CSCM Sla cscm

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Performance Service Level Agreement – Professional Services – Technical Services: Project Management

SERVICE LEVEL AGREEMENT

PROFESSIONAL SERVICES – PERFORMANCE – CIVIL

& BUILDING WORKS

BETEWEEN

SENQU MUNICIPALITY

(Hereafter referred to as SM)

AND

(Hereafter referred to as the “Consultant”)

DATE:_________________

PROJECT NAME

NOTICE #: _________________________

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1. PURPOSE

The purpose of this Service Level Agreement is to enforce certain guidelines that the appointed consultant

must consider and enforce throughout the project lifespan and responsibility period as defined within this

agreement, and performance measurement and penalties of the consultant, as stipulated within this

agreement. It is accepted that the Consultant is aware and understands all terms and abbreviations used

within this SLA.

2. GENERAL

The following general terms and conditions have been laid down for all construction or similar

appointments.

1. Where such special conditions or procedures are in conflict with this SLA, the said special conditions or procedures shall apply but must be incorporated into the standard SLA (SAICE).

2. These SLA terms and conditions, may at SM’s sole discretion, be amended or supplemented and the service provider notified in writing within 5 working days thereof. The service provider will have a further 5 working days to accept/respond to such changes.

3. For purpose of this agreement the word “appointment” will be considered as the contract for professional services as required and tendered for by the Consultant, to the SM, in order to achieve construction completion in terms of objectives, budget, quality and quantity as per the successful construction bidders contract.

4. Reference to the GCC will include any other sector related contracts in common use. (eg JBCC) and terms identified within this contract related to the GCC will be replaced with the terms of the sector contract but conditions and penalties will remain the same.

5. Contract length will be from date of appointment to one calendar month after Final Completion is achieved, unless otherwise dictated in terms of this agreement or law.

6. The point of contact within the municipality will be the PMU manager, unless otherwise stated by the SM, in writing.

7. Principle Agent/ Team shall be considered to refer to Consultant, both being considered the same in terms of this Service Level Agreement.

3. CORRESPONDENCE

All signed written correspondence, including faxes and e-mail received from the Consultant or the SM will be regarded as binding to the party and company whom he / she represents. Certain critical correspondences will be required on official letterhead from both parties.

4. REFERENCE DOCUMENTS

Where the need arises to obtain reference/specification documents, the Consultant will do so from the relevant authority, at own cost.

5. PERIOD OF RESPONSIBILITY

The period within which the total responsibility/accountability of the Consultants appointment is to remain valid and binding on the Consultant will be from the date of the signed letter of acceptance for the tender submitted, returned to SM, until 31 calendar days after the issue of the Final Completion Certificate date.

The consultant will remain liable for design and construction for any further period as identified by the industry or law. This applies to the Works that the Consultant was appointed for in terms of the appointment. The SM retains the right to extend such period of contract accountability if there is any doubt on the quality of the Works or any associated matter, for any reasonable amount of time, at no cost to the SM, until the matter has been dealt with fully and in all respects, in terms of this agreement. Consultants will be required to attend any meeting considered as reasonable, requested by the SM, even after Final Completion, should any information be required for clarification.

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6. PRICE

a) Tendered prices are fixed and considered as the total cost (Including disbursements etc.) and only subject to adjustments in accordance with the actual increases resulting from the change of rendering costs for the execution of the contract upon prior approval of Contingency expenditure or a Variation Order, which may not exceed 20% of the total contract / tender value (Direct or Indirect cost). Any such adjustment will be done on a pro-rata scale, calculated in percentage, and reduced to figures (Including VAT). Any additional Works MUST be approved, in writing, by the SM BEFORE instruction is given to the contractor to continue with such works.

b) The contract construction or management cost may not be exceeded by the Consultant without the express written permission of the SM. Should this occur without prior written permission, the Consultant will be held accountable for such costs.

c) In the event of a contractor being removed from site in terms of the GCC or any other legislation, the

Consultant may not retender the project without the express written permission of the SM. The

Consultant must ensure that the construction site is safe and usable to the public (where applicable)

at all times, until the SM has, in writing, issued further instructions. The Consultant will, within 10

working days, submit a revised construction cost to complete the project.

7. DESIGN

Dependent on the urgency or nature of the Works, the Consultant is to consider the following in the design for the Works, without eroding quality or circumventing legislation:-

1. Labor intensive construction methods (LIC) using local labour/SMME’s

2. Sustainability of the project

3. Possible risks

4. Project objectives

5. Use of local suppliers where possible

6. Use of local registered contractors on the SM database as sub-contractors in order to develop

accession in the CIDB rating.

7. Possible alternatives

8. Price (Value for money)

9. Contingencies and criteria for use thereof.

10. Future maintenance and operational cost

11. Environmental and other legislative requirements

12. Time frames

13. Cash flow predictions

14. CIDB considerations

15. Community considerations in terms of buy in (ISD)

16. Client liaison and design approval

17. Establish and confirm that the Contractor has sufficient resources and capacity to complete the

project, aside from the CIDB rating.

8. DOCUMENTATION

The Consultant will ensure that advertisements are placed in at least 2 registered newspapers for contracts

under R 10 M and 3 registered newspapers if over R 10 M.

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Minimum advertisement periods will be 21 days for values under R 10 m and 31 days for any value over R

10 M.

Copies of the original newspaper advertisements must be given to the PMU Manager within 5 working days

of their placement/publication.

The Consultant will ensure a compulsory tender site meeting on all projects, unless agreed otherwise with

the SM.

The Consultant will ensure that accurate minutes and attendance registers are kept of all official meetings

and distributed within 5 working days to all relevant parties as will be agreed upon at the first official site

meeting.

The Consultant (or representative) will be present at the official opening of tender documents (SM SCM

processes) and will sign for receipt of the documents (Annexure E), after processed, before removal from

the SM premises, for appraisal purposes.

The Consultant will submit a tender evaluation report within 15 working days of official opening of the

tender opening date, unless agreed otherwise with the PMU Manager. The capacity and the ability of the

contractor must be assessed to ensure ability to complete the contract. This must include a similar report

on all sub-contractors / SMEEs, including a background check on all parties for all responsive tenders.

All SM Procurement policy and regulations must be strictly adhered to at all times.

Construction Joint Venture agreements must be proven, verified and must be VAT registered in the name

of the JV (No payment will be made until the JV is VAT registered). Sub-contractor (Annexure F)

agreements and labour contracts (Annexure G) must be in place.

Upon receipt of a Commencement Letter, the Consultant shall, in writing, inform the successful contractor

and copy to the PMU Manager, to go ahead with the Works, within one working day of being instructed, in

writing, from the SM.

The Consultant will ensure that Site Establishment by the contractor takes place within 14 working days of

appointment letter to the contractor unless otherwise agreed with the PMU Manager.

The Consultant will ensure the following, but not limited to, is incorporated into the tender documentation:-

1. LIC – where possible

2. Risk will remain with the contractor until issue of the Final Completion Certificate and acceptance by

SM, in writing as stated in this SLA.

3. Training – accredited/non-accredited

4. SMME’s & Local labour (Use, contracts, responsibilities etc)

5. Verified Bill of quantities

6. Latest GCC/JBCC (The contractor must be aware of non-performance and grounds for blacklisting

at National Treasury)

7. Special Conditions of Contract – where required and in terms of this SLA.

8. Detailed description of the Works and specifications.

9. Legislative requirements

10. Appropriate penalty clauses (To be agreed upon by the SM – 0.0085 %/day based on total

tendered-Ex Vat)

11. Expected project outcomes

12. Expected quality & quantity

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13. Insurance, guarantees & sureties before site occupation.

14. Contract contingencies allocation (5% Max - To be approved by the PMU Manager)

15. The contractor will be expected to be on site no later than 14 working days of appointment date

16. Provision must be made for the payment of PSC seating allowances, by the contractor.

17. A provisional sum of R 5 000 must be set aside for a project handover ceremony.

18. The employment of a Community Liaison Officer (CLO) must be accommodated.

19. See “PAYMENT FOR SERVICES”

20. 10% Retention on total contract price.

21. Penalties (Calendar day based).

22. If a JV is acceptable in terms of the construction contract, a clause must be inserted holding the

major JV holder liable in terms of the contract performance and financial impacts.

23. Ensure all workers are registered for UIF in terms of the Unemployment Insurance Act, 63 of 2001

and as amended.

24. Ensure workers are covered by IOD.

The Consultant understands that “contingencies” are only a part of the construction value, if approved by

the PMU Manager in writing, and the Consultant may not claim further expense on “contingencies” as in

terms of this SLA the total value of the project is the tendered value, including “contingencies”, with

exception of approved Variation Orders.

See “ PRICE”

The Consultant will ensure that the all surety, insurance, guarantee, acceptance letter, and relevant

documents are received from the appointed contractor within 14 working days of official appointment date

of the contractor, unless otherwise approved by the PMU Manager, in writing. The Consultant will ensure

the validity of such surety and insurance. Original documents will be kept by the Senqu Municipality.

The Consultant will ensure that the construction Tender Document is signed and witnessed by all parties

within 5 working days of the contractor’s official appointment date.

9. The original signed copy will be kept by the Senqu Municipality.

The consultant will ensure that the following documentation is supplied to the municipality, in hard and soft

copy, within 15 working days of practical completion of the project, which is described as” completion of all

practical works, including snag list and no further financial obligations to the SM other than final retention

payment in terms of the contract”. The SM reserves the right to retain payment of the Consultant, without

additional cost to the SM, until all required information as stipulated below is received.

Final “as build” plans

Final Bill of quantities

Confirmation letter with regard to no further financial implications on the part of the SM, with

exception of final retention (5%) and the date payable of the retention.

Close out report on the project, as defined in “CONSTRUCTION” S 22.

A Structural Safety Certificate is required by the SM, issued by a competent registered structural

engineer, where public buildings and bridges are part of or are the full scope of the project. The

Structural Safety Certificate may be for an individual construction or a combination of constructions,

providing each is identified individually on the certificate. Exemption is given for pipe/culvert

crossings shorter than 25 meters or if in writing from the SM.

Project File (hard & soft copies) with the above documentation but inclusive of the following:-

1. Official correspondence from the Consultant to the Contractor and SM (Include emails)

2. Official correspondence from the Contractor and client (include emails)

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3. Any other relative correspondence (outside service providers etc)

4. PSC attendance registers/minutes

5. Site meeting attendance registers/minutes

6. Any other official meeting attendance registers/minutes

7. Variation orders approved

8. Changes in scope of works (where applicable) and reasons

9. Summary of financials including VO’s and/or contingencies and VAT

10. Performance summary in terms of cost against production (value for money)

11. Summary of Sub Contractor / SMEE performance & payment.

10. GROUNDS FOR BLACKLISTING

Failure to comply with any of the below will result in no final payment and possible National Treasury “black listing”. [Details may be obtained from the Municipal Finance Management Act: Circular 43 of 2007]

Committing an irregular practice/s as defined above.

Failing to achieve a specified goal as is stipulated in the tender document in terms of Regulation 15(1) of the Preferential Procurement Regulations.

Committing of any offence as set out in section 12 and 13 of the Prevention and Combating of Corrupt Activities Act 12 of 2004.

Persistent non–performance.

A conviction in respect of a related criminal activity, by a competent court of law, for which the sentence is a term of imprisonment of not less than six (6) months.

Extract from MFMA Circular 43 of 2007: The Preferential Procurement Regulations prescribe requirements for developing and applying evaluation criteria and goals to achieve required outcomes. Should the municipality or entity discover that the bidder obtained preference on a fraudulent basis or has failed to attain specified goals during the performance of the contract then certain remedies are available to and need to be considered by the municipality or entity. Regulation 15 of the Preferential Procurement Regulations reads as follows: “15 (1) An organ of state must, upon detecting that a preference in terms of the Act and these regulations has been obtained on a fraudulent basis, or any specified goals are not attained in the performance of the contract, act against the person awarded the contract. (2) An organ of state may, in addition to any other remedy it may have against the person contemplated in sub-regulation (1) –

recover all costs, losses or damage it has incurred or suffered as a result of that person’s conduct;

cancel the contract and claim any damages which it has suffered as a result of having to make less favourable arrangements due to such cancellation;

impose a financial penalty more severe than the theoretical financial preference associated with the claim which was made in the tender; and

restrict the contractor, its shareholders and directors from obtaining business from any organ of state for a period not exceeding 10 years.”

See attached circular : (Annexure H)

11. CONSTRUCTION

The Consultant is to ensure the following (but not limited to) are implemented timeously and in accordance

with legislation and required industry specifications, in order to achieve the highest quality for resources

available:

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1. The contractor supplies and enforces the required safety measures and requirements (including

Health & Safety Plan)

2. The Consultant will ensure that the contractor takes all reasonable measures prescribed by law

and/or any other reasonable measures necessary for the prevention of accidents during

construction at Senqu Municipality premises or any other areas affected by the construction.

3. The Consultant must ensure that the contractor has adequate insurance cover at all times, and

this will include cover for any sub-contractor/SMME used. This shall also cover public liability

insurance. Proof thereof must be submitted in terms of the contractor’s tender document.

4. A site diary, with a triplicate carbon book specifically for instructions issued, must be

implemented and kept up to date and safely on site at all times. (All instructions must be

recorded in the triplicate book – original to consultant, copy to client) The SM will consider the

instruction as not ever have been given, if not in writing as specified above, and therefore the

Consultant will be liable for any cost that may be incurred if the Contractor implements such

further instruction (s). Also refer to “PRICE” S (a) & (b).

5. Rain fall records must be kept.

6. A site equipment register must be kept.

7. A labour register must be kept and contain the following information:-

a) Division in local and “imported” labour

b) Name of each person

c) Gender of each person

d) Race of each person

e) ID Number of each person

f) Copy of the ID of each person

g) UIF Payments

h) Pay Rate (per hour) of each person

i) Days worked per person

j) Category of work (Unskilled, Semi-Skilled, Operator, Driver, Skilled, Professional)

k) Total payment for local labour

l) Total payment for ‘imported” labour

m) Number of SMME’s used

n) Payment to SMME’s

o) Training (Number, type, length, cost and accredited or not)

p) Copy of contracts with labour and SMME’s.

8. Labour must be sourced from the ward where the project is taking place and done in conjunction

with the Ward Councilor through the CLO.

9. Labour rates paid must be in accordance to the amount stipulated by the Department of Labour,

which may vary from time to time.

10. The SM will not be held liable for any costs that may arise (direct & non-direct) due to the project

being shut down or delayed due to non-compliance of any construction, environmental, labour or

any other relevant legislation.

11. The Consultant must ensure that the contractor’s Site Establishment is done in an acceptable

manner, taking the local community and circumstances into consideration.

12. The Consultant will ensure that he / she have a representative on site at all times and that the

contractor has a mandated representative on site at all times.

13. The Consultant agrees to allow SM to obtain a third party professional opinion, at any time

during or after construction, in order to confirm quality / quantities, or any other part of the Works

or documentation related to the Works.

14. The Consultant will at all times ensure the quality and quantities of the Works/ Materials are

correct, within specifications and acceptable. Should it later emerge that this is not the case, the

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municipality reserves the right to hold the Consultant fully accountable for the following and any

other appropriate action in terms of this agreement:-

a) All associated construction costs in correction Works to be done

b) All administrative and/or legal costs

c) Cost of any other professional opinion in order to evaluate works.

d) Should evaluation reports on quality / quantity prove to be acceptable; the SM will pay the cost of such evaluation and if not, the Consultant will be liable for the costs.

15. The Consultant shall continually evaluate the performance of the contractor against established timeframes, milestones, cash flows, quality and performance to expenditure.

16. The Consultant will ensure that monthly technical and site meetings are held and that a Project

Steering Committee is formed that includes the Ward Councillor. A seating allowance must be

payable by the contractor, of a minimum of R 300 / person /meeting in order to cover travelling

costs. This amount may be amended from time to time and the Consultant must request the

amount prior to project costing. The seating allowance will not apply to officials of the

municipality or any other government department or parastatal. All meetings will be held on site

unless otherwise required by the SM.

17. The Consultant will submit all appropriate required reports monthly no later than 2 working days

after calendar month end, in soft and hard copy to the PMU manager.

18. The Consultant must inform the PMU Manager and Ward Councillor immediately, in writing, in

the event any of the following occurring:-

a) Accidents/death on site

b) Major change in scope of the Works required

c) Any other change/incident that may affect the outcome or cost of the project.

d) Any labour related matters that may delay or negatively affect the project.

e) Any material supply matters that may delay or negatively affect the project.

f) Damage to existing services.

19. The Consultant will issue a Practical Completion Certificate and a Final Completion Certificate at

the appropriate stage of the construction contract. Any retention payment will be measured from

the date of the Practical Completion Certificate for a period of one calendar year unless

specified otherwise in the tender document.

20. The Consultant will ensure the implementation of the latest GCC/JBCC at all times.

21. The Consultant shall ensure return of all relevant contractual documentation to the contractor

within a reasonable period of construction contract completion. (Sureties, guarantee’s etc.)

22. The Consultant shall, upon issue of the Final Completion Certificate, within 15 working days,

provide the SM with a project “close out” report which will contain the following project

information:-

a) Back ground

b) Objectives

c) Budget (Payment certificates – Direct & Indirect – VOs- Contingencies etc.)

d) Cash flow

e) Milestones

f) Weather

g) Labour summary (numbers, payments, totals, man days, local, youth, sex etc.)

h) Training summary

i) Challenges/ targets

j) Lessons learnt

k) Photographs (before & after-date stamped with coordinates)

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l) Recommendations

m) General comments

12. CONSTRUCTION CONTRACT PERIOD & PENALTIES

Failure by the Consultant to effect delivery of the construction contract within the specified period, as tendered by the construction contractor (this includes extension of time in accordance with the GCC), shall constitute a breach of contract, which breach shall entitle SM to:-

a) Implement penalty costs on a daily basis of 0.0085 % of the Consultants accepted tender value (Before VAT – No VAT charged on penalties). This applies to calendar days.

b) If determined as poor performance, in terms of Annexure D, may cancel the contract with the Consultant

c) Hold the Consultant liable for all professional costs related to completing the tender in accordance with specifications; and should it be necessary, claim previous construction rectification costs from the Consultant.

d) The Consultant will be blacklisted on the National Treasury database;

e) Exercise any of its rights in terms of this agreement or relevant legislation.

f) The SM will allow the Consultant an opportunity to mitigate their circumstances, in writing, before a final decision is made.

13. INFORMATION 1. The Consultant understands that the SM holds full copyright and ownership on all project related

documentation, inclusive of designs, plans etc. 2. All information is to be considered as confidential.

The Consultant may retain such information but may only make use thereof by express written permission of the SM. The information may be shared with other parties only with the express written permission of the SM.

14. LEGAL COMPLIANCE

The Consultant hereby indemnifies and agrees to defend and hold SM harmless from any liability arising or alleged to arise out of any failure of construction works / services or to conform to any laws, orders, regulations, requirements or standards.

15. PERFORMANCE

KPI’s are weighted and scored to a maximum of 5 points. Performance will be rated monthly, with or without the Consultant. The dates will be pre-arranged.

All scores will be done in terms of Annexure D and scores will be converted to percentage to determine a total percentage based between compliance and satisfaction.

Score categories vs performance is as follows:-

PERFORMANCE RATING

0% 80% Unacceptable

81% 90% Poor

91% 92% Good

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93% 96% Very Good

97% 100% Excellent

In terms of this agreement, the SM reserves the right to terminate the Consultants contract for poor performance with regard to the above, should it become evident that the consultant cannot achieve at least “good” status before the half way point of the construction contract.

In the event of termination due to non-performance of the service provider, no outstanding payment shall be considered until such time the construction contract has reached Final Completion Certificate stage and only then if there is funding available.

Should there be any financial loss for the SM due to contract termination for poor performance; the SM reserves the right to recover such cost from the Consultant, with regard to professional and related costs, as well as any cost on construction, that is due to the poor performance of the Consultant on the project.

16. AVAILABILITY

It is a condition of appointment that at any stage during the period of responsibility, the Consultant will make him/herself available, all reasonable hours, for inspection of the works or meetings, at any location deemed reasonable by the SM, at request of an authorized representative of SM or agent acting on behalf of SM. A minimum notice period of 48 hours will be allowed with the exception of what the SM considers as an emergency.

17. TRANSFER OF RISK

The SM will only accept risk on the project upon receipt of the Practical Completion Certificate, final Bill of Quantities, final “as build” and letter of financial confirmation. [Refer ”DOCUMENTATION”]. Until the Practical Completion Certificate is received, all insurance and other risk remains with the Consultant who must ensure such in the Contractors tender document.

18. CESSION AGREEMENTS

No cession agreements will be entertained, by the Consultant or the contractor, without the prior written consent of the municipality and these types of arrangements must be avoided if possible.

19. DESIGN & CONSTRUCT

If the Consultant is appointed on a Turnkey / Principle Agent (Design & Construct) basis, all the requirements of this SLA will still apply to the Consultant but will also include the latest GCC/JBCC and other construction matters as referred to in this agreement. The Consultant will then be considered as a Contractor. Please see “PAYMENT”

The SM still retains its rights within any other law aside from and within this agreement, in the event of a turnkey appointment.

20. PROFESSIONAL JOINT VENTURES

The Consultant is allowed to engage into a joint venture on the following conditions:-

The JV partner (s) must also be a competent person in the same or other required discipline in order to meet the completion of the contract works.

No payment will be made unless the JV is VAT registered.

The JV must have tendered in accordance with SM procurement regulations.

The percentage value split must be indicated in the JV agreement. This percentage will determine the split in responsibility/accountability between the JV partners in terms of this SLA and any other recourse in terms of law.

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All JV partners must sign this SLA

There must be a bank account in the name of the JV

21. PAYMENT FOR SERVICES

SM reserves the right to only pay for services, after verification by the PMU Manager, for both the Consultant and the Contractor, and within 30 days of date of invoice. Where possible, this will be shortened, in order to assist with cash flow.

The SM reserves the right to withhold/delay payment from the Consultant and the Contractor, for the next Payment Certificate submitted, in the event that the labour and/or SMME’s on the project are not paid by month end by the Contractor on the previous certificate. The delayed payment will be determined by the number of days late payment to the labour and/or SMME’s after the stipulated month end. ie If only paid 6 days after month end, the Contractor payment for the next certificate will be intentionally delayed for 30 days plus 6 days etc.(30 + 6 = 36 days) Proof of timeous payment must be submitted to each Site Meeting failing which it will be considered that labour and SMME’s have not been paid. This will include sub-contractors. This must be included in the Construction tender document for the contractor.

The SM guarantees payment to the Consultant for verified services in accordance to the above.

The SM reserves the right not to pay the Consultant and the Contractor if Labour Reports (or any other requested report) are not received timeously, without penalty to the municipality. This must be included into the Construction tender document for the contractor.

The SM reserves the right not to process payment in the event of any possible conflict with performance of the Consultant until such time that the matter is resolved or the SM has exercised its tights in terms of this agreement or applicable legislation.

The SM will hold the Consultant liable for all costs that may occur due to inappropriate / mismatched / incomplete Bill of Quantities, design & specifications, project management, quality control and safety and reserves the right to withhold payment to the Consultant.

SM reserves the right, and the Consultant agrees as such, to inspect, test or analyze any goods/services, through an appointed independent, appropriately qualified third party, and reject such that do not, in SM’s sole discretion, comply with the contractual requirements, specifications and/or quality. In the event of the Works being of correct specification and quality, the SM will cover the cost of such third party. The converse shall also apply. Any goods/services that Senqu Municipality rejects for non-compliance with regard to the above shall be held at the cost and risk of the Consultant, who shall, when called upon, comply with contractual requirements at own cost.

Payments as the Consultant will be as follows:

Design: 20%

Procurement completion up to report stage: 10%

Project Management: 60% (linked directly to Contractors performance)

Practical Completion/Final documentation/ Structural Certificate (Where appropriate): 5%

Final Completion Certificate: 5%

Payment on Turnkey (Design & Construct) will take place as follows-(Unless approved otherwise, in writing, by the SM):-

Design & documentation up to municipal approval (As per this agreement as Consultant): 10%

Site establishment: 5%

Construction (As per progress / BoQ): 75%

Practical Completion: 5% (1st retention release)

Final Completion: 5% (2nd retention release)

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22. CONTRACTOR PAYMENTS

The Consultant shall ensure that contractor certificates for payment will be submitted as follows:-

Certificate 1: Site establishment and percentage of P & G’s.

Certificate 2 onwards: Materials on site and work verified done to date

P & G’s are to be equally distributed over contract period on a percentage basis, including Certificate 1, but excluding the last two retention certificates.

Second final certificate: release of first retention (5%) AFTER receipt of the Practical Completion Certificate.

Final certificate: release of final retention (5%) AFTER receipt of the Final Completion Certificate.

It must be noted that retention is to be deducted on an ongoing basis, to the value of 10% of the TOTAL project value, including the last construction works certificate and the Site Establishment certificate and excluding the separate retention release certificates.

All the above must be done in a format approved by the municipality and must include progress reports in the format approved by the municipality. [Annexure A & B & C]

Should any claims verified by the Consultant, be discovered before or after payment to the contractor, be untrue, the SM reserves the right to hold the Consultant liable in all implications of such a matter and the right to dismiss the consultant with immediate effect if discovered to be deliberate and to recover any costs involved directly from the Consultant.

23. FAILURE TO COMPLY AND DELAYED EXECUTION

Should the Consultant fail to comply with any of the conditions of this agreement, SM shall be entitled, without prejudice to any of its other rights, to cancel the appointment of the Consultant.

Upon any delay beyond the contract period, SM may, without prejudice to any other right and without canceling the Consultants appointment, be entitled to arrange for the execution of the service(s) not rendered or not rendered in conformity with this agreement or to cancel the appointment and without prejudice to its other rights, be entitled to claim damages from the Consultant.

24. BREACH

If either party breaches these terms and conditions, as per this agreement, and fails to remedy such breach within 30 calendar days of written notice from any other party calling for the breach to be remedied, then the non-breaching party shall be entitled, without prejudice to any other rights that it may have in law, whether under this agreement or otherwise, to cancel the appointment without notice or to claim immediate specific performance of all the defaulting party's obligations, whether or not due for performance, in either event without prejudice to the aggrieved party's right to claim damages.

25. DEATH, SEQUESTRATION, LIQUIDATION OR JUDICIAL MANAGEMENT

In the event of the death of a Consultant or the provisional or final sequestration of the Consultant or of its cession or transfer of the appointment without the approval of SM or of the surrender of its business or it reaching a compromise with its creditors or of the provisional or final liquidation of a Consultants company or the placing of its affairs under judicial management, SM may, without prejudice to any other rights it may have at law, exercise any of the following options:

- Cancel the appointment and accept any offer subsequently received to complete the services. In such a case the Consultant shall not be relieved from liability for any claim which has arisen or may arise against the Consultant in respect of goods/services not delivered or work not carried out by the Consultant under the appointment.

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- allow the executor, trustee, liquidator or judicial manager, as the case may be, for and on behalf of and at the cost and expense of the business of the Consultant to carry on with and complete the contract; or

- for and on behalf of and at the cost and expense of the business of the Consultant, itself carry on with and complete the contract

26. DISPUTE RESOLUTION

Any unresolved dispute between the parties arising out or in connection with this SLA, including its existence, application, breach, interpretation, validity, termination or cancellation, shall be referred to the Senior Manager: Supply Chain Management of Senqu Municipality, who will have seven (7) working days to resolve the dispute, and if not resolved, then the Municipal Manager, who will undertake to meet within seven (7) working days after being requested by either party, in order to resolve the dispute.

Only thereafter, if nor resolved, shall the matter be submitted to and decided by arbitration in terms of the Arbitration Act, 1965, of the Republic of South Africa, subject to the following provisions:

In the event of either party having a claim against the other party for a liquidated amount or an amount which arises from a liquid document, then the party having such claim shall be entitled to institute action therefore in a court of law rather than in terms of the above, notwithstanding the fact that the other party may dispute such claim.

27. GOVERNING LAW

Is the law of South Africa, as amended time to time.

28. NOTICES AND CONTACT

Each party chooses as its address for all purposes under this SLA (“chosen address”), whether for serving any court process or documents, giving any notice, or making any other communications of whatsoever nature and for any other purpose arising from this SLA (“notice & contact”), as its domicilium citandi et executandi. A domicilium citandi et executandi shall be chosen in the Republic of South Africa. This will be inserted into this agreement below.

Any notice required or permitted under this SLA shall be valid and effective only if in writing, in terms of “CORRESPONDENCE’ above.

Any party may, by notice to the other party, change its chosen address to another physical address in the Republic of South Africa and such change shall take effect on the seventh (7) calendar day after the date of receipt by the party who last receives the notice.

Any notice to a party contained in a correctly addressed envelope and delivered by hand to a responsible person during ordinary business hours at its chosen address, shall also be deemed acceptable.

29. LIMITATION OF LIABILITY

Unless otherwise provided for in this agreement or in any further written agreement, neither party shall be liable to the other for any indirect, consequential, special, incidental or punitive damages, including without limitation, loss of use or lost business, revenue, profits, anticipated savings, reputation or goodwill arising in connection with the Consultants appointment , services, related products, documentation and/ or the intended use thereof under any theory, contract, warranty, strict liability or negligence even if the party has been advised, knew or should have known of the possibility of such damages.

Nothing in this agreement shall restrict either party’s liability for:

(a) Fraud; or

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(b) Death or personal injury caused by its negligence or intentional or willful act;

(c) Damage to real or tangible personal property caused by its negligence or intentional or willful misconduct; or

(d) Any breach of obligations under this agreement in respect of confidentiality and intellectual property; or

(e) Any other liability that cannot be excluded by law.

30. CONFIDENTIALITY

The parties agree that the terms of this SLA that all confidential and proprietary information of the parties communicated to them in connection with this SLA/appointment shall be received in strict confidence and be used only for the purposes of this SLA/appointment. Each party shall use the same means as it uses to protect its own confidential information, but in no event less than reasonable means, to prevent the disclosure and to protect the confidentiality of such information. No such information shall be disclosed by the recipient party, its agents, representatives or employees without the prior written consent of the other party.

These provisions do not apply to information which is:

- publicly known or becomes publicly known through no un-authorised act of the recipient party;

- rightfully received by the recipient party from an outside party;

- independently developed by the recipient party without use of the other party's information;

- disclosed by the other party to an outside party without similar restrictions;

- required to be disclosed pursuant to a requirement of a governmental agency or any applicable law,; or

- Publicly disclosed with the other party's written consent.

_____________________________________________________________________________________

We, the undersigned, as mandated representatives, understand and agree to the terms of this Service Level Agreement.

FOR SENQU MUNICIPALITY

NAME: SIGNATURE: DATE:

Cell: email:

CAPACITY

FOR CONSULTANT

NAME: SIGNATURE DATE

CAPACITY:

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SENQU MUNICIPALITY

ADDRESS: 19 MURRAY STREET

LADY GREY

9755

POSTAL ADDRESS: PO BOX 18

LADY GREY

9755

Fax: 051-6030445

Tel: 051- 6031300

COMPANY NAME ______________________________________________________________________

ADDRESS: ___________________________________________________________________________

POSTAL ADDRESS:____________________________________________________________________

Cell:_______________________ Tel: ________________________email:_________________________

WITNESS # 1:

NAME:

SIGNATURE:

WITNESS # 2:

NAME:

SIGNATURE:

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Government & Nonprofit

CSCM Sla cscm