SERVICE LEVEL AGREEMENT

Entered into by and between

RUSTENBURG LOCAL MUNICIPALITY

A Municipality established in terms of the Municipal Structure Act 117 of 1998

(As amended), herein represented by Mr BHEKI KHENISA in his
capacity as Municipal Manager
(Hereinafter referred to as RLM)
AND
MMELA INVESTMENT HOLDINGS ( Pty) LTD
A Corporation duly registered in terms of the laws of Republic of South Africa,
with registration no:2006/005988/07, herein represented by
MOHOBI WILSON

RAMATSETSE

(Hereinafter referred to as (PREFERED BIDDER ))

THE DESIGN ,BUILD AND OPERATION OF THE INFORMATION AND COMMUNICATION

TECHNOLOGY( ICT) COMPONENT FOR THE RUSTENBURG RAPID TRANSPORT ( RRT) NETWORK

It is agreed between the parties that:-

(a)

RLM is a Municipality constituted in terms of Municipal Structure Act 117 of

1998 as amended and is authorised to deliver various services within its
area of jurisdiction;

(b)

PREFERED BIDDER have submitted a bid for THE DESIGN ,BUILD AND
OPERATION

OF

THE

INFORMATION

AND

COMMUNICATION

TECHNOLOGY( ICT) COMPONENT FOR THE RUSTENBURG RAPID

TRANSPORT ( RRT) NETWORK

, a bid which has been accepted by

RLM;

(c)

PREFERED BIDDER now contract with RLM and binds its self to meet the
performance goals and to comply with the obligations contained herein in
addition to the performance goals and obligations contained in Bid
Documents which they submitted to RLM;

(d)

Time and accuracy are of the essence in

OPERATION

OF

THE

INFORMATION

THE

DESIGN ,BUILD AND

AND

COMMUNICATION

TECHNOLOGY( ICT) COMPONENT FOR THE RUSTENBURG RAPID

TRANSPORT ( RRT) NETWORK

1.

ABBREVIATION

Abbreviation
APC
APTMS
AVA
ATIS
ATMS
AVL
AVLC
BRT

Associated Term
Automatic Passenger Counter
Advanced Public Transport Management System
Automatic Voice Annunciator
Advanced Traveller Information System
Advanced Traffic Management System
Automatic Vehicle Location
Automatic Vehicle Location Control System
Bus Rapid Transit
2

Abbreviation
RRT
C2C
CCTV
CD
DT
DDE
DVR
EGPRS
FAT
FM
FPD
GIS
GPRS
GPS
GSM
GUI
ICASA
ISO
ISP
ITS
LAN
MTBF
MTTR
NDOT
NPS
ODBC
OLAP
OLE
PDU
PPFA
Qty
RDBMS
RTPI
SAT
SISS
SSS
SLA
TSP
TSPE
TSPR
USSD
UTC
VMS
VMU

Associated Term
Rustenburg Rapid Transit
Centre to Centre communication interface
Closed-Circuit Television
Compact Disc
Driver Terminal
Dynamic Data Exchange
Digital Video Recorder
Enhanced General Packet Radio Service
Factory Acceptance Test
Fleet Management
Flat Panel Display
Geographic Information System
General Packet Radio Service
Global Positioning System
Global System for Mobile communications
Graphical User Interface
Independent Communications Authority of South Africa
International Standards Organisation
Internet Service Provider
Intelligent Transportation Systems
Local Area Network
Mean Time Between Failures
Mean Time to Repair
National Department of Transport
National Payment System
Open Database Connectivity
On-Line Analytical Processing
Object Linking and Embedding
Passenger Display Unit
Preferential Procurement Policy Framework Act
Quantity
Relational Database Management System
Real Time Passenger Information
Site Acceptance Test
Station Information Sign System
SISS Server
Service Level Agreement
Transit Signal Priority
Transit Signal Priority Emitter
Transit Signal Priority Receiver
Unstructured Supplementary Service Data
Urban Traffic Control
Variable Message Sign
Vehicle Mounted Unit

Abbreviation
WAN
WAP
Wi-Fi
WLAN
WWW
XML
2.

Associated Term
Wide Area Network
Wireless Application Protocol
Wireless Fidelity (Wireless Network technology IEEE 802.11
etc.)
Wireless Local Area Network
World Wide Web
Extensible Markup Language

INTERPRETATION

In this agreement, unless the content indicates otherwise:-

1.1 Words importing natural persons shall include a reference to body

corporate and other legal persons and vice versa;

1.2 Words importing the masculine shall include a reference to the

feminine and vice versa;

1.3 Words importing the singular shall include a reference to the plural
and vice versa;

1.4 Addendums to this agreement (if any) shall be deemed to have been
incorporated herein and shall form an integral part hereof;
1.5 A reference to a party in a document includes that partys successor in
title and permitted assigns;
1.6 Any reference to an enactment is to that enactment as at the date of
signature hereof and as amended or re-enacted from time to time;

1.7 Where the day on or by which anything is to be done is not a business

day, it shall be done on or by the first business day thereafter;

1.8 In this agreement, any stated period of time shall be reckoned

exclusively of the first and inclusively of the last day, unless the last
day falls on Saturday, Sunday or Public Holiday, in which case, the
last day shall be the next succeeding day which is not a Saturday,
Sunday or Public Holiday;

1.9 The headings appearing in this agreement are for reference purposes
only and shall not affect the interpretation hereof;
1.10 If any provision is a definition (under this heading Interpretation
and/or any other heading in this agreement) and is a substantive
provision conferring rights or imposing obligations on any party,
notwithstanding that it is only in the definition (or such other clause)
effect shall be given to it as it were a substantive provision in the body
of the agreement;

1.11 Where figures are referred to in numerals and words, if there is any
conflict between the two, the words shall prevail;
1.12 Use of word including followed by one or more examples shall not be
interpreted as precluding others, nor as limiting the generality of the
preceding words.
1.13 Use of word pay or payment or similar, means payment in full without
any deduction or set off whatsoever save where expressly provided for
herein, on or before the stipulated date;
1.14 It is agreed that both parties have had access to legal advice in the
entering into of this agreement and that in the circumstances, and if
any interpretation is required, the terms hereof will not be interpreted
against RLM;

DEFINITIONS

In this contract, unless the context indicates otherwise the following

expressions shall have the meaning assigned to them hereunder:PREFERED BIDDER

shall

mean

MMELA

INVESTMENT

HOLDINGS( PTY) LTD a

Company

duly incorporated in terms the laws of

South Africa bearing Registration No
2006/005988/07, and having its principal
address

of

STREET

business
10th

at

MELE

FLOOR,SUCCESS

HOUSE ,BRAAMFONTEIN ,

and

shall include its successor in title and

permitted assigns;
RLM

shall

mean

Rustenburg

Local

Municipality and its successor in title;

Bid

shall

mean

Bid

no:RLM/MM/0035/2014/15for

THE

DESIGN ,BUILD AND OPERATION OF

THE

INFORMATION

COMMUNICATION
ICT)

COMPONENT

AND

TECHNOLOGY(
FOR

THE

RUSTENBURG RAPID TRANSPORT (

RRT) NETWORK .
Bid Amount

shall mean the fee payable to the

PREFERED

BIDDER

as

per

Bid

number RLM/MM/0035/2014/15 for the

as

espoused

in

the

PREFERED

BIDDER`S Pricing Data supplied in

response

to

Bid

No:

RLM/MM/0035/2014/15
Effective date

shall mean period commencing on 01st

of JUNE 2015;

Duration of the Agreement

means

SEVEN (07) YEAR from 01st

of JULY 2015 to

31st AUGUST 2022

as per Bid no: RLM/MM/0035/2014/15

Agreement

means this agreement and addendums

hereto and amendment hereof;

Scope of work

refers to bid specifications as outlined in

of Bid no: RLM/MM/0035/2014/15 as
specified

in

the

specifications

as

contained in the Bid.

Good Industry Practice

in relation to the manner in which

services are rendered and as referred to
in

this

standards,

agreement,

shall

practices,

methods

mean
and

procedures conforming to all applicable

laws and exercising that degree of skill,
care, diligence, prudence and foresight
that would reasonably and ordinarily be
expected from a skilled and experienced
person engaged in a similar type of

undertaking

under

certain

circumstances;
RFB

shall mean the request for Bid no:

RLM/MM/0035/2014/15

Bid Specification

shall mean the specification as THE

DESIGN ,BUILD AND OPERATION OF
THE

INFORMATION

COMMUNICATION
(ICT)

AND

TECHNOLOGY

COMPONENT

FOR

THE

RUSTENBURG RAPID TRANSPORT

(RRT) NETWORK

made by the RLM

and outlined in Part I of Bid no:

RLM/MM/0035/2014/15
Services

shall mean THE DESIGN ,BUILD AND

OPERATION OF THE INFORMATION
AND

COMMUNICATION

TECHNOLOGY(
FOR

THE

ICT)

COMPONENT

RUSTENBURG

RAPID

TRANSPORT ( RRT) NETWORK .

Business day

means any working day, excluding

Saturdays,

Sundays

and

public

holidays;
Client

means the RLM;

Methodology

means the professional expertise and

the system of methods required by the

PREFERED BIDDER to perform the

obligations set out in terms of this
Agreement;
Prime rate

means the variable interest rate as

charged

and

calculated

by

the

PREFERED BIDDER bankers from time

to time;
Project

means the services to be performed by

the PREFERED BIDDER in terms of the
Tender

and

the

corresponding

obligations to be fulfilled by the Client;

Corrupt act

includes:
(a) Offering, giving or agreeing to give to
RLM or any other organ of state or to
any official of or person employed by or
on behalf of RLM or any other organ of
state, any gratification (as defined below)
of any kind as an inducement or reward:
(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

any other contract with RLM or any
other organ of state; or

(ii)

for showing or not showing favour

or disfavour to any person in

relation to this agreement or any

other contract with RLM or any
other organ of state;

(iii)

in any circumstances that would

constitute an offence in terms of the
Prevention

and

Combating

of

Corrupt Activities Act, Act 12 of

2004; or

(iv)

for entering into this agreement or

any other contract with RLM or any
other organ of state in connection
with which commission has been
paid or has been agreed to be paid
by PREFERED BIDDER or on its
behalf, or to its knowledge, unless
before the relevant contract is
entered into particulars of any such
commission and of the terms and
conditions of any such contract for
the payment of such commission
have been disclosed in writing to
RLM

(b) Committing any offence:

(i) under any law from time to time
dealing with bribery, corruption or
extortion including but not limited to
the Prevention and Combating of
Corrupt Activities Act, Act 12 of 2004;

10

(ii) under any law creating offences in

respect of fraudulent acts or Tenders;
or

(iii) at common law, in respect of fraudulent

acts in relation to this agreement or any
other contract with RLM or any other
public body; or

(iv) Defrauding or attempting to defraud or

conspiring to defraud RLM or any other
public body.
Gratification

includes:
(a) Money, whether cash or otherwise;

(b) Any donation, gift, loan, fee, reward, valuable

security, property or interest in property of any
description, whether movable or immovable, or
any other similar advantage;

(c) The

avoidance

of a

loss,

liability,

penalty,

forfeiture, punishment or other disadvantage;

(d) Any office, status, honour, employment, contract

of employment or services, any agreement to give
employment or render services in any capacity
and residential or holiday accommodation;

11

(e) Any payment, release, discharge or liquidation of

any loan, obligation or other liability, whether in
whole or in part;
(f) Any forbearance to demand any money or
moneys worth or valuable thing;
(g) Any other service or favour or advantage of any
description, including protection from any penalty
or disability incurred or apprehended or from any
action or proceedings of a disciplinary, civil or
criminal nature, whether or not already instituted
and includes the exercise or the forbearance from
the exercise of any right or any official power or
duty;
(h) Any right or privilege;
(i) Any real or pretended aid, vote, consent, influence
or abstention from voting, or
(j) Any valuable consideration or benefit of any kind,
including

any

discount,

commission,

rebate,

bonus, deduction or percentage.

A.

RRT COMMUNICATION SYSTEM

a.1

The project is a design-build-maintain project and requires that the

Contractor prepare engineering designs and conduct value
engineering to develop the optimum design prior to construction.

12

a.2

The project consists of three major components or phases which

are:
a.2.1

Design

a.2.2

Supply, install, commission and test

a.2.3

Warranty and Maintenance.

a.3

Prior to commencing construction approved designs are required

which shall be constructed based upon fixed prices based upon the
Bill of Quantities.

a.4

The PREFERED BIDDER shall be responsible for providing and

maintaining a full and integrated communication system regardless
of omissions in the specifications or tender documents.

a.5

PREFERED BIDDER

shall be

responsible to co-ordinate with

other agencies, the authorities utilities and other parties which may
impact the project.
a.6

The PREFERED BIDDERSs designs shall make optimum use of

existing communication infrastructure.

2.

COMMUNICATIONS SYSTEM GENERAL REQUIREMENTS

2.1.

The network shall provide timely and accurate communication

channels to all the peripheral and control equipment on the RRT
bus system

2.2

The network shall be capable of providing capacity at all levels,

from basic "dark fibre" access to fully fledged integrated multimedia
" value add" services to end users.

2.3.

The network shall be designed such that a natural upgrade path

exists for the RRT communication fibre network backbone to
become integral to the RLM Broadband Project requirements.

13

2.4.

The communications network shall provide data acquisition and

control capabilities to the transport and traffic network managers in
the UTC and RRT Control Centers.

2.5.

Typical important information to be relayed by the communications

network is:
2.5.1 Traffic signal faults
2.5.2 Road construction work
2.5.3 Events and incidents
2.5.4 Public transport information including next bus status
2.5.5 Public transport route and schedule information
2.5.6. VMS message content
2.5.7 CCTV (streaming video)

3.

ENVIRONMENTAL REQUIREMENTS
3.1

Equipments shall be rated for continuous operation under the

ambient

environmental

temperature,

humidity,

and

vibration

conditions encountered at the installed location.

3.2

For devices located in harsh environments such as interior

uncontrolled or exterior environments, the PREFERED BIDDER
shall provide the necessary housings or enclosures to ensure
proper equipment operation and performance.

3.3.

The equipment shall operate under the following ambient

conditions:

a. Interior controlled environment: 15 to 35 degrees C and 20 to 90

percent relative humidity, non-condensing.

14

b. The Control Centre shall be considered this type of environment.

c. Interior, uncontrolled environment: 0 to 40 degrees C and 10 to 95

percent relative humidity, non-condensing. RRT bus stations shall
be considered this type of environment
d. Exterior environments: - 10 degrees to 40 degrees C fully
condensing in all weather conditions.

4.

APPOINTMENT

4.1 .RLM hereby appoints PREFERED BIDDER , who hereby accepts such
appointment to execute the project with effect from the effective date, subject
to the terms and conditions of the agreement.

4.1.1 This appointment is subject at all times to:4.2.1. The terms and conditions of this agreement;
4.2.2 All applicable by-laws, National and Provincial legislation.

4.3.

This appointment given in terms of this agreement shall last for the
duration of this agreement and upon expiry of this agreement through the
effluxion of time or otherwise, all rights and entitlements given in terms of
this agreement shall immediately and automatically cease and be of no
force or effect save where this agreement expressly provides that any of
its provision will continue.

15

5.

DURATION AND PAYMENT

5.1

This agreement shall commence on 01st of AUGUST 2015

notwithstanding date of signature hereof, and shall endure for a
period of SEVEN (07) YEARS unless terminated earlier in terms of
the provision of the agreement.

5.2

As from the 01st JUNE 2015 until 31st JULY 2022 any party has
the right to terminate this agreement for any reason.

5.3.

Nothing in this agreement shall be construed as creating any expectation

that this agreement will be renewed for a further terms or period.

5.4.

No statement, promises or the like from any official of RLM regarding

further renewals of this contract shall bind RLM unless they are contained
in a written agreement signed by the Municipal Manager or duly
authorised representative of RLM;

5.5.

PREFERED BIDDER acknowledges that on expiry of the period of this

agreement, the RLM will be obliged to engage in an open and competitive
bidding process (in which PREFERED BIDDER will be entitled to
participate provided that they meet and are able to comply with the tender
specification issued), before any further contract for the rendering of the
services are awarded to any party;
5.6.

PREFERED BIDDER shall submit a monthly tax invoice to RLM on

or before the 25th of each month in the manner specified by RLM
from time to time, setting out clearly amounts claimed in terms of this
agreement

together

with

such

explanations

and

proof

of

disbursements supporting such claims.

5.7.

All invoices submitted by PREFERED BIDDER to RLM as

contemplated in this Clause shall comply with the Value-Added Tax
Act, 1991.

16

5.8.

RLM shall pay PREFERED BIDDER

in terms PART C of

OPERATIONAL COSTS as reflected in the bid document no:

RLM/MM/0035/2014/15 that is R848,951,067.54 (VAT INCL)
5 .8.1

The contingency fee to be claimed only on the occurrence of the

event that necessitates such claim and will only be paid upon
production of proof by the PREFERED BIDDER such signed by the
project manager and approved by the relevant Director of the
project.

5.9. RLM shall pay amounts due on timeously submitted correct invoices
on or before the last day of the following month;
5.10. It is the duty of the PREFERED BIDDER to send at least 2 (two)
reminders to the municipality once an invoice has not been paid for 3
weeks after submission.
5.11. Both reminders on delayed invoices must be sent in writing (e.g. email
or letter) to the employee that requested the service and Supply Chain
Divisional Manager.
5.12. Where no reminders were sent on delayed payments the PREFERED
BIDDER cannot charge interest as the municipality was not informed
or aware of such a delay.

5.13. RLM shall be entitled to withhold payment of any amount claimed

where there are legitimate queries outstanding or where proof of
having performed the services, or a part thereof, has not been
supplied as required below.

17

6.SCOPE OF WORK
6.1.

The project is a design, build maintain project in which the

Contractor is responsible for developing an optimum design which
meets the requirements of the specification and provides the best
value to the RLM.

6.2.

The approved design will form the basis for the system(s) supply
and commissioning as well as the maintenance activities.

6.3.

The contractor shall be responsible for the design, supply, delivery,

installation,
warranty,

interfacing,
maintenance,

integration,
training

testing,

and

commissioning,

documentation

of

the

communication system.

6.4. SYSTEM DESIGN

6.4.1. The system design activities include all design activities
necessary to evaluate communications alternatives and
develop detail design documents suitable for construction.

6.4.2. At a minimum the design activities shall include:

6.4.2.1.To conduct investigations into existing infrastructure
to

determine

suitability

for

use

in

RLM

communication system.
6.4.2.2. These investigations shall include field investigations
if necessary to confirm details or ambiguities.
6.4.2.3.To develop a variety of alternatives to meet the
communications

requirements

and

provide

communication links to all relevant RRT field

equipment.

18

6.4.2.4. These alternatives shall include fibre optic networks,

wireless networks, leased networks, shared networks
and other networks as appropriate.
6.4.2.5 The alternatives shall also include a variety or
priorities for connection as determined by RLM.
6.4.2.6. To prepare preliminary designs including costs
based upon self-compiled realistic Bill of Quantity
items for review, comment and approval of RLM
developed availability models for the fibre optic
communication

system

and

the

wireless

communication system
6.4.2.7. To obtain and prepare base plans for design
(drawings to be made available to appointed
contractor only)
6.4.2.8 Co-ordinate with utilities and include utilities on base
plans
6.4.2.9. Conduct propagation analysis and field survey for all
sites

identified

for

radio

communications

and

calculate link margins and theoretical bit error rates,

packet error rate and throughput when appropriate
6.4.2.10.Co-ordinate with power utilities to identify power
access points
6.4.2.11. Co-ordinate with high site owners, contractors and
others to determine cost effective access methods
6.4.2.12. Prepare detail material lists for all items
6.4.2.13. Prepare installation and schematic drawings
6.4.2.14. Locate all equipment, draw pits, and infrastructure
to be constructed or utilized

19

The PREFERED BIDDER shall conduct RF testing and wireless network

planning.

6.4.2.15. It shall include site surveys and RF testing as well

as a

comprehensive

wireless network

plan

including frequency allocations.

6.4.2.16 The network design review shall be aimed at optimal

use of the tendered products with possible
repositioning and reductions in quantity where
applicable.
6.4.2.16 This information shall be reviewed with RRT and
conclusions incorporated into the designs.
6.5. SYSTEM SUPPLY, INSTALLATION, AND COMMISSIONING
a. In accordance with the approved Detailed
Designs the Contractor shall supply all
material, install, test, commission, document
and conduct training on the Fibre Optic
Communication System(s) and the Wireless
Communications System (s).

6.5.1. The communication subsystems to be provided in this

contract include:
6.5.1.1

Optical

fibre

cables

and

ducts

and

wireless

communication systems on the RRT main routes

connecting the bus stations, depots, terminal buildings,
Variable

Message

Signs

(VMS),

Closed

Circuit

Television (CCTV) systems and( traffic intersection

controllers and traffic sensors) if applicable.

20

6.5.1.2.

Fibre cables and ducts on the main and other routes

connecting CCTV, VMS, traffic intersection controllers
and traffic sensors to the main fibre backbone

6.5.1.3

Wireless systems at the bus stations, depots and

control center buildings

6.5.1.4

Wireless systems on the main routes and other routes

to all CCTV, VMS, traffic intersection controllers and
traffic sensors in RLM where fibre optic cable is not
available

6.5.1.5

Leased wireless services for locations where dedicated

wireless systems are not cost effective, or otherwise
cheaper.

6.5.1.6

Communication network management systems

6.5.1.7

Communication network switching and routing systems

6.5.1.8.

The bus stations, depots and Control centre buildings

shall be the communication nodes, each provides
connectivity to:
1. The Station Information Signs Sub Systems (SISS)
2. All the RRT CCTV Systems, inclusive of arterial roads
, RRT and other roadways
3. The station Ticketing Office
4. All RRT depot, station and terminal building Wi-Fi
systems
5.

All

motorway

traffic

detection

systems

(traffic

sensors/cameras)
6. All traffic signal controllers

21

6.5.1.9. The communication access points to peripherals shall be in

the station equipment room.

6.5.1.10.The Contractor is responsible for providing all cabling

required connecting the communication equipment.

6.5.1.11.The project includes but is not limited to the following

equipment and services:
a.

Communication routers and switches;

b.

Fibre optic transmission equipment;

c.

Wireless communication systems;

d.

Fibre optical cables, ducts, manholes(not provided

under the RRT), splicing and fibre terminating domes
and panels;

e.

Equipment racks in bus stations

f.

Documentation and Training Material;

g.

Operations and Maintenance Training;

h.

Provision of maintenance services;

i.

Provision of warranty services.

j.

Alternative Power Supplies (Solar / UPS) in those

areas where provision of local electrical supply is
prohibited by unavailability of supply, lack of access
or cost.

k.

Design

of

associated

hardware,

software

and

installation arrangement and submit design and

samples for approval;

22

l.

Make good all damaged pavements , roadways, etc.

caused during trenching and installation of optical
fibre cable and other equipment;

m.

Arrange for provision of power to the arterial wireless

and other equipment from the local power utility;

n.

Integration and testing of all communication switches,

routers, fibre optic cables and other equipment with
the NMS;

o.

Systems integration for complete system;

p.

Set-up and conduct system acceptance test;

q.

Set-up and conduct optical fibre cable tests;

r.

Co-ordination of the works with other contractors for

site access and scheduling of works;

s.

Associated

project

management,

audits

control,

inspection and measurement and reporting activities.

t.

Co-ordination of the works with other contractors for

locating and installing equipment in the UTC;

u.

Conduit and power cable to provide power from the

power supply point;

v.

Provisioning

of

suitable

earthing

and

lighting

protection as needed;
w.

Set-up and conduct system acceptance test;

x.

Configuration and set-up of central communications

equipment for operations;

6.5.1.12.

The

communication

system

cabinets

and

power

distribution shall be designed, supplied and installed by

23

the contractor as part of the Works and it shall include

the following.
a. coordination with the local utility;
b. utility co-ordination and protection of other utilities
c. installation of power cable;
d. Installation of conduit from communication equipment

racks and cabinets to the nearest power supply point.

7.

WARRANTY AND MAINTENANCE

The PREFERED BIDDER shall Warrant and Maintain the communication
system(s) during the Warranty period with no additional compensation.

7.1. Upon certification by the RRT of the Completion of the Warranty

period with no outstanding defects the Contractor shall Maintain the
system for the duration of the seven (7) years (with an option to be
extended for the two following years with only with prior approval by
council)

and

Maintenance

period

may

be

compensated

in

accordance with the approved tender price.

7.2

During the Maintenance period the defective material shall be

provided by the PREFERED BIDDER

The PREFERED BIDDER shall have insurance during the Warrantee and
Maintenance periods for material and labour required due to acts of God,
vandalism, and theft.

24

8.

ACKNOWLEDGEMENTS AND NOTIFICATIONS

8.1. All acknowledgements and notifications which the PREFERED

BIDDER is required to give to RLM shall be by way of registered post
or fax addressed to the person nominated by RLM, and failing such
nomination, to the Director: Community Development of the RLM. All
such notifications and acknowledgements shall be made as soon as is
practically possible after the event being reported on.

8.2 RLM may excuse PREFERED BIDDER from providing, some or all,
notifications or acknowledgements provided that this shall be required
to be given in writing and in advance and provided further that RLM
may at any time on written notice to SERVICE PROVIDER, reinstate
any or all such reporting obligations.

9.

GENERAL REQUIREMENTS
9.1 PREFERED BIDDER to be responsible for all the measurements.
9.2 No Sub-contractor will be

allowed without prior written approval by

the municipality .
9.3. All work will be inspected during the feasibility study phases and after
completion to the satisfaction of the Project Manager.

9.4 All essential items not included in the scope of work must be quoted
for separately and be brought to the attention of the Project Manager
of Works and be attached to the official quotation clearly marked as
Annexure

25

10.

GENERAL CONTRACT STANDARDS

At all times PREFERED BIDDER shall:10.1

Apply and conform to the standards and level of skill that would
constitute good industry practice;

10.2

Comply strictly with the provisions and time periods set out and In
the specification attached to the request for bid and with the
contents of the bid submitted by PREFERED BIDDER in response
to the Request for Bid and against which RLM awarded this tender
to PREFERED BIDDER .

10.3

In the event of any conflict between any of these documents, the

provisions hereof shall prevail and apply;

10.4

Ensure that it has the machinery, equipment and technology

necessary to comply with this agreement and to perform the
services and shall further ensure that such machinery, equipment
and technology is properly serviced, maintained and updated such
that the risk of any delays in the rendering of the services in
minimised;

10.5

Ensure that it has such contingency plans in place as is necessary

to ensure that in the event of any unplanned or unforeseen
disruption of any description, for any reason and howsoever
caused, that the service will be rendered as provided for in this
agreement;

10.6

Ensure that the service to be rendered is of the highest standard.

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11.

AGENTS AND CESSION

11.1 PREFERED BIDDER shall not cede, assign or sub-contract all, or any
portion of, their rights under this contract to any third party without
RLMs prior written consent which may not be arbitrarily withheld.

12.

BEE STATUS

12.1.PREFERED BIDDER acknowledges that they disclosed a certain

Black Economic

Empowerment (BEE)

status to RLM in their

response to the RFB.

12.2. PREFERED BIDDER undertakes that for the duration of this

agreement that such BEE status as disclosed will not be reduced.

12.3. In case where the shareholdings of the company changes during the
year the municipality as the client must be informed of such changes.

13. WARRANTIES

13.2. PREFERED BIDDER warrants that:-

13.3. It has taken all necessary actions to authorise its execution of this
agreement and that it is able to perform the services as required in
terms of this agreement;

13.4. The execution and performance of this agreement and the services do
not and will not contravene any provision of the memorandum or
articles of association of PREFERED BIDDER as at the date of
signature hereof, or any order of court or agreement with any third
party in existence as at the date of signature hereof;

27

13.5. All consents (in the form of internal authorities and applicable business
licenses) required for the performance of the service are in full force
and effect as at the date of signature hereof and will be kept current for
the duration of this agreement and any conditions contained in such
consents will be complied with at all times;

13.6. No litigation, arbitration, investigation and administrative

proceedings

is in progress as at the date of signature hereof, or the best of the

knowledge of the PREFERED BIDDER as at the date of signature
hereof having made all reasonable enquiries, threatened against it,
which is likely to have a material adverse effect on the ability of the
PREFERED BIDDER to provide the services as set out herein;

13.7. PREFERED BIDDER is not subject to any obligation, non-compliance

with which is likely to have a material adverse effect on its ability to
provide the services;

13.8. No proceedings or any other steps have been taken or, to the best of
the knowledge of the PREFERED BIDDER having made all
reasonable enquiries, threatened for the winding-up or liquidation
(whether voluntary, provisional or final), judicial management (whether
provisional or final) or deregistration of PREFERED BIDDER or for the
appointment of a liquidator, judicial manager or similar officer over it or
over any of its assets;

13.9. All information disclosed by or on behalf of the PREFERED BIDDER to

RLM at any time up to the date of signature hereof and, in particular
during the bid process preceding the award of this agreement to
SERVICE PROVIDER, is true, complete and accurate in all material
respects and PREFERED BIDDER is not aware of any material facts

28

or circumstances not disclosed to RLM which would, if disclosed, be

likely to have an adverse effect on RLMs decision (acting reasonably)
to award this agreement to SERVICE PROVIDER.

13.10. RLM warrants that:-

13.10.1.

It has taken all necessary actions to authorise the execution

of this agreement; and

13.10.2.

It has not knowingly omitted to disclose any material

information in its possession or under its control relating to
the services to be performed in terms of this contract.

14. EQUIPMENT CONDITION

14.1 PREFERED BIDDER shall ensure that the

SUPPLY AND

DELIVERY OF ICT EQUIPMENT

, is:14.1.1 Of the type specified in the specification of the RFB and
where not specified are suitable for the task required; In
compliance with any relevant rules, regulations, codes of
practice and/or South African standards and shall, as soon
as practical after receiving a request from RLM supply to
RLM evidence to demonstrate its compliance with this
clause.
15 LIMITATION OF LIABILITY

15.1

The PREFERED BIDDER hereby protects and secures the Client

against all legal liability with regard to any claims that may arise as a

29

result of a breach of contract or negligence on the part of the

PREFERED BIDDER in respect of its obligations in terms of this
Agreement.

15.2

The maximum liability of the PREFERED BIDDER in respect of the

afore stated claims shall be limited to the aggregate of fees that have
accrued to the PREFERED BIDDER for the obligations that form the
subject of the breach of contract or negligence as at the time that the
cause of action arose.

16 CORRUPT ACTS

16.1

PREFERED BIDDER acknowledges that RLM has a zero tolerance

of corrupt acts and of the giving, receiving, soliciting or offering or
gratification.

16.2

PREFERED BIDDER warrants that in entering into this agreement it

has not committed any corrupt act.

16.3

If SERVICE PROVIDER, any shareholder, any PREFERED BIDDER

or any affiliate or any of them (or anyone employed by acting on
behalf of any of them) commits or is reasonably suspected by RLM
of having committed any corrupt act during the term of this
agreement, then RLM shall be entitled to terminate this agreement
with immediate effect by giving written notice to SERVICE
PROVIDER;

16.4 Any notice of termination under this clause shall specify:16.4.1 The nature of the corrupt act;
16.4.2 The identity of party or parties who RLM believes has
committed the corrupt act; and

30

16.4.3

The date on which this agreement will terminate in accordance

with the applicable provisions of this clause.

16.5

Without prejudice to its other rights or remedies in terms of this

agreement or otherwise available in law, should RLM terminate this
agreement because of a corrupt act, RLM shall be entitled to
recover from PREFERED BIDDER the greater of:-

16.5.1 The amount of value of the gift , consideration or commission which

is the subject of the corrupt act; and

16.5.2 Any direct losses sustained by RLM in consequence of any breach

of this clause by SERVICE PROVIDER.

16.5.3 PREFERED BIDDER shall notify RLM immediately if any director or

manager or person in a position of authority, becomes aware at any
time of any corrupt act in the award of this contract or during the
term of this contract or becomes aware that any official of RLM is
seeking or has sought to solicit any improper inducement or
gratification from PREFERED BIDDER or from any of its
shareholders or any sub-PREFERED BIDDER or any affiliate of
any of them (or anyone employed by or acting on behalf of any of
them).
17. BREACH AND TERMINATION

17.1 In the event that either party breached any provision of this
agreement; and

17.2. The breaching party is RLM, then in such event PREFERED

BIDDER shall give RLM thirty (30) days written notice to rectify

31

such breach failing which PREFERED BIDDER shall be entitled to

cancel the agreement or claim specific performance and damages
save where specifically prohibited herein.
17.3. The breaching party is PREFERED BIDDER , then in such event
RLM shall give PREFERED BIDDER thirty (30) days written notice
to rectify such breach failing which RLM shall be entitled, without
prejudice to their common law rights and such other remedies as
are provided for herein, to cancel this agreement or to claim
specific performance and in all cases to claim any damages
suffered.

17.4.

Notwithstanding the a foregoing, RLM shall not be required to give

any notice to PREFERED BIDDER in the event that:
17.4.1. The breach related to any breach of clauses 17 above; or

17.4.2. RLM has given PREFERED BIDDER written notice to remedy

any breach on one or more occasions in any 6 (six) month
period.

18. CONSEQUENCES OF BREACH OR TERMINATION

18.2. Upon termination of the agreement for any reason whatsoever the
PREFERED BIDDER shall on demand return to the other party all
of the other partys documents confidential information and project
documentation which it has not contractual right to retain.

19. GENERAL CLAUSES

19.2. If any one or more of the provisions of this agreement should be

held to be invalid or unenforceable, the validity and enforceability of

32

all other provisions of this agreement will not be affected thereby,

and without affecting the generality of the a foregoing the parties
agree to negotiate with each other to arrive at an amendment to this
agreement which would restore the parties, as far as possible, to
the position contemplated by the parties at the time this agreement
was entered into and which amendment is legal and enforceable.

19.3. No indulgence or relaxation of any of the provisions of this

agreement by their parties will constitute a waiver or abandonment
of such partys rights to require strict and punctual performance of
all of the provisions of this agreement.

19.4. A waiver by either party of a breach of any provision of this

agreement will not be, or deemed to be, a continuing waiver in
respect of a similar breach committed on a later occasion;

19.5. This agreement is the sole agreement between the parties and no
variation, consensual termination or waiver of this agreement shall
be valid and binding unless reduced to writing and signed by both
parties;

19.6. This agreement represents the entire understanding and agreement

between

the

parties

and

supersedes

any

prior

proposal,

representation of agreement, written or oral;

19.7. Any provision of this agreement that is unlawful, void or for any
reason unenforceable will be deemed severable form and will in no
way affect the validity or enforceability of the remaining provisions
of the agreement;

33

19.8. This agreement shall in all respect be construed, interpreted and be

governed by the laws of the Republic of South Africa.

20.PRINCIPLES

20.1. The Parties undertake to adhere to the principles and any

arrangements referred to in this agreement in good faith to
each other and undertake to act in the best interest of the
Parties and their mutual interest.

20.2. The contents of this agreement shall be valid and binding on

the Parties unless agreed otherwise in writing by the Parties.

20.3. Each of the Parties to the agreement undertakes on behalf of

itself to render its full cooperation and assistance. This will be
within the parameters of the terms of this agreement and any
terms of reference or mandate applicable from time to time
towards the understanding contained in this agreement.

21. VIS MAJOR

21.1. If circumstances arise for which the PREFERED BIDDER is not
responsible and which make it impractical or impossible for the
PREFERED BIDDER to perform the service in the normal manner as
contemplated by Parties in accordance with this Agreement in whole
or in part, then the PREFERED BIDDER shall promptly notify RLM.

21.2. The RLM shall pay to the PREFERED BIDDER such additional
fees and expenses as may be agreed as appropriate to the work
undertaken by the PREFERED BIDDER in providing the necessary
services.

34

21.3. In the event certain services have to be suspended, the time for the
completion shall be extended by the extent of the delay plus a
reasonable period for their resumption.
21.4. Should a Party be unable to fulfil a material part of its obligations
under the agreement for the period in the excess of thirty (30) days
due to viz major, then either party shall in the sole discretion have
the right to terminate the agreement by written notice to the other
party.
22. WHOLE AGREEMENT
22.1. This agreement constitute the whole agreement between the
parties as to the subject matter hereof and no agreement,
representation or warranty between the Parties other than set out
herein shall be binding on the Parties.

23. VARIATION
23.1. No addition to, amendment, consensual cancellation or novation of
this agreement

and no waiver of any right arising from this

agreement or its breach or termination shall be of any force or effect

unless reduced to writing and signed by the Parties.

24. DISPUTE RESOLUTION

24.1. Settlement
24.1.1.

The Parties shall negotiate in good faith with a view to settle

disputes or claim arising out of or relating to this Agreement
and may not initiate any further proceedings until either Party
has by written notice to the other, declare that such

35

negotiation has failed and the matter be referred to

Mediation.

24.1.2

The Party referring the dispute to Mediation, shall within

fourteen (14) days of the parties having failed to resolve the
dispute, submit to the other Party in writing the names and
occupation of three persons proposed by it to act as Mediator
and request the other Party to agree to the appointment of
any one of them in writing within seven (7) business days of
receipt of such notice.

24.2. Mediation

24.2.1.

Any such disputes or claim, which cannot be settled between

the two Parties may be referred by the Parties, without legal
representation to Mediation by a single Mediator.

24.2.2.

The Mediator shall be selected by agreement between the

Parties and in the event of the Parties being unable to agree
upon the appointment of a Mediator, such Mediator, shall
upon written request by either Party within seven (7) days of
their failure to so agree, be appointed by the Chairperson of
the Arbitration Foundation of South Africa (AFSA).

24.2.3.

The Mediator shall use every endeavor to facilitate a

settlement of a dispute within fourteen (14) days of such
appointment.

24.2.4.

Should the Parties, notwithstanding such Mediation, fail to

reach a settlement within the aforesaid fourteen (14) days or
such longer period as the Parties may agree, the Mediator

36

shall within seven (7) business days thereafter express an

opinion on the matter in writing and furnish each Party with a
copy thereof. Such opinion shall be binding on the Parties
unless either Party refers the matter to Arbitration which
Arbitration shall be determined in accordance with the South
African Arbitration Act of 1995, as amended from time to
time.

25.

Arbitration/Litigation

25.1. Should an amicable settlement and mediation fail, the Parties then
agree to submit any dispute or difference between them arising out
of this Agreement to conciliation or arbitration to the Arbitration
Foundation of Southern Africa (AFSA).

25.2. The Parties shall submit the dispute to AFSA upon the terms set by
the AFSA Secretariat. Failing such resolution, the dispute, if arbitral
in law, shall be finally resolved in accordance with the Rules of
AFSA by an Arbitrator or Arbitrators appointed by the Foundation.

25.3. The Award of the Arbitrator shall be final and binding upon all the
parties to the dispute unless any party wishes to take the Award on
review.
25.4. Notwithstanding any such differences, disputes or referral to
Arbitration, both parties shall continue to carry out their obligations
under this agreement pending the resolution of such differences or
dispute unless otherwise determined.

37

26.

GOVERNING LAW

26.1. This Agreement and the relationship of the Parties in connection

with the subject matter of this Agreement shall be governed and
determined in accordance with the laws of South Africa.

27.

DOMICILIUM CITANDI ET EXECUTANDI

27.1 The parties hereto respectively choose domicilium citandi et
executandi for all notices, demands process or communication
intended for either party and for all purposes of and in connection
with this agreement, as follows:-

RLM:

159 BEYERS NAUDE STREET

MISSIONARY MPHENI HOUSE
RUSTENBURG
0300
TEL: 014 590 3111
FAX: 014 590 3300

SERVICE PROVIDER: MMELA INVESTMENTS HOLDINGS (PTY) Ltd

BOX 73267
PRETORIA
0400
TEL: 012 349 1886/7
FAX: 086 608 7832
27.1. The parties be entitled to change their domicilium from time to time,
provided that new domicilium selected by it shall be situated in the
Republic of South Africa, shall be an address other than a box
number, and any such change shall only be effective upon receipt
of notice in writing by the other party of such change.

38

27.2. A notice of communication sent by one party to another shall,

unless otherwise proved, be deemed to be received:

27.2.3.

On the same day, if delivered by hand;

27.2.4.

On the same day, if sent by telefax transmission, the telefax

numbers of the parties outlined above.

27.3. On the 7th (seven) day after posting, if sent by prepaid registered
mail;

27.4. Any notice which actually comes to the attention of any member of
PREFERED BIDDER or the Municipal Manager or RLM shall be
effective notwithstanding the address it was delivered to or the
methods of delivery used

28. RELAXATION

28.1. No latitude, extension of time or other indulgence which may be given

or allowed by one Party to the other Party in respect of the
performance of any obligation hereunder or the enforcement of any
right arising here from and no single or partial exercise of any right by
such former Party shall under any circumstance be construed to be an
implied consent by such Party or operate as a waiver of, a novation of,
or otherwise affect any of that Partys rights in terms of or arising from
this agreement or stop such Party from enforcing, at any time and
without notice, strict and punctual compliance with each and every
provision thereof.

39

29. INDEPENDENT PARTIES

29.1. Nothing in this agreement shall constitute a partnership, join

venture, agency or employment agreement between the parties
hereto and neither party shall have the authority or power to bind or
contract in the name of or to create a liability against other in any
way for any purpose.

40

30. SIGNATURES
THUS SIGNED AT RUSTENBURG ON THIS THE____DAY
OF_______________2015

________________________________
MR BHEKI KHENISA
MUNICIPAL MANAGER
WITNESSES:

1.

____________________

2.

____________________

THUS SIGNED AT RUSTENBURG ON THIS THE____DAY

OF_______________2015

______________________________________________
MOHOBI WILSON RAMATSETSE
(Signatory herein warrants that is duly Authorised
to sign hereto for the above SERVICE PROVIDER)
WITNESSEES:
1.

_____________________

2.

_____________________

41