS
1
TABLE OF CONTENTS
1.DEFINITIONS AND TERMS
2.BASIS AND SCOPE
3.APPOINTMENT OF OPERATOR
4.TERM OF AGREEMENT
5.CONTRACT DOCUMENTS
5.1Documents Constituting the Agreement
5.2Priority of Documents
5.3Ambiguity or Discrepancy within or between Documents
6.PERFORMANCE BONDS
7.EXTENT OF OPERATOR’S LIABILITY
7.1Liability for Damages
7.2Penalties
8.THE ENGINEER......
9.ESTABLISHMENT
10.REPLACEMENT, UPGRADING, PROVISION AND DISPOSAL OF ASSETS DURING THE CONTRACT PERIOD
11.OWNERSHIP, RISK AND MAINTENANCE
12.NO PHOTOGRAPHY OR ADVERTISING
13.CONFIDENTIALITY
14.STANDARD OF PERFORMANCE
15.PROVISION OF ACCESS
16.DEFECTS RECTIFICATION PERIOD
17.NO RELIEF OF OPERATOR’S OBLIGATIONS
18.CONTRACT MEETINGS
19.OPERATOR’S REPRESENTATIONS AND WARRANTIES
20.INFORMATION PROVIDED BY THE NRA OR THE ENGINEER
21.ENVIRONMENT
22.EMPOWERMENT
23.THIRD PARTY RIGHTS / WAY-LEAVES
24.COMPLIANCE WITH LAWS AND REGULATIONS
24.1General
24.2Obtaining of Permits, Approvals and/or Licences
24.3Indemnity
25.FEES, TAXES AND DUTIES
26.INDEMNITY
27.DEFENCE AGAINST INDEMNIFIED CLAIMS AND ACTIONS
28.COPYRIGHT AND LICENSES
28.1Copyright
29.INSURANCE
29.1NRA’s Insurance
29.2Operator’s Insurance
29.3Requirements as to the Operator’s insurance
29.4NRA’s Right to Insure
29.5Notification of Claims
29.6Obligation to restore the Site
30.MEASUREMENT AND PAYMENT
31.VARIATIONS
32.PROVISIONAL SUMS
33.MODIFICATION TO THE OPERATIONS AND MAINTENANCE AND/OR THE TRAFFIC CONTROL CENTRE AND/OR ROADS
34.SUB-CONTRACTORS
35.PERSONNEL REQUIREMENTS AND TRAINING
35.5Training of the Operator’s Personnel
36.TAKE OVER OF SITE, ESTABLISHMENT ACTIVITIES AND PROGRAMMES
37.DEFECTIVE AND/OR OUTSTANDING ASSETS AT TAKE-OVER
38.HANDOVER OF UPGRADED AND NEW ASSETS DURING THE CONTRACT
PERIOD
39.HANDOVER AT THE END OF THE CONTRACT PERIOD
40.REMOVAL OF ESTABLISHMENT
40.5Failure to Remove Establishment
41.FORCE MAJEURE
41.1Force Majeure Event Defined
41.2Notice of Force Majeure
41.3Suspension of Obligations in the event of Force Majeure
41.4Continuation of Works
41.5Insured Events of Force Majeure
41.6Consequences of Force Majeure
42.CHANGES IN LEGISLATION
43.TERMINATION
43.1Operator Default
43.2Notification of Operator Default
43.3Remedy of Operator Default and Termination
43.5NRA’s Right to undertake the Works and Indemnity by the Operator
43.6NRA’s Rights Unaffected following Termination
43.7Operator’s Right to Terminate
43.8Exclusive Remedy
44.PAYMENT FOLLOWING TERMINATION
45.EFFECT OF TERMINATION
45.1Handover of Works together with all Documents
46.LEGAL EFFECT OF TERMINATION
47.RESOLUTION OF DISPUTES
47.7Obligations during Arbitration
48.GOVERNING LAW
49.NO CESSION OR ASSIGNMENT BY THE OPERATOR
50.SET-OFF
51.NOTICES AND COMMUNICATIONS
51.1Giving of Notices
51.2Address for Notices
51.4Receipt of Notices
52.WHOLE AGREEMENT, NO AMENDMENT
1
ANNEXURES
ANNEXURE 1:PROJECT SPECIFICATION: NRA N.003-040-2015/1 MOOI RIVER TRAFFIC CONTROL CENTRE OPERATIONS
(this document)
ANNEXURE 2:MEASUREMENT AND PAYMENT
1
This Agreement is made the ……….……..day of ………….………..……...20____ between:
(1)SOUTH AFRICAN NATIONAL ROADS AGENCY (SOC) LIMITED (Registration No: 98/09584/06) of 58 Van Eck Place, Mkondeni, Pietermaritzburg(hereinafter referred to as the “NRA”); and
(2)______
(Registration No: ______) of
______
(hereinafter referred to as the “Operator”),
hereinafter referred to individually as the Party and collectively as the Parties.
PREAMBLE
WHEREAS the Parties intend to enter into a contract with regard to the operations and maintenance of the Mooi Traffic Control Centre;
NOW THEREFORE the Parties agree as follows:
1.DEFINITIONS AND TERMS
1.1The headings of the Clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any Clause hereof. Unless a contrary intention clearly appears-
1.2wordsconnoting:
1.2.1any one gender includes the other two genders;
1.2.2the singular includes the plural and vice versa; and
1.2.3natural persons include juristic persons (corporate or unincorporated) and the state and vice versa.
1.3The following capitalised terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely-
1.3.1“Agreement” shall mean this agreement, including all Annexures and appendices hereto, and any written supplemental agreements which may be validly concluded between the Parties pursuant thereto;
1.3.2“Applicable Law”shall mean all laws, regulations and standards, codes of practice, decrees, directives or other requirements in theRepublic of South Africa legally binding on any of the Parties and the conditions and requirements of any permit, licence or approval given by any Relevant Authority and/or any utilities;
1.3.3“Assets” shall mean all assets, including Fixed Assets, Semi-Fixed Assets and Movable Assets and for the avoidance of doubt, shall include all Equipment and the Traffic Control Centre;
1.3.4“Availability” shall mean when expressed as a fraction for any specific period, the time in normal operation (total time minus Downtime) divided by total time;
1.3.5“Average Annual Daily
Truck Traffic”shall mean the total Heavy Vehicle traffic for a calendar year divided by the number of days in such year;
1.3.6“Business Day”shall mean any day which is not a Saturday, Sunday or statutory holiday in the Republic of South Africa;
1.3.7“Commencement Date” shall mean such day as mutually agreed between the Parties which shall be, not later than eight (8) weeks days after Establishment Date;
1.3.8“Contract Period”shall mean the period reckoned from the Commencement Date up to and including the Contract Termination Date;
1.3.9“Contract Termination Date” shall mean the date upon which this Agreement terminates either as a result of the expiry of the Term or as a result of the operation of any of the other termination or cancellation provisions of this Agreement;
1.3.10“Damages” shall mean any loss and/or Damages which-
1.3.10.1have been incurred by a Party as a result of the breach by the other Party of a provision of this Agreement; and
1.3.10.2have been quantified and have been awarded in terms of an order of court or an arbitrators award under this Agreement;
1.3.11“Effective Date”means the Signature Date;
1.3.12“Efficiency” shall mean the degree to which service objectives are met;
1.3.13“Equipment” shall mean any equipment which is provided by the NRA or the Operator for use by the Operator in complying with its obligations under the Agreement;
1.3.14“Establishment Activities”means those activities listed in Part B of Annexure 1, which the Operator shall undertake during the Establishment Period;
1.3.15“Establishment Date”shall meannot later than three (3) weeks before the Site Handover Date;
1.3.16“Establishment Period” shall mean the period commencing on the Establishment Date and terminating on the Commencement Date and shall not be longer than eight (8) weeks;
1.3.17“Expiration” shall mean the expiry of this Agreement after the period stated in Clause 4.1 hereof;
1.3.18“Expiry Date” shall mean the date on which this Agreement expires pursuant to the provisions of Clause 4.1 hereof;
1.3.19“Fixed Assets”shall have the meaning ascribed to it in Annexure 1 of the Agreement;
1.3.20“Good Working Condition”shall mean the condition where an Asset substantially performs the functions for which it was intended;
1.3.21“Heavy Vehicle” shall have the meaning assigned thereto in the National Road Traffic Act, Act No 93 of 1996;
1.3.22“Implementation Date”shall mean such date as agreed between the Parties which shall be not later than eight (8) weeks after the Commencement Date;
1.3.23“Implementation Period”means the eight (8) weeks period commencing on the Commencement Date and expiring on Inception Date;
1.3.24“Movable Assets”shall have the meaning ascribed to it in Annexure 1 of the Agreement;
1.3.25“NRA” shall mean the South African National Roads Agency (SOC) Limited established pursuant to Section 2 of the Act, or its legal successors in title and/or its lawful assigns;
1.3.26“Operations and Maintenance
Fee (O&M Fee)”shall mean the monthly Operations and Maintenance Fee which-
1.3.26.1the NRA shall pay to the Operator for and in respect of the management, operations and maintenance of the Traffic Control Centre in terms of this Agreement and the performance of the Works; and
1.3.26.2shall be determined from time to time during this Agreement in terms of Clause 30 hereof;
1.3.27“Operations and Maintenance
(O&M)” shall mean all activities which may be necessary for the proper operations and maintenance of the Traffic Control Centre and all Assets (including Equipment) in accordance with the requirements of this Agreement;
1.3.28“Operations and Maintenance
Procedure Manuals”shall mean the manuals to be submitted by the Operator pursuant to the provisions of Annexure 1 and this Agreement;
1.3.29“Operator” shall mean the Person appointed by the NRA and which has concluded this Agreement with the NRA to perform the Works specified herein;
1.3.30“Penalties” shall mean such penalties which are capable of being imposed upon the Operator pursuant to Clause 7, and have been quantified in terms of Annexures 1 and 2 hereto;
1.3.31“Performance Area”shall mean any one of the 5 (five) the performance areas relating to the Operator’s obligations hereunder, as fully set out in Annexure 1 hereto;
1.3.32“Performance Benchmark”shall mean the benchmark that the NRA shall use to evaluate the Operator’s performance in each respective Performance Area, as described in Annexure 1 hereto;
1.3.33“Performance Bond”shall mean the on-demand bond to be delivered by the Operator to the NRA in accordance with the provisions of Clause 6 hereof;
1.3.34“Person” shall mean any individual, partnership, corporation, company, businessorganisation, trust, governmental agency or other entity;
1.3.35“Prime Rate”shall mean the variable interest rate calculated and charged from time to time by the NRA’s bankers to the NRA;
1.3.36“Relevant Authority”shall mean any ministry, department, national, provincial or local agency, authority or body of the Government and any other public authority, body, entity or Person having jurisdiction over the Assets, the Site, the Works, the Operator, or the NRA (as the case may be), under the laws of the Republic of South Africa;
1.3.37“Resources” shall mean labour, tools, test Equipment, consumable materials, spare parts, Operations and Maintenance Procedure Manuals, drawings and other such documentation, specialist expertise and all other inputs tothe system by the Operator which are necessary to achieve the Operations and Maintenance objectives set out herein;
1.3.38“Responsible Person” shall mean the person or persons appointed by the Operator to act on behalf of the Operator;
1.3.39“Semi-Fixed Assets”shall have the meaning ascribed to it in Annexure 1 of the Agreement;
1.3.40“Signature Date”shall mean the last date of signature of this Agreement;
1.3.41“Site” means the site of the Traffic Control Centre situated on Provincial Route R103, within Mooi River South Africa, as further detailed in the locality plan forming part of Annexure 1 of the Agreement;
1.3.42“Site Handover Date”shall mean the third Business Day after receipt by the Operator of a certificate ("Handover Certificate") issued and signed by the NRA that the Assets have been built on and/or installed on the Site and have been completed and commissioned in terms of Clauses 2.1.1 and 9 of this Agreement;
1.3.43“Software” shall mean any software referred to in Annexure 1 hereto;
1.3.44“State” shall mean the Government of the Republic of South Africa;
1.3.45“Term” shall mean the term of this Agreement, being the period referred to in Clause 4;
1.3.46“Termination”shall mean the termination of this Agreement pursuant to the provisions of Clause 43 hereof;
1.3.47“Termination Date”shall mean the date when this Agreement terminates pursuant to the provisions of Clause 43 hereof;
1.3.48“Traffic Control Centre (TCC)”shall mean the Traffic Control Centre as described in Annexure 1;
1.3.49“VAT” shall mean Value Added Tax levied in terms of the Value Added TaxAct, Act No 89 of 1991 as amended from time to time during this Agreement;
1.3.50“Works” shall mean the O&M of the Traffic Control Centre in accordance with the provisions of this Agreement;
1.4any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation as at the Signature Date, and as amended or substituted from time to time;
1.5if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any party then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;
1.6where any term is defined within a particular Clause other than this Clause1, that term shall bear the meaning ascribed to it in that Clause wherever it is used in this Agreement;
1.7in its interpretation, the contra proferentum rule of construction shall not apply (this agreement being the product of negotiations between the Parties) nor shall this agreement be construed in favour of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of the agreement;
1.8where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day. If the last day of such number so calculated falls on a day which is not a Business Day, the last day shall be deemed to be the next succeeding day which is a Business Day;
1.9any reference to days (other than a reference to Business Days), months or years shall be a reference to calendar days, months or years, as the case may be;
1.10the language of this Agreement is English. All correspondence, drawings, reports, certificates, specifications, notices or other communications, which are to be given, submitted or prepared hereunder shall be in English;
1.11in every event in which a Party is entitled in terms of this Agreement to approve a proposed action by the other Party, such approval shall not be unreasonably withheld or delayed; and
1.12wherever in this Agreement, provision is made for the giving or issue of any notice, consent, approval, certificate or determination by any Person, the same shall, unless otherwise specified in this Agreement, be in writing and the words “notify”, “consent”, “approve”, “certify” or “determine” shall be construed accordingly.
2.BASIS AND SCOPE
2.1It is the basis of this Agreement that-
2.1.1the NRA shall at its cost and risk establish and commission the Traffic Control Centre on the Site. The NRA shall cause at its cost to be constructed and/or installed and commissioned, upon the Site, the Assets in accordance with the provisions of this Agreement;
2.1.2the Operator shall, on behalf of the NRA, undertake and perform the Works in terms of this Agreement. The Operator shall operate, manage and maintain the Traffic Control Centre for the duration of the Contract Period and to enable it to do so, the Operator shall, during the Establishment Period and with the approval of the NRA, acquire at the NRA’s cost and deliver to the Site the Movable Assets; and
2.1.3such Movable Assets, together with all other Assets on the Site, shall be utilised and maintained by the Operator throughout the Contract Period for purposes of and in connection with the undertaking and performance of the Works in terms hereof.
2.2In consideration for and/or as a consequence of the Operator undertaking and performing the Works in terms hereof-
2.2.1the NRA shall be obliged to make payment to the Operator of the O&M Fee;
2.2.2the NRA may become obliged to make payment to the Operator of a performance related Bonus or Bonuses; and
2.2.3the NRA may become entitled to impose the performance related Penalties or recover Damages from the Operator.
3.APPOINTMENT OF OPERATOR
3.1The NRA hereby appoints the Operator to undertake and perform the Works and the Operator hereby undertakes to perform the Works in accordance with the provisions of this Agreement.
3.2The Operator shall be responsible for the management of its own personnel undertaking the Works at the Traffic Control Centre.
3.3The Operator shall use its best endeavours to develop in close co-operation between itself and the traffic officers delegated to execute law enforcement at the Traffic Control Centre pursuant to the provisions of the Agreement between the NRA and the Mpofana Local Authority.
3.4The Operator shall give effect to its obligations under Clause 3.3, by developing the Operations and Maintenance Procedure Manuals referred to in Annexure 1 of the Agreement in accordance with the provisions of the Agreement between the NRA and the Mpofana Local Authority. Such manuals shall be developed in consultation with the Mpofana Local Authority. The manuals shall specify the types and format of data to be collected and reports to be submitted by the traffic officers to the Operator, as well as the operations procedures and management protocols referred to in Annexure 1 of the Agreement. The Operations and Maintenance Procedure Manuals shall record performance benchmarks by which the NRA may assess the traffic officers’ performance.
3.5The Operator shall deliver by the Commencement Date to the NRA first draft copies of the manuals referred to in this Clause 3. Final copies of the manuals shall be delivered by the Operator to the NRA by the Inception Date.
3.6The Parties acknowledge that the Agreement between the NRA and the Mpofana Local Authority may be terminated or suspended, in which case the NRA may enter into similar agreements with relevant departments of the local authority having jurisdiction over the Traffic Control Centre. The Operator agrees to the replacement or substitution of the Mpofana Local Authority on the basis set out in this Clause 3.6 and undertakes to the extent necessary to amend and/or replace the Operations and Maintenance Procedure Manuals existing at that time.
4.TERM OF AGREEMENT
4.1The Contract Period shall commence on the Commencement Date and, unless extended by the NRA pursuant to Clause 4.2, shall expire on the fifth anniversary of the Commencement Date ("Initial Expiry Date").
4.2The NRA may extend the Term of the Agreement at any time prior to the expiry thereof, by giving written notice of such extension to the Operator.
4.3The Agreement shall, unless agreed otherwise, be extended on the same terms and conditions of the Agreement.
5.CONTRACT DOCUMENTS
5.1Documents Constituting the Agreement
The following documents together constitute this Agreement for the Operations and Maintenance of the Traffic Control Centre: