APPENDIX F PPP Agreement - GTAC F PPP Agreement.docx · Web viewpari passu . with the voting Equity held by the Shareholders who are not Black People or Black Enterprises; and. the

APPENDIX F

PUBLIC PRIVATE PARTNERSHIP FOR NATIONAL FLEET SERVICES FOR THE NATIONAL DEPARTMENT OF TRANSPORT OF THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA

between

THE NATIONAL DEPARTMENT OF TRANSPORT

and

[PRIVATE PARTY) (RF) (PTY) LTD

[DATE]

TABLE OF CONTENTS

PARAGRAPH DESCRIPTION PAGENUMBER NUMBER

1 PARTIES.......................................................................

2 INTRODUCTION.............................................................

3 DEFINITIONS.................................................................

4 INTERPRETATION........................................................

5 APPOINTMENT.............................................................

6 PROJECT DOCUMENTS..................................................

7 SERVICES....................................................................

8 SCOPE OF SERVICES....................................................

9 GENERAL OBLIGATIONS...............................................

10 QUASI-CONTRACTUAL RELATIONSHIP...........................

11 PRIVATE PARTY WARRANTIES......................................

12 NDoT WARRANTIES.....................................................

13 PRIVATE PARTY INDEMNITIES.......................................

14 PROCESS IN THE EVENT OF AN INDEMNITY CLAIM.........

15 LIMITATIONS ON LIABILITY...........................................

16 CONSENTS..................................................................

17 DURATION OF AGREEMENT..........................................

18 PROVISION OF THE SERVICES.......................................

19 SERVICE LEVELS..........................................................

i

TABLE OF CONTENTS

PARAGRAPH DESCRIPTION PAGENUMBER

NUMBER

20 PROCESSES & PROCEDURES.........................................

21 MANAGEMENT INFORMATION SYSTEM..........................

22 FUEL...........................................................................

23 PROBLEM, NEGATIVE TREND IDENTIFICATION AND OPTIMISATION............................................................

24 PERFORMANCE BOND..................................................

25 USER SATISFACTION SURVEY.......................................

26 OBLIGATIONS OF THE NDoT.........................................

27 FINANCIAL PROVISIONS...............................................

28 INSURANCE.................................................................

29 COMPENSATION EVENT................................................

30 FORCE MAJEURE..........................................................

31 NDoT VARIATIONS.......................................................

32 PRIVATE PARTY VARIATIONS........................................

33 OPERATIONAL CHANGES..............................................

34 REVIEW OF THE AGREEMENT........................................

35 TERM VEHICLES EXCLUSIVITY......................................

36 PERSONNEL..................................................................

37 COMMITTEES...............................................................

38 MONITORING AND INSPECTION.....................................

ii

TABLE OF CONTENTS


NUMBER

39 OCCUPATIONAL HEALTH AND SAFETY...........................

40 OWNERSHIP IN THE PRIVATE PARTY.............................

41 PRIVATE PARTY MANAGEMENT CONTROL......................

42 PRIVATE PARTY SKILLS DEVELOPMENT.........................

43 ENTERPRISE AND SUPPLIER DEVELOPMENT..................

44 LOCAL SOCIO ECONOMIC IMPACT.................................

45 TARGET GROUP REPORT..............................................

46 TERMINATION FOR NDoT DEFAULT...............................

47 TERMINATION FOR PRIVATE PARTY DEFAULT................

48 TERMINATION FOR FORCE MAJEURE..............................

49 TERMINATION FOR CORRUPT ACTS...............................

50 TERMINATION COMPENSATION.....................................

51 EFFECTS OF TERMINATION...........................................

52 NDoT OPTION TO ACQUIRE VEHICLES ON TERMINATION.........................................................................

53 INFORMATION AND AUDIT ACCESS...............................

54 STORAGE OF PROJECT DATA.........................................

55 INTELLECTUAL PROPERTY OF THE NDoT........................

56 CESSION AND DELEGATION..........................................

57 CHANGES IN CONTROL AND BLACK EQUITY...................

iii

TABLE OF CONTENTS


NUMBER

58 DISPUTE RESOLUTION.................................................

59 FAST-TRACK DISPUTE RESOLUTION..............................

60 GOVERNING LAW AND JURISDICTION............................

61 AMENDMENTS.............................................................

62 WAIVER......................................................................

63 ENTIRE AGREEMENT....................................................

64 CONFLICTS WITH OTHER CONTRACTS...........................

65 SEVERABILITY.............................................................

66 REPRESENTATIVES......................................................

67 GOVERNANCE STRUCTURES.........................................

68 COUNTERPARTS..........................................................

69 NOTICES AND LEGAL SERVICE......................................

70 PUBLIC RELATIONS AND NDoT......................................

71 CONFIDENTIALITY........................................................

72 COSTS AND EXPENSES.................................................

iv

SCHEDULES

SCHEDULE DESCRIPTIONNUMBER

[THIS IS AN INDICATIVE LIST AND WILL BE COMPLETED/UPDATED]

1. Short Term Vehicle Agreement

2. Short Term Vehicle Schedule

3. Base Case Financial Model

4. Call Centre

5. Target Group Terms

6. Description of Client Function

7. Key Personnel Positions

8. Long Term Vehicle Agreement

9. Long Term Vehicle Schedule

10. Management Information System

11. National User Departments

12. Service Level Agreement

13. Service Procedures

14. Payment Mechanism

15. Penalty Regime

16. Operations Procedures Manual

17. Form of Performance Bond

18. Benchmarking Terms of Reference

19. Reports

20. Governance Structures

21. Shareholders’ Agreement

22. Fuel Provisions

23. Medium Term Vehicle Agreement

24. Medium Term Vehicle Schedule

i

AgreementVersion 1 21.13.2013

1 PARTIES

1.1 THE NATIONAL DEPARTMENT OF TRANSPORT; and

1.2 [PRIVATE PARTY] (RF) (PTY) LTD.

2 INTRODUCTION

2.1 The NDoT wishes to procure a national fleet service by means of a public

private partnership.

2.2 Accordingly, the NDoT issued the RFP (as hereinafter defined), inviting

proposals from the private sector for provision, maintenance and financing of a

national fleet service.

2.3 Pursuant to a competitive tender process, the Private Party was selected as the

preferred bidder and its proposal negotiated, pursuant to which the NDoT has

requested the Private Party, and the Private Party has agreed to undertake and

provide the Services on the terms and conditions set out in this Agreement.

3 DEFINITIONS

3.1 In this Agreement, unless the context otherwise requires, the following

capitalised terms shall have the meanings assigned to them below and the

cognate expressions shall have corresponding meanings:-

3.1.1 “Abuse” any act or omission by a NUD Employee which causes physical

damage to a Long Term Vehicle, Medium Term Vehicle or a Short Term

Vehicle and which arises out of the wilful misconduct or grossly

negligenceof such employee;

3.1.2 “Accessory” - any item of equipment that is not fitted as standard by the

Vehicle’s manufacturer, that is required for a specific application by the

NUDto fulfil its operational requirements and that, by its nature, will not

require significant or regular maintenance during the period of hire of the

Vehicle concerned including, without limitation,emergency lights, car

radios, canopies, tow bars and items complying with such characteristics,

1

NDoT AgreementRFP Version: 2018

but excluding Excluded Attachments;

3.1.3 “Active Black Equity” - in relation to any Black Equity or in relation to

any issued shares in the share capital of any Subcontractor held by Black

People and/or Enterprises, means Black Equity or shares is/are held by

Black People and/or Black Enterprises who will participate directly in the

day-to-day management and operations of the Project;

3.1.4 by the NUD in respect of the request for an Medium Term Vehicle/s

and/or Short Term Vehicle/s;

3.1.5 “Affiliate” - any person that directly or indirectly through any one or more

intermediaries controls, is controlled by or is under common control with

any person, where “Control” means the ability to direct or cause the

direction of the business affairs and management policies or practices of a

person (but excluding the Subcontractors from this definition);

3.1.6 “Agreement” - this agreement between the Parties, together with

theSchedules;

3.1.7 “Annual Skills Development Commitment”- has the meaning set forth

in Schedule 5 (Target Group Terms);

3.1.8 “Base Case Financial Model” means the financial base case for the

Project attached to this Agreement at Schedule 3 (Base Case Financial

Model titled [ ] PPP Project - Base Case Financial Model Version [ ]) in

electronic format on a CD, which model incorporates the forecasted cash

flow statements of the Private Party including all expenditure, revenues,

taxation and financing of the Services together with the income

statements and balance sheets for the Private Party over the Project

Term, and details of all assumptions, calculations and methodology used

in the compilation thereof;

3.1.9 “BEE”- Black Economic Empowerment;

3.1.10 “BEE Codes of Good Practice”- the codes governing the

implementation of BEE and promulgated on 9 February 2007 in

2


accordance with the provisions of the Broad Based Black Economic

Empowerment Act 53 of 2003, as amended from time to time;

3.1.11 “BBBEE”- Broad-based Black Economic Empowerment;

3.1.12 “BBBEE Scorecard”- the balance scorecard contained in Schedule 5

(Target Group Terms);

3.1.13 “Black Enterprise”- an enterprise that is at least 50,1% (fifty comma one

percent) beneficially owned by Black People and in which Black People

have Management Control. Such beneficial ownership may be held

directly or through other Black Enterprises;

3.1.14 “Black Equity” - the voting Equity held by Black Shareholders from time

to time;

3.1.15 “Black Person/ People” - all African, Coloured or Indian persons who are

South African citizens by birth or by descent or who were naturalised prior

to the commencement of the Constitution of the Republic of South Africa

Act200 of 1993. In addition, the term also includes black people who

became South African citizens after the commencement of the

Constitution of the Republic of South Africa Act 108 of 1996 but who

would have been able to be naturalised prior to this, were it not for the

apartheid laws which prohibited naturalisation of certain persons;

3.1.16 “Black Shareholder” - any Shareholder that is a Black Person or a Black

Enterprise;

3.1.17 “Black Women” - African, Coloured and Indian Women;

3.1.18 “Black Women Enterprise” - an enterprise that is at least 30% (thirty

percent) beneficially owned by Black Women and in which Black Women

have Management Control. Such beneficial ownership may be held

directly or through other Black Women Enterprises;

3.1.19 “Book Value”– for the purposes of Clause 52, the original Vehicle asset

acquisition cost (inclusive of any discounts offered at the time of

3


purchase) less the utilised value of the Vehicle asset either time or

kilometre based.

The life span definition is linked to the technologies used by vehicle

manufacturers, vehicle warranties, service and maintenance plans offered

by vehicle manufacturers. The life span of any Vehicle can be amended

by agreement between the NDoT and the Private Party;

3.1.20 “Business Day” - any day except a Saturday, Sunday or public holiday in

South Africa;

3.1.21 "Business Hours"- the hours from 07h00 to 17h00 on Business Days;

3.1.22 “Call Centre”- the call centre, including a held desk as detailed in

Schedule4 to meet the Service Levels to be established and operated by

the Private Party for the purposes of receiving service calls from the

NDoT, NUDs and NUD Employees;

3.1.23 “Capital Expenditure” - any expenditure treated as capital expenditure

under IFRS;

3.1.24 “Change in Control” - any change whatsoever in Control whether

effected directly or indirectly;

3.1.25 “Companies Act” - the Companies Act, 2008 as amended from time to

time;

3.1.26 “Compensation Event” - any Abuse by an NUD Employee that is not

covered by the Insurance, provided that the the Private Party shall have

procured all the Insurances and shall not be in breach of any provisions of

such Insurance, other than as result of breach by theNDoT/NUD;

3.1.27 “Confidential Information” - any information or data irrespective of the

form or media in which it may be stored, accessible to a Party as a

consequence of this Agreement or any Project Document, which is

protected from disclosures by virtue of:-

3.1.27.1 the Promotion of Access to Information Act, 2000; and/or

4


3.1.27.2 is agreed by the Parties as at the Signature Date or prior to disclosure to

the other party to be confidential in nature on grounds of commercial

sensitivity; and/or

3.1.27.3 being information or data which one Party provides to another in terms of

this Agreement or a Project Document and in which the Party would

have a reasonable expectation of confidentiality,

but shall not include information which:-

3.1.27.4 is revealed to a Party’s employees, professional advisers, the Lenders or

their professional advisers, provided thatthe Party’s relevant

employees, professional advisers, the Lenders or their professional

advisersare made aware of the content of Clauses70 (PUBLIC

RELATIONS AND NDoT) and71 (CONFIDENTIALITY) and have

agreedto abide by the terms thereof and each Party procures that its

employees, professional advisers, Lenders and their professional

advisers shall, prior to the disclosure or their receipt of the

Confidential Information, complete, sign and deliver a Confidentiality

Undertaking in favour of the disclosing Party; or

3.1.27.5 is disclosed as part of any attempt to resolve a dispute pursuant to Clause

58 (DISPUTE RESOLUTION) or Clause 59(FAST-TRACK

DISPUTE RESOLUTION); or

3.1.27.6 is made available or published by a Party as required by Law or any

regulatory authority including the rules of any recognised securities

exchange; or

3.1.27.7 is or becomes public knowledge (otherwise) than by reason of breach of

Clause 71 (CONFIDENTIALITY); or

3.1.27.8 was in the possession of either Party without restriction in respect of its

disclosure before receiving it from the other Party; or

3.1.27.9 is received from a third party who lawfully acquired it and who is under no

obligation restricting its disclosure; or

5


3.1.27.10 is required to be disclosed to National Treasury or Parliament pursuant to

the provisions of the PFMA; or

3.1.27.11 is required to be disclosed to the Auditor-General pursuant to the Public

Audit Act, 25 of 2004; or

3.1.27.12 is provided to potential lenders, provided that they are made aware of the

contents of Clause 71(CONFIDENTIALITY) and agree to abide by it

and each Party procures that its employees, professional advisers,

Lenders and their professional advisers shall, prior to the disclosure

or their receipt of the Confidential Information, complete, sign and

deliver a Confidentiality Undertaking in favour of the disclosing

Party;or

3.1.27.13 is disclosed by the NDoT to a Responsible Authority; or

3.1.27.14 is disclosed to a third party with the prior written consent of the Party to

whom such information is confidential to; and

“Confidential” shall have a corresponding meaning;

3.1.28 “Control” - in relation to any entity, the ability directly or indirectly to direct

or cause the direction of the votes attaching to the majority of its issued

shares or interests carrying voting rights, or to appoint or remove or cause

the appointment or removal of any directors (or equivalent officials) or

those of its directors (or equivalent officials) holding the majority of the

voting rights on its board of directors (or equivalent body);

3.1.29 “Consents” - all consents, permits, clearances, authorisations, approvals,

rulings, exemptions, registrations, filings, decisions, licences, permissions

required to be issued by or made with any Responsible Authority in

connection with the performance of any of the Services;

3.1.30 “Contract Year” -each successive 12 (twelve) month period during

Project Term, as measured from the Effective Date and each anniversary

thereof thereafter;

6


3.1.31 “Corrupt Act”:-

directly or indirectly offering, giving or agreeing to give to the NDoT, any

NUD or any other organ of state or to any person employed by or on

behalf of the NDoT, any NUD or any other organ of state any gift or

consideration of any kind as an inducement or reward:-

3.1.31.1 for doing or not doing (or having done or not having done) any act in

relation to the obtaining or performance of this Agreement or any

other agreement with the NDoT, any NUD or any other organ of

state; or

3.1.31.2 for showing or not showing favour or disfavour to any person in relation to

this Agreement or any other agreement with the NDoT, any NUD or

any other organ of state;

3.1.31.3 entering into this Agreement or any other agreement with the NDoT, any

NUD or any other organ of state in connection with which

commission had been paid or had been agreed to be paid by the

Private Party or on its behalf, or to its knowledge, unless before the

relevant agreement is entered into particulars of any such

commission and the terms and conditions of any such agreement

for the payment of such commission have been disclosed in writing

to the NDoT;

committing any offence:-

3.1.31.4 under any Law from time to time dealing with bribery, corruption or

extortion;

3.1.31.5 under any Law creating offences in respect of fraudulent acts; or

3.1.31.6 at common law, in respect of fraudulent acts in relation to this Agreement

or any other agreement with the NDoT, any NUD or any other public

body; or

3.1.31.7 defrauding or attempting to defraud or conspiring to defraud the NDoT,

any NUD or any other organ of state;

7


3.1.32 “CPI”- the weighted average of the consumer price index as published

from time to time by Statistics South Africa, which is referred to as "CPI –

all urban areas" in Statistical release PO141.1, provided that if, after the

Effective Date:

3.1.32.1 such index ceases to be published; or

3.1.32.2 the Department and the Private Party agree that, due to a change in

circumstances or a change in the basis of calculation, and pursuant

to such changes, the index is no longer representative,

then, the Department and the Private Party will use such other official

information or index as may be available and acceptable to them.

If the Department and the Private Party cannot reach agreement as

aforesaid, then, for the purposes of the PPP Agreement, an alternative

index shall be determined by a majority decision of a panel comprised of

economists and actuaries, not exceeding 3 (three) in number and having

no interest in the outcome of the determination to be made (provided that

at least one such person shall be an economist and one shall be an

actuary) ("the CPI Panel") appointed by the Chief Economist of the South

African Reserve Bank. The determination by the CPI Panel (including any

determination by the CPI Panel as to the date from which any alternative

index shall take effect) shall be binding on the Parties. The cost of

obtaining such determination shall be borne by the Private Party;

3.1.33 “Default Interest Rate” -the Prime Rate less 2% (two percent);

3.1.34 “Disabled Persons” - persons who have a long-term or recurring physical

or mental impairment which substantially limits their prospects of entry

into or advancement in, employment;

3.1.35 “Disabled Persons Enterprise” - an Enterprise that is at least 50,1%

(fifty comma one percent) beneficially owned by Disabled Persons. Such

beneficial ownership may be held directly or through other Disabled

Persons Enterprises;

8


3.1.36 “Effective Date” –the 150th (one hundered and fifteeth) day after the

Signature Date;

3.1.37 “EME” - shall have the meaning assigned thereto in the BEE Codes of

Good Practice;

3.1.38 “Employment Equity Act” - Employment Equity Act, 55 of 1998 as

amended from time to time;

3.1.39 “Enterprise” - a company, close corporation, juristic person, trust,

partnership, joint venture or associationor sole proprietor orany other

replacement entity contemplated in the Companies Act,whether or not

having separate legal personality;

3.1.40 “Equity” - the entire issued share capital of the Private Party;

3.1.41 "Excluded Attachment” -any item of equipment recorded as such in

terms of this Agreement and which is owned by the NDoT or any NUD

and is not subject to any Services, Service Levels or financing by the

Private Party;

3.1.42 “Expiry Date” - the 8th (eighth) or 5th (fith) anniversary of the Effective

Date;

3.1.43 “Financial Model” - theBase Case Financial Model for the Project as

amended and/or updated from time to time, during the Project Term, by

the Private Party, by agreement with the Lenders and the NDoT;

3.1.44 “Financial Year” - the financial year of the NDoT, being 1 April in one

year to 31 March in the next succeeding year, other than in respect of the

first year after Effective Date which shall commence on the Effective Date

and end on 31 March of the next year;

3.1.45 "Function"-the specified function of the Long Term Vehicle, Medium

Term Vehicle Short Term Vehicle, as the case may be based on the broad

functions set out in Schedule6(Description of Client Function). When

determining whether the NDoT has breached a provision of this

9

Brenda Malongete, 20/07/18,

Depends on which option NDoT selects after Evaluation


Agreement in respect of a specific vehicle, the NDoT shall, amongst

others, be absolved from liability if the loss arose solely in the course of

such vehicle being operated in accordance with its Function;

3.1.46 “Force Majeure” -in respect of any Party, any circumstance beyond

itsreasonable control and to the extent that such events are uninsurable,

including war, civil war, armed conflicts or terrorism or nuclear

contamination unless the Private Party or any Subcontractor is the source

of cause of the contamination, which directly causes the Party claiming

Force Majeure to be unable to comply with all or a material part of its

obligations under this Agreement;

3.1.47 “Good Industry Practice” - applying in relation to the manner in which

the Services are rendered, the standards, practices, methods and

procedures conforming to applicable Law, 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 similar circumstances;

3.1.48 “Help Desk” - the help desk to be set up by the Private Party as part of

the Call Centre in accordance with the provisions of Schedule 12 (SLA);

3.1.49 “IFRS”- the International Financial Reporting Standards, as amended from

time to time;

3.1.50 “Independent Expert”:-

3.1.50.1 an accountant of not less than 10 (ten) years professional experience or

investment banker agreed to between the Parties, and failing

agreement nominated (at the request of either Party) by the

President for the time being of the South African Institute of

Chartered Accountants: Northern Region, if the matter relates

primarily to a financial matter; or

3.1.50.2 an attorney or advocate of not less than 10 (ten) years professional

experience agreed to between the Parties, and failing agreement

nominated (at the request of either Party) by the Chairman for the

10


time being of the Law Society of the Northern Provinces, if the

matter relates primarily to a legal matter; or

3.1.50.3 an engineer or architect of not less than 10 (ten) years professional

experience agreed to between the Parties and failing agreement

nominated (at the request of either Party) by the President for the

time being of the Engineering Council of South Africa, if the matter

relates primarily to an engineering matter; or by the President for the

time being of the South African Institute of Architects, if the matter

relates primarily to an architectural matter; or

3.1.50.4 a facilities manager of not less than 10 (ten) years professional

experience agreed to between the Parties and failing agreement

nominated (at the request of any Party) by the President for the time

being of South African Facilities Management Association, if the

matter relates primarily to a facilities management matter;

3.1.51 “Insurances” -the insurances that the Private Party is obliged to procure

in accordance with Clause 28 (INSURANCE);

3.1.52 “Intellectual Property” -all intellectual property whatsoever used from

time to time in connection with the Services whether capable of

registration, registered or not;

3.1.53 “Key Personnel Positions” -those positions described in Schedule 7

(Key Personnel Positions);

3.1.54 “Law”:-

3.1.54.1 the common law;

3.1.54.2 all applicable statutes, statutory instruments, by-laws, regulations,

ordinances, orders, rules and other secondary provincial or local

legislation, treaties, directives and codes of practice having force of

law in South Africa or the Province or locality within which the

Project is conducted; and/or

11


3.1.54.3 judicial decisions, notifications and all similar directives made pursuant

thereto with which the NDoT and/or the Private Party is bound to

comply;

3.1.55 “Lenders” -any person/s providing financing to the Private Party in

respect of the Project;

3.1.56 “Long Term Vehicle”- a New Vehicle, which is leased by the /NUD from

the Private in terms of full terms of a full maintenance lease, as defined in

Schedule 8(Long Term VehicleAgreement);

3.1.57 ”Long Term Vehicle Agreement” -the terms and provision relating to the

lease of Long Term Vehicles stipulated in Schedule 8;

3.1.58 “Long TermVehicle Schedule” - a schedule substantially in the format of

Schedule 9 – to be signed by the NUD in respect of the request for any

Long Term Vehicle;

3.1.59 “Licensed Intellectual Property” -all Intellectual Property to be used

under licence from any third party by the Private Party or the

Subcontractors in execution of the Services;

3.1.60 “Management Control” -in relation to an Enterprise, the ability to direct or

cause the direction of the business and management policies or practices

of the Enterprise;

3.1.61 "Medium Term Vehicle” - any vehicle/s made availble by the Private

Party to any NUD on an semi ad-hoc basis for more than 45 (fourty five)

days but less than one year whether with or without a licensed driver:

3.1.62 "Medium Term Vehicle Agreement” - the terms and provision relating to

the lease of Medium Term Vehicles stipulated in Schedule 23;

3.1.63 "Medium Term Vehicle Schedule” - a schedule substantially in the

format of Schedule 24 – to be signed

3.1.64 “Minimum Black Equity” - has the meaning set forth in Schedule 5

(Target Group Terms);

12


3.1.65 “MIS” - the Managment Information System to be provided by the Private

Party in accordance with Schedule 9 to meet the Service Levels.

3.1.66 “NDoT”- the National Department of Transport of the Government of the

Republic of South Africa as contemplated in section 7(2) and Schedule 2

of the Public Service Act, 1994;

3.1.67 “NDoT Default”- any of the following events:-

3.1.67.1 failure by an NDoT to make payment of any amount in excess of [average

of 3 (three) months Unitary Payment]; or

3.1.67.2 a breach by a NDoT of its obligations under this Agreement which

substantially frustrates or renders it impossible for the Private Party

to perform its obligations under this Agreementin respect if such

NUD for a continuous period of 20 (twenty) Business Days;

3.1.68 “New Vehicle” -any Vehicle which is acquired by the Private Party as new

from the manufacturer thereof to meet the NDoT’s requirements in terms

of this Agreement;

3.1.69 “NUD/s” - the National User Departments listed in Schedule 9;

3.1.70 “NUD/s Employee” - an employee of a NUD as notfied to the Private

Party by the NUD from time to time;

3.1.71 “Occupational Health and Safety Act” -the Occupational Health and

Safety Act, 1993 as amended from time to time;

3.1.72 “Operating Expenditure” -any expenditure treated as operating

expenditure under IFRS;

3.1.73 “Parties” -the Private Party and the NDoT;

3.1.74 “Payment Mechanism” - the mechanism in terms of which Unitary

Payment payable tothe Private Partyby the NDoT is governed as set out

in Schedule14(Payment Mechanism) hereto;

3.1.75 “Penalty/ies” - the penalty/ies denominated in Rand and payable by the

13


Private Party in terms of Schedule 15(Penalty Regime) for failure to meet

its obligations set out in the SLA, and Schedule 5 (Target Group Terms)

for failure to meet its Target Group obligations;

3.1.76 “Performance Bond” - performance bond be issued by the registerd

financial institution and to be delivered by thePrivate Pay to the NDoT in

accordance with Clause 24 (PERFORMANCE BOND);

3.1.77 “PFMA” -the Public Finance Management Act, 1 of 1999;

3.1.78 “Prime Rate” -the arithmetic mean of the publicly quoted prime rate of

interest (nominal annual compound monthly in arrears on a 365 day year,

irrespective of whether or not the year is a leap year) of the Reference

Banks, from time to time;

3.1.79 “Private Party” -[ ] (RF) (Pty) Ltd, registration number [ ], a private

company with limited liability incorporated in accordance with the

company laws of South Africa;

3.1.80 “Private Party Default” -any of the following events or circumstances:-

3.1.80.1 the Private Party accumulates Penalties in excess of R250 000.00 in any

Month;

3.1.80.2 any Service Failure that occurs more than twice in any 2 (two) months;

3.1.80.3 failure by any Private Party member of the Steering Committee to attend 2

(two) or more Steering Committee meetings in any Contract Year; .

3.1.80.4 failure by the Private Party to comply with its obligatIions in terms of

Clause 8.5;

3.1.80.5 the Private Party fails to obtain and maintain any Insurances as required

in terms of Clause 28 () and the SLA;

3.1.80.6 failure by the Private Party to comply with any material obligation

contemplated in terms of this Agreement;

3.1.80.7 any breach by the Private Party under any Project Documents;

14


3.1.80.8 the Private Party fails to pay any sum or sums due to the NDoT under this

Agreement (which sums are not in dispute) which, either singly or in

aggregate, exceed(s) R [](indexed to CPI) and such failure

continues for 40 (forty) Business Days from receipt by the Private

Party of a notice of non payment from the NDoT;

3.1.80.9 any arrangement, composition or compromise with or for the benefit of

creditors (including any voluntary arrangements as defined in the

Insolvency Act 1936 or the Companies Act) being entered into by or

in relation to the Private Party without the prior written consent of

the NDoT;

3.1.80.10 a liquidator, judicial manager or the like taking possession of or being

appointed over, or any judicial management, winding-up, execution

or other process being levied or enforced (and such other process

or executions not being discharged within 20 (twenty) Business

Days) upon the whole or any material part of the assets of the

Private Party (in any of these cases, where applicable, whether

provisional or final, and whether voluntary or compulsory);

3.1.80.11 the Private Party ceases to carry on business;

3.1.80.12 a resolution being passed or an order being made for the administration or

the judicial management, winding-up liquidation or dissolution of the

Private Party (in any of these cases, where applicable, whether

provisional or final and whether voluntary or compulsory);

3.1.80.13 the Private party disposes of a material portion of its undertakings or

assets;

3.1.80.14 the Private Party ceases to provide all or a substantial part of the Services

in accordance with this Agreement (other than as a consequence of

a breach by the NDoT of its obligations under this Agreement);

3.1.80.15 the Private Party fails to comply with any of its Target Group obligations in

terms of Clauses40 (OWNERSHIP IN THE PRIVATE PARTY), 41

(PRIVATE PARTY MANAGEMENT CONTROL), 42 (PRIVATE

15


PARTY SKILLS DEVELOPMENT, 43 (ENTERPRISE AND

SUPPLIER DEVELOPMENT), 44 (LOCAL SOCIO ECONOMIC

IMPACT) and 45 (TARGET GROUP REPORT as well as Schedule

5 (Target Group Terms);

3.1.80.16 the Private Party fails to comply with any of its obligations under Clause

56(CESSION AND DELEGATION);

3.1.81 “Private Party’s Representative” -the person appointed pursuant to the

provisions of Clause 66.2(Private Party’s Representative);

3.1.82 “Project” -the provision by the Private Party of the Services including,

inter alia, the operation, maintenance, insuranace and financing of the

Services pursuant to and in accordance with the provisions of this

Agreement;

3.1.83 ‘Project Data” -:

3.1.83.1 data provided by the NDoT, any NUD or any third party to the Private

Party, or otherwise received or collected by the Private Party,

relating to the NDoT orany NUD in respect of this Agreement; and

3.1.83.2 data specific to the Services which the Private Party generates,

processes, or supplies to the NDoT or any NUD in the performance

of the Services,

but excluding any derivative data which is created by the Private Party for

its own internal use, provided that should any dispute arise regarding the

nature of any data, it shall at all times be incumbent upon the Private

Party to prove the confidential or proprietary nature thereof;

3.1.84 “Project Documents”- the Shareholders’ Agreement or any agreement

concluded by the Private Party with any Subcontractor, Lender or othe

thrid party in relation to the Project;

3.1.85 “Project Term” -the period from the Signature Date to the Expiry Date or

the Termination Date whichever occurs first;

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3.1.86 “Public Audit Act” -the Public Audit Act of 2004 as amended from time to

time;

3.1.87 “QME” - shall have the meaning assigned thereto in the BEE Codes of

Good Practice;

3.1.88 “QSE” means an entity which qualifies to be measured under the

Qualifying Small Enterprise scorecard promulgated under the BEE Codes

of Good Practice;

3.1.89 “Rate Card”- the rate card setting out the current pricing for Vehicles, set

out in Schedule14(Payment Mechanism), as amended by the parties in

writing from time to time in accordance with the the Agreement;

3.1.90 “Reference Banks” -the four largest banks in South Africa by market

capitalisation, from time to time;

3.1.91 “Rental’ - the amount calculated in terms of the Rate Card in respect of

each Long Term Vehicle, Medium Term Vehicle and/or or Short Term

Vehicle, as the case may be,as amended by the parties in writing from

time to time in accordance with the the Agreement;;

3.1.92 “Responsible Authority” -any ministry, any minister, any organ of state,

any official in the public administration or any other governmental or

regulatory institution, commission, institution, entity, service utility, board,

agency, instrumentality or authority (in each case, whether national,

provincial or municipal) or any court, each having jurisdiction over the

matter in question, but excluding for all purposes the NDoT;

3.1.93 “RFP” - the request for proposals issued by the NDoT and dated

[_____________], inviting proposals from the private sector to bid to for

the national fleet services for the NDoT;

3.1.94 “Schedules” means the schedules to this Agreement, as may be

replaced and/or amended from time to time in accordance with the terms

of thisAgreement;

17


3.1.95 “Service Level Agreement”or“SLA” -the Service Level Agreement

attached hereto ascribed thereto in Schedule 12 (SLA);

3.1.96 “Service Levels” - the stipulated criteria applicable to the Services, as set

out in the SLA;

3.1.97 “Services” -the services to be provided by the Private Party to the NDoT

and NUDs in accorance with the SLA and all other rights and obligations

of the Private Party under this Agreement from time to time;

3.1.98 “Service Procedures” -the processes and procedures applicable to the

provision and acquisition of Services by the parties pursuant to this

Agreement, as set out in 13 (Service Procedures), as read with the

provisions of the SLA, providing that should there be any conflict between

the two schedules, the provisions of the SLA shall prevail;

3.1.99 “Shareholder Loans” -at any date, in relation to any financing (other than

the Equity and the financing under a Financing Agreement) made

available for the Project by the Shareholders, the principal debt and

interest unpaid at that date;

3.1.100 “Shareholders” -the holders of the Equity;

3.1.101 “Shareholders Agreement” - the agreement(s) between the

Shareholders and/or the Private Party in respect of the Equity and/or

Shareholder Loans, attached hereto as Schedule 21 (Shareholders

Agreement);

3.1.102 "Short Term Vehicle” - any vehicle/s made availble by the Private Party

to any NUD on an ad-hoc basis for less than 45 (fourty five) days whether

with or without a licensed driver:

3.1.103 "Short Term Vehicle Agreement” - the terms and provision relating to

the lease of Short Term Vehicles stipulated in Schedule 2;

3.1.104 "Short Term Vehicle Schedule” - a schedule substantially in the format

of Schedule 1 – to be signed

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3.1.105 “Signature Date” - the date of signature of this Agreement by the Party

last signing;

3.1.106 “Skills Development Plan” – skill development plan to be complied with

the Private Party and included in Schedule4(Target Group Terms);

3.1.107 “South Africa”- the Republic of South Africa;

3.1.108 “Steering Committee” - the steering committee to be established by

theParties in accordance with Clause 37.3;

3.1.109 “Subcontractors”- the counterparties of the Private Party to the

subcontracts including the [ ] appointed by the Private Party to

undertake any portion of the Services;

3.1.110 “Subcontracts”-the contracts entered into by the Private Party with its

Subcontractors;

3.1.111 “Target Group”-a Target Group Person or Target Group Enterprise (as

the case may be);

3.1.112 “Target Group Penalties”-the Penalties payable by the Private Paty in

terms of Schedules 5 (Target Group Terms) for failure to meet its

obligations as set out in Clauses 40 (OWNERSHIP IN THE PRIVATE

PARTY), 41 (PRIVATE PARTY MANAGEMENT CONTROL), 42

(PRIVATE PARTY SKILLS DEVELOPMENT, 43 (ENTERPRISE AND

SUPPLIER DEVELOPMENT), 44 (LOCAL SOCIO ECONOMIC IMPACT)

and 45 (TARGET GROUP REPORT as well as Schedule 5 (Target Group

Terms);

3.1.113 “Target Group Enterprise”-a Black Enterprise, Disabled Person

Enterprise, Women Persons Enterprise, Black Women Enterprises or

youth enterprise (as the case may be);

3.1.114 “Target Group Report”-the report issued to the NDoT by the Private

Partyquarterly during the Project Term setting out that information

specified in Clauses40 (OWNERSHIP IN THE PRIVATE PARTY), 41

19


(PRIVATE PARTY MANAGEMENT CONTROL),42 (PRIVATE PARTY

SKILLS DEVELOPMENT, 43 (ENTERPRISE AND SUPPLIER

DEVELOPMENT), 44 (LOCAL SOCIO ECONOMIC IMPACT) and

45(TARGET GROUP REPORTas well as Schedule 5(Target Group

Terms);

3.1.115 “Target Group Person”- a Black Person, Disabled Person, Women,

Black Woman and youth (as the case may be);

3.1.116 “Termination Date” - any date on which this Agreement is terminated in

accordance with its terms, other than by effluxion of time;

3.1.117 “Technical Risk Committee” - the steering committee to be established

by the NDoT in accordance with Clause 37.2;

3.1.118 “Training Obligations”- the Private Party's obligations in detailed in

Schedule 12 (SLA);

3.1.119 “Unitary Payment”- the monthly charges payable to the Private Party in

connection with the performance of its obligations included in the Services

as calculated in accordance with Schedule 14 (Payment Mechanism), less

those amounts that the NDoT is entitled to set-off in accordance with

Schedule 14(Payment Mechanism);

3.1.120 “Variations”- any variations to the Services in accordance with Clause 31

(NDoT VARIATIONS) and 32 (PRIVATE PARTY VARIATIONS);

3.1.121 “VAT”- any value-added tax levied in terms of the Value-Added Tax Act

89 of 1991 as amended from time to time, or any similar tax which is

imposed in place of or in addition to such tax;

3.1.122 “Vehicle” - a Long Term Vehicle, Medium Term Vehicle and/or an Short

Term Vehicle;

3.1.123 “Warranty Period”–the original warrany perod inrespect of any Vehicle

as stipulated by the Vehicle manufacturer;

3.1.124 “Woman” -a female South African citizen and “Women” shall be

20


construed accordingly;

3.1.125 “Woman Enterprise” -an Enterprise controlled by Women Shareholders;

and

3.1.126 “Woman Shareholder” -a shareholder who is a Woman or Woman

Enterprise.

4 INTERPRETATION

This Agreement shall be interpreted according to the following provisions, unless the

context requires otherwise:-

4.1 references to the provisions of any Law shall include such provisions as

amended, re-enacted or consolidated from time to time in so far as such

amendment, re-enactment or consolidation applies or is capable of applying to

any transaction entered into under this Agreement;

4.2 references to “indexed to CPI” in relation to any amount of money shall mean

that such amount has been expressed in [ ] prices and shall be escalated

annually as at [ ]l each year, provided that a special calculation shall be done

to provide for escalation for the first period from [ ] to that [ ] that follows

immediately after the Effective Date with reference to the then most recent

publication of the CPI, subject to adjustments for any rebasing or recalculation

thereof in accordance with the definition of CPI;

[Note: Only the non capital cost components of the Unitary Payment will be

increased by CPI. Private Party to make proposals as to how best to limit

increases in the Unitary Payment.]

4.3 references to “Month” shall be to a calendar month;

4.4 references to “Parties” shall include the Parties’ respective successors-in-title

and, if permitted in this Agreement, their respective cessionaries and assignees;

4.5 references to a “person” shall include an individual, firm, company, corporation,

juristic person, Responsible Authority, and any trust, organisation, association

or partnership, whether or not having a separate legal personality;

21


4.6 references to any “Responsible Authority” or any public or professional

organisation shall include a reference to any of its successors or any

organisation or entity, which takes over its functions or responsibilities;

4.7 references to “Clauses”, “sub-Clauses” and “Schedules” are references to the

Clauses, sub-Clauses and Schedules of this Agreement;

4.8 the headings of Clauses, sub-Clauses and Schedules are included for

convenience only and shall not affect the interpretation of this Agreement;

4.9 the Schedules to this Agreement are an integral part of this Agreement and

references to this Agreement shall include the Schedules;

4.10 the Parties acknowledge that each of them has had the opportunity to take legal

advice concerning this Agreementand agree that no provision or word used in

this Agreement shall be interpreted to the disadvantage of either Party because

that Party was responsible for or participated in the preparation or drafting of

this Agreement or any part of it;

4.11 words importing the singular number shall include the plural and vice versa, and

words importing either gender or the neuter shall include both genders and the

neuter;

4.12 references to “this Agreement” shall include this Agreement as amended,

varied, novated or substituted in writing from time to time;

4.13 any reference to any statute, enactment, order, regulation or similar instrument

shall be construed as a reference to statute, enactment, order, regulation or

instrument as amended, re-enacted or replaced from time to time;

4.14 references to any other agreement or document shall include (subject to all

approvals required to be given pursuant to this Agreement for any amendment

or variation to or novation or substitution of such agreement or document) a

reference to that agreement or document as amended, varied, novated or

substituted from time to time;

22


4.15 general words preceded or followed by words such as “other” or “including” or

“particularly” shall not be given a restrictive meaning because they are

preceded or followed by particular examples intended to fall within the meaning

of the general words, unless inconsistent with the context;

4.16 when any number of days is prescribed in this Agreement, same shall be

reckoned inclusively of the first and exclusively of the last day unless the last

day falls on a day which is not a Business Day in which case the last day shall

be the immediately following Business Day;

4.17 all references to “notices” shall mean notice in writing and do not include

communications by way of electronic mail; and

5 APPOINTMENT

5.1 The NDoT hereby appoints the Private Party, who accepts such appointment to

provide the Services in.accordance with the terms and conditions set out in this

Agreement.

5.2 The Private Party shall provide the Services from the Effective Date until the

Expiry Date, in accordance with the terms hereof, including Schedule 12 (SLA).

6 PROJECT DOCUMENTS

6.1 The Private Party shall comply with the provisions of the Project Documents

and may only:-

6.1.1 terminate, or make any amendment to (or otherwise agree to do so) any

Project Document; or

6.1.2 in any respect, depart from its obligations or waive any rights under any

Project Document,

with the prior written consent of the NDoT.

6.2 Without limiting the restrictions on amendments to the Project Documents in

Clause 6.1 above, the Private Party shall furnish the NDoT with a true and

complete copy (including all annexes) of any amendment to any Project

23


Document or of any Project Document not executed by the Effective Date,

within 10 (ten) Business Days of the date of the Private Party’s execution of

such amendment or Project Document.

7 SERVICES

7.1 By Private Party

7.1.1 Subject to, and in accordance with, the provisions of this Agreement, the

Private Party shall exercise its rights and perform its obligations to

undertake the Services at its own cost and risk without recourse to the

NDoT save as otherwise expressly provided for in this Agreement.

7.1.2 Without limiting Clause 7.1.1 above, the Private Party shall at its own cost

and risk be solely responsible for undertaking the Services, and in so

doing shall ensure that the Services are performed:-

7.1.2.1 in accordance with Good Industry Practice;

7.1.2.2 in a manner that is not likely to cause death, injury to health or damage to

property or the environment; and

7.1.2.3 in a manner that is not likely to result in the NdoT breaching its statutory

functions and duties;

7.1.3 in compliance with all applicable Laws and the Consents;

7.1.4 to meet the specifications in the Service Level Agreement (Schedule 12);

and

7.2 Co-operation

Each Party shall co-operate with the other in the exercise and performance of

their respective rights and obligations under this Agreement.

7.3 Contractor Not Agent

The Private Party shall not contract with any person or otherwise incur liabilities

in the name of the NDoT.

24


8 SCOPE OF SERVICES

8.1 The Private Party shall procure, finance, and supply the Long Term Vehicles as

requested by the NDoT/NUD in terms of Schedules 8 (Long Term Vehicle

Agreement) and 12 (SLA).

8.2 The Private Party shall replace all Long Term Vehicles at the expiry of the

Warranty Period in respect each Vehicle, or such longer period as may be

agreed between the Parties.

8.3 The NDoT/NUD shall be entilted to return any Long Term Vehicle to the Private

Party prior to the expiry of the Warranty Period, provided that the NDoT/NUD

shall have provided the Private Pary with no less that 2 (two) Months notice of

such return, From the date of such return the NDoT shall not be liable for any

further Rental in respect of such Vehicle.The return of any Long Terms Vehicle

in terms of this Clauseshall not affect the the Services obligations of the Private

Party in respect of the other Vehicles or derogate from any other obligation of

the Private Party in terms of this Agreement.

8.4 The Private Party shall procure, finance, and supply the Medium Term Vehicles

and/or Short Term Vehicles as requested by the NDoT/NUD in terms of

Schedules 1 and 23 ( Medium Term VehiceleShort Term Vehicle Agreements)

and 12 (SLA).

8.5 The Private Party shall not enter into any subcontract in respect of Short Term

Vehicles which grants any party exclusivity in respect of the supply of Short

Term Vehicles. The Private Party agrees to either supply itself or procure all

Short Term Vehicles by means of an open, competitve and cost effective tender

process.

9 GENERAL OBLIGATIONS

9.1 The Private Party shall not engage in any business or activity other than the

business or activity included in, or otherwise required to enable the Private

Party to provide the Services.

25


9.2 The Private Party shall not be relieved of any obligation, responsibility or liability

under this Agreement by the appointment of any Subcontractor to carry out any

part of the Services. As between the Private Party and the NDoT, the

PrivateParty shall be responsible for the payment, performance, acts, defaults,

omissions, breaches and negligence of all Subcontractors. All references in this

Agreement to any performance, payment, act, default, omission, breach or

negligence of the Private Party shall be deemed to include any of the same by a

Subcontractor.

10 QUASI-CONTRACTUAL RELATIONSHIP

10.1 Intention of the Parties

For the purposes of simplifying the relationship between the Private Party and

the NDoT and its various NUDs, the Parties have agreed that the contractual

relationship will exist between the Private Party and the NDoT. In this regard it

is the Parties intention that:

10.1.1 the NDoT shall be responsible for procuring the fulfilment by the NUDs of

all the obligations contemplated in this Agreement including, without

limitation, the obligation to pay for the Services and recognise the

exclusivity of the Private Party as contemplated in Clause 35;

10.1.2 all disputes, litigation and the like will be conducted and resolved between

the Private Party and the NDoT; and

10.1.3 neither the Private Party, nor any NUDs shall be entitled to institute action

against the other in its own name for any cause of action which arises

pursuant to this Agreement;

10.2 Principal Parties not Deprived of Claims

It is not the Parties’ intention that:

10.2.1 the NDoT, to the extent that it seeks to institute or defend any claim on

behalf of a NUD; or

10.2.2 the Private Party;

26


be deprived of any indemnity, claim, counterclaim, right, action, remedy,

exception, limitation of liability or defence due to the structure implemented.

10.3 Quasi-contractual Relationship

The relationship between the Private Party and each NUD shall thus constitute

a quasi-contractual relationship with the effect that, whilst no contractual nexus

exists between the Private Party and such NUDs, the parties shall conduct

themselves as if a contract on the terms and conditions of this Agreement exist

between them and to the extent that any claim arises, same shall, to the extent

required, be instituted, disputed and resolved between the NDoT and the

Private Party on the basis that each shall have all rights and duties in law and

this Agreement as if they were the principal parties to the dispute.

10.4 Clarification

Without derogating from the generality of the aforegoing, to the extent that:

10.4.1 any NUD is guilty of any act or omission which would, were it a party to

this Agreement, constitute a breach of this Agreement, such breach shall

be deemed to be a breach of this Agreement by the NDoT;

10.4.2 the Private Party is guilty of any act or omission in respect of a NUD,

which would, were such NUD a party to this Agreement, constitute a

breach of this Agreement, such breach shall be deemed to be a breach of

its obligations to the NDoT in terms of this Agreement;

10.4.3 any NUD suffers any loss, harm or damage due to any act or omission of

the Private Party pursuant to this Agreement such loss, harm or damage

shall be deemed to be that of the NDoT and the NDoT shall not be

deprived a cause of action merely because the NDoT has not suffered

such loss itself, provided that in such event:

10.4.4 the NDoT shall procure that the NUD fulfils all its obligations in terms of

the common law in respect of such damages, including without limitation

the NUD’s obligation to mitigate its losses;

27


10.4.5 the NDoT shall be liable to the Private Party to the extent that the Private

Party would have had any successful contractual against the NUDin

respect of such action;

10.4.6 the Private Party suffers any loss, harm or damage due to any act or

omission of a NUDpursuant to this the Private Party shall, vis-à-vis the

NDoT:

10.4.7 fulfil all its obligations in terms of the common law in respect of such

damages, including without limitation the its obligation to mitigate its

losses;

10.4.8 indemnify the NDoT to the extent that the NUD would have any

contractual or delictual claim (or counterclaim) against the Private Party.

11 PRIVATE PARTY WARRANTIES

The Private Party warrants that:-

11.1 it is a limited liability company, duly incorporated and validly existing under the

Laws and has taken all necessary actions to authorise its execution of and to

fulfil its obligations under thisAgreement and the Project Documents;

11.2 its obligations under this Agreement and those under the Project Documents to

which it is a party are legal, valid and binding and enforceable against it, in

accordance with the terms of this Agreement and such Project Documents to

which it is a party;

11.3 the execution and performance of this Agreement do not and will not

contravene any provision of the memorandum of incorporation of the Private

Party as at the Signature Date, or any order or other decision of any

Responsible Authority or arbitrator that is binding on the Private Party as at the

Signature Date;

11.4 all Consents required for the conduct of the Services are in full force and effect

as at the Signature Date, save for any Consents which are not required under

the Laws to be obtained by the Signature Date, provided that the Private Party

warrants that it knows of no reason (having made all reasonable enquiries in

28


this regard) why any such Consent will not be granted on reasonable terms by

the time it is required to obtain such Consent;

11.5 no litigation, arbitration, investigation or administrative proceeding is in progress

as at the Signature Date or, to the best of the knowledge of the Private Party as

at the Signature Date (having made all reasonable enquiries)is threatened

against it or any of the Subcontractors, which is likely to have a material

adverse effect on the ability of the Private Party to conduct the Services;

11.6 the Private Party is not subject to any obligation or non-compliance which is

likely to have a material adverse effect on its ability to conduct the Services;

11.7 no proceedings or any other steps have been taken or, to the best of the

knowledge of the Private Party (having made all reasonable enquiries), is

threatened for the winding-up or liquidation (whether voluntary or involuntary,

provisional or final), judicial management (whether provisional or final) or

deregistration of the Private Party or for the appointment of a liquidator, judicial

manager or similar officer over it or any of its assets;

11.8 it has not carried out any trading or business activities since its incorporation or

incurred any liabilities other than in connection with the operations of the

Project;

11.9 all information disclosed by or on behalf of the Private Party to the NDoT at any

time up to the Signature Date and, in particular, during the bid process

preceding the award of this Agreement to the Private Party, is true, complete

and accurate in all material respects and the Private Party is not aware of any

material facts or circumstances not disclosed to the NDoT which would, if

disclosed, be likely to have an adverse effect on the NDoT’s decision (acting

reasonably) to award thisAgreement to the Private Party;

11.10 it has full knowledge of all relevant statutory, collective and other stipulations

applicable to the relationship with its Subcontractors and its relationship with the

NDoT. This includes, but is not limited to, the Labour Relations Act, the Basic

Conditions of Employment Act, 1997, the Employment Equity Act, 1998 and any

other applicable employment legislation currently in force. The Private Party

29


warrants further that it is not and will not in future be in contravention of any of

the provisions of any such legislation and in the event of such contravention, the

Private Party shall immediately take all steps to remedy such contravention. If

the NDoT advises the Private Party of any contravention of such legislation in

writing, the Private Party shall, within 10 (ten) days after receipt of such notice,

take all steps necessary to remedy such contravention and shall keep the NDoT

informed regarding the steps taken and the implementation and the result

thereof.

11.11 it is conversant with section 198(4) of the Labour Relations Act and warrants

further that any Subcontractor supplied by the Private Party shall be an

independent contractor as defined in the Labour Relations Act and the

Occupational Health and Safety Act, 1993 and will render the Services as such.

The Private Party shall not have the authority to act on behalf of the NDoT or to

bind the NDoT in any manner whatsoever without the NDoT’s prior written

consent and shall not be considered as having employee status for the purpose

of any benefit applicable to the NDoT employees generally.

11.12 it has acquired professional opinion to the effect that no notification to the

competition authorities is required if this Agreement is awarded to it.

11.13 no aspect of the provision of Services in terms of this Agreement will infringe

any patent, design, copyright, trade secret or other proprietary right of any third

party ("Third Party Proprietary Rights").

11.14 as at the Signature Date:-

11.14.1 the Private Party has an authorised and issued share capital as set out in

the Shareholders Agreement and all shares in the issued share capital of

the Private Party are fully paid up;

11.14.2 all shares in the issued share capital of the Private Party are legally and

beneficially owned as represented in the Shareholders Agreement;

11.14.3 no party has the right (whether actual or contingent) to call for the issue of

any share or loan capital in the Private Party whether pursuant to any

option or otherwise including any realisation of security; and

30


11.14.4 there are no encumbrances over or affecting any of the Equity or the

Shareholder Loans and there is no agreement or commitment to grant or

create any such encumbrance.

12 NDoT WARRANTIES

The NDoT warrants that it has the power to execute this Agreement and has

taken all necessary actions to authorise the execution hereof; and

13 PRIVATE PARTY INDEMNITIES

The Private Party indemnifies and shall keep the NDoT indemnified at all times

against all direct losses sustained by the NDoT in consequence of:-

13.1 any:-

13.1.1 loss of or damage to property;

13.1.2 breach by the Private Party which results in the NDoT breaching a

statutory duty arising under the Laws;

13.1.3 claim for or in respect of the death or personal injury of any individual; or

13.1.4 other claim, action, charge, cost, demand or expense,

(including, without limitation, any legal fees or costs) arising in connection with

the performance or non-performance of any Services by the Private Party, save

to the extent caused by:-

13.1.5 the gross negligence or wilful misconduct of the NDoT;

13.1.6 a breach by the NDoT of an express provision of this Agreement;

13.2 any breach by the Private Party of any warranties given by it in this Agreement;

13.3 any claim or action whatsoever in terms of section 198(4) of the Labour

Relations Act, instituted against the NDoT by a Subcontractor of the Private

Party. In the event that the Private Party or any of its Subcontractors rendering

the Services to the NDoT, become involved in arbitration or other proceedings

falling under a collective agreement under a bargaining council, then the Private

31


Party shall immediately inform the NDoT thereof and on request supply the

NDoT with a copy of any award made pursuant to such proceedings or

agreement and any documentation that the NDoT may request in respect

thereof;

13.4 any fine, penalty or other payment which the NDoT or such officials may be

required to pay to the competition authorities whether as a result of the

incorrectness of the opinion in Clause 11.12, or otherwise, including any and all

legal costs incurred by the NDoT pursuant thereto.

13.5 any loss, harm or damage which arises in respect of or due to any Vehicle

being in the Private Party's possession during currency of this Agreement.

14 PROCESS IN THE EVENT OF AN INDEMNITY CLAIM

Should any claim be made against the NDoT by any person in terms of Clause 13

(PRIVATE PARTY INDEMNITIES):-

14.1 the NDoT shall give the Private Party written notice thereof within 30 (thirty)

days of becoming aware of such claim to enable the Private Party to take steps

to contest it;

14.2 the Private Party may, within 7 (seven) days of receipt of the notice in terms of

Clause 12.2, elect, in writing, to contest an indemnified claim in the name of the

NDoT and may control the proceedings in respect thereof (including any

appeals), provided that the Private Party indemnifies the NDoT and holds it

harmless against all and any costs (including without being limited to attorney

and own client costs and any other costs not recoverable on taxation) which

may be incurred by or awarded against the NDoT as a consequence of the

defence of any indemnified claim;

14.3 the Private Party shall pay the NDoT the amount of an indemnified claim within

7 (seven) days of receipt of the notification referred to in Clause 14.2, unless

the Private Party contests the indemnified claim in terms of Clause 14.2, in

which case the Private Party shall pay to the NDoT the amount of the

indemnified claim within 7 (seven) days after any final judgement or order is

granted against the NDoT, provided that in those circumstances where a claim

32


is contested and despite such contest, the claim is payable in law, the Private

Party shall pay to the NDoT the amount of the claim as soon as it is payable;

14.4 the NDoT shall furnish the Private Party with all reasonable assistance and shall

co operate in every reasonable way to facilitate the defence and/or settlement

of any such claim, action, proceeding or suit provided that the Private Party

shall reimburse and pay to the NDoT all reasonable costs and expenses

incurred by the NDoT in respect of such assistance and co-operation. Without

derogating from the aforegoing, the NDoT shall not: -

14.4.1 make any admissions of liability in respect of such claims; or

14.4.2 knowingly act or omit to act in a manner which may prejudice the Private

Party's rights.

14.5 Should any third party succeed in its claim for the infringement of any Third

Party Proprietary Rights, the Private Party shall, at its discretion and within 30

(thirty) days of the Services having been found to infringe such Third Party

Rights:-

14.5.1 obtain for the NDoT the right to continue using the subject of infringement

or the parts thereof which constitute the infringement; or

14.5.2 replace the subject of infringement or the parts thereof which constitute

the infringement with another product or service which does not infringe

and which is materially similar to the subject of infringement; or

14.5.3 alter the subject of infringement in such a way as to render it non

infringing while still in all respects operating in substantially the same

manner as the subject of infringement; or

14.5.4 withdraw the subject of infringement.

15 LIMITATIONS ON LIABILITY

15.1 If any Party is expressly entitled to any indemnification under this Agreement for

any losses incurred, then such Party’s sole remedy in respect of such losses

33


shall be its indemnity and, accordingly, it shall not be entitled to any other

remedy for such losses.

15.2 Nothing in Clause 13.1 shall prevent or restrict the right of the NDoT to seek

any interdict or similar relief, any decree of specific performance or any other

discretionary remedies of a court.

15.3 No Party entitled to any indemnification or other compensation under this

Agreement for any losses incurred by it, whether because of the conduct of the

other Party or for any other cause, shall be entitled to:-

15.3.1 any claim for damages for breach of contract, in delict or on any other

basis in respect of such conduct or cause; or

15.3.2 any claim for indirect or consequential losses (including any loss of profit,

loss of use, loss of production, loss of business, loss of business

opportunity) incurred by it as a result of such conduct or cause, save as

otherwise provided expressly in this Agreement.

15.4 The NDoT shall not be liable whether in contract, delict or otherwise, to the

Private Party in respect of any negligent act or omission of the NDoT, its

employees, officials, representatives or guests, which is or ought to be insured

against pursuant to the Insurances. The Private Party has agreed to this on the

basis that it shall mitigate, the risks of any such negligent acts or omissions on

the part of the NDoT that can be covered by insurance by obtaining and

maintaining the Insurances.

16 CONSENTS

16.1 The Private Party shall be responsible for:-

16.1.1 obtaining all Consents which may be required in connection with the

performance of the Services;

16.1.2 maintaining in full force and effect all Consents; and

16.1.3 implementing all Consents in accordance with their respective terms

within the period of their validity.

34


17 DURATION OF AGREEMENT

17.1 Subject to Clause 5.2, this Agreement and the rights and obligations of the

Parties under this Agreement shall take effect on the Signature Date shall

continue until the earlier of:

17.1.1 the Expiry Date, provided that the NDoT may in its sole discretion extend

the Agreement on a month to month basis for a period non exceeding 12

(twelve) months on written notice to the Private Party, which notice shall

be given no less than 90 (ninety) days prior to the Expiry Date; and

17.1.2 the Termination Date.

18 PROVISION OF THE SERVICES

18.1 Subject to, and in accordance with, the provisions of this Agreement, the Private

Party shall exercise its rights and perform its obligations included in the

Services at its own cost and risk without recourse to the NDoT save as

otherwise expressly provided for in this Agreement.

18.2 During the currency of this Agreement, the Private Party shall at its own cost

and risk be solely responsible for procuring that the Services are provided to the

NUDs and the NDoT:-

18.2.1 in accordance with the Service Levels;

18.2.2 in accordance with Good Industry Practice;

18.2.3 in accordance with the terms of this Agreement;

18.2.4 in a manner that is not likely to cause death, injury to health to any person

or damage to property or the environment;

18.2.5 in a manner that is consistent with the NDoT discharging its statutory

functions and duties; and

18.2.6 in compliance with all applicable law and the Consents;

35


19 SERVICE LEVELS

19.1 The Private Party undertakes that in providing the Services to the NDoT and

NUDs, it will achieve the Service Levels set out in the SLA.

19.2 Should the Private Party at any time fail to meet the Service Levels due to its

default, the Private Party will, without prejudice to the NDoT’s other rights and

remedies provide all such additional resources, as it costs, as may be

necessary to perform the Services in accordance with the Service Levels as

early as practicable thereafter;

19.3 The Private Party shall be liable for Penalties in accordance with Schedule12

(Penalty Regime) for failure to meet the Service Levels, provided that, the

Private Party shall not be liable for Penaltiesfor any failure to meet a Service

Level to the extent that such failure arises directly out of a failure of the NDoT to

comply with its responsibilities set out in the SLA.

19.4 The Private Party may not withhold any Services or Vehicles from the NDoT or

any NUD during the Project Term.

20 PROCESSES & PROCEDURES

In providing and acquiring the Services in terms of this Agreement, the Parties agree

to adhere, inter alia, to Schedules 13 (Service Procedures) and 16 (Operations

Procedures Manual).

21 MANAGEMENT INFORMATION SYSTEM

The Private Party shall provide an MIS in accordance with Schedule 10 to meet the

Service Levels and its obligations in terms of the Agreement.

22 FUEL

The Private party shall be responsible for providing fuel to all Vehicles in accordance

with Schedule 22 (Fuel). The Private Party shall be compensated to fuel in

accordance with Schedule14 (Payment Mechanism).

36


[Note: Bidders are requested to make innovative proposals in regard to mitigation of fuel relate risks, including fraud and other abuse including the use of technology available to prevent fuel fraud.]

23 PROBLEM, NEGATIVE TREND IDENTIFICATION AND OPTIMISATION

23.1 Should the Private Party encounter any problem or identify any trend in relation

to any of the Services or the Vehicles or any component thereof, which could

cause, or which indicates the likely occurrence of, a disruption to the NDoT’S or

any of the NUDs’ business or the availability of the Services or Vehicles, it must

report such matter to the NDoT in writing without delay. Thereafter, the parties

will agree on corrective measures to be taken to address or pre-empt the

problem, as the case may be, in accordance with the Variation Procedure.

23.2 The Private Party shall provide the NDoT with advice as how best to optimise

vehicle utilisation and other components of the Services.

24 PERFORMANCE BOND

24.1 The Private Party shall provide the NDoT a performance bond in the amount of

R10 000 000. 00 (10 million rand) substantially in the form set out in Schedule

17 (Performance Bond), from a registered South African financial institution

reasonably acceptable to the NDoT, for the due and punctual performance of

the Private Party's obligations in terms of this Agreement.

24.2 The Private Party shall be responsible for paying all premia due in respect of

the Performance Bond in a timely fashion and shall provide the NDoT with proof

of payment of all premiums due within the period stipulated for payment thereof.

Should the Private Party fail to pay any such premium, such failure shall

constitute a material breach of this Agreement, entitling the NDoT either to:-

24.2.1 pay such premium. In such event the Private Party shall repay the NDoT

the amount of the premium within 3 (three) days of receiving written notice

from the NDoT demanding payment. Any amounts paid by the NDoT in

terms of this Clauseshall bear Penalty Interest from the date of payment

of such amount by the NDoT to the financial institution providing the

performance bond (“the Issuer”); or

37


24.2.2 terminate this Agreement and exercise its rights in terms of the

Performance Bond.

24.3 Should the Performance Bond be issued on the basis that it is subject to

renewal on a periodic basis, the Private Party shall, no less than 60 (sixty) days

prior to the lapsing of the performance bond, procure that either:-

24.3.1 the issuer thereof agrees to extend the performance bond for a further

period; or

24.3.2 a new performance bond, on terms reasonably acceptable to the NDoT, is

executed in respect of the period subsequent to the lapsing of the then

existing Performance Bond.

24.4 The NDoT shall be entitled to call on the Peformance Bond in the event of any

breach by the Private Party of its obligations in terms of this Agreement. In the

event that that NDoT call on the Peformance Bond, the Private Party shall be

obliged to reinstate the Performance Bond to its original amount.

24.5 The Performance Bond shall not be in lieu of the rights of the NDoT under this

Agreement, but shall be in addition to, supplementary to and without prejudice

to such rights.

24.6 The NDoT may, in its discretion, reduce the amount of the performance bond

required. In such event, the Private Party shall reduce the Rentals payable in

respect of the Long Term Vehicles for any Long Term Vehicles hired after the

renewal date of the performance bond by an amount relative to the cost saving

realised due to the reduction in the amount of the Performance Bond.

25 USER SATISFACTION SURVEY

25.1 Whilst the Parties agree that the Services will be provided at the levels

stipulated in the SLA, the Private Party acknowledges that the ultimate purpose

of the Services is to enable the NDoT and NUDs to achieve their business

purpose. Accordingly the Private Party undertakes that, in addition toany

Service Levels which may be stipulated, it shall provide the Services at a level

and in a manner which are in accordance with Good Industry Practice.

38


25.2 In order to assess the above, the NDoT may on 30 (thirty) day’s notice to the

Private Party, conduct user satisfaction surveys during the currency of this

Agreement. Such survey shall be conducted at the NDoT's cost amongst the

users of the Services within the NUDs.

25.3 Subject to such surveys being conducted by an independent expert who shall

be a reputable third party survey company, on a statistically acceptable basis

with regard, inter alia, to the representative nature of the sample and the

conclusions drawn, the Private Party agrees that should any such survey

indicate that the level of Service being provided by the Private Party to the

NDoT is unsatisfactory to the users, the NDoT may, notwithstanding the fact

that the Services are being provided within the Service Levels, request the

Private Party to submit a remediation plan to address the concerns raised.

Such plan shall be submitted by the Private Party within 30 (thirty) days of

notification by the NDoT, or such longer period as the NDoT may agree, and

shall be reasonable with regard to the cost and ease of implementation. The

approval and implementation of any remediation plan shall take place in

accordance with the Variation Procedure in Clause 32 (PRIVATE PARTY

VARIATIONS).

25.3.1 Should the Private Party fail:-

25.3.1.1 to submit such remediation plan within the time period contemplated

above;

25.3.1.2 to implement any remediation plan approved by the NDoT in terms of the

Variation Procedure;

such failure shall constitute a material breach of this Agreement.

26 OBLIGATIONS OF THE NDoT

26.1 The NDoT shall ensure that any NUDover which it has direct control performs

its duties and functions referred to in this Agreement in a manner which enables

the Private Party to comply with their obligations to provide the Services.

39


26.2 The NDoT shall grant the Private Party reasonable access to all its premises for

the purpose of providing the Services and Vehicles in terms of this Agreement.

27 FINANCIAL PROVISIONS

27.1 Unitary Payment

27.1.1 For the Services provided to the NDoT by the Private Party in terms of this

Agreement, the NDoT will pay the Private Party the Unitary Payment in

accordance with Schedule 14 (Payment Mechanism). The Private Party

shall only be entitled to payment for fees and charges included in the Rate

Card and shall not be entitled to payment of any other amount in respect

of the Services, save as provided otherwise in terms of this Agreement.

27.1.2 The Private Party shall submit monthly invoices in arrears, in accordance

with Schedule 14 (Payment Mechanism) in respect of the Unitary

Payment due. All invoices must be submitted by the Private Party no later

than 2 (two) Months after the date of service, faling which such claim shall

lapse and thePrivate Party shall have no rrecourse against the NDoT in

respect of such claim.

27.2 Penalties

27.2.1 The Private Party shall be liable for and shall pay Penalties for:

27.2.1.1 failure to provide the Sevices in terms of the SLA in accordance with

Schedule 15 (Penalty Regime); and

27.2.1.2 failure comply with its Target Group obligations in terms of Clauses 40

(OWNERSHIP IN THE PRIVATE PARTY), 41 (PRIVATE PARTY

MANAGEMENT CONTROL), 42 (PRIVATE PARTY SKILLS

DEVELOPMENT, 43 (ENTERPRISE AND SUPPLIER

DEVELOPMENT), 44 (LOCAL SOCIO ECONOMIC IMPACT) and

45 (TARGET GROUP REPORT and Schedule 5 (Target Group

Terms) in terms of Schedule 5(Target Group Terms);

27.2.2 The Private Party pay the Penalties monthly invoices in arrears, in

accordance with Schedule15 (Penalty Regime);.

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27.3 Interest

Each Party shall be entitled, without prejudice to any other right or remedy, to

receive interest on any payment not made on the due date for such payment at

the Default Interest Rate, calculated from the day after the date on which

payment was due up to and including the date of payment.

27.4 Set Off/Deductions

All payments due by the Private Party to the NDoT in terms of this Agreement

shall be made free of deduction or set-off. The NDoT shall however be entitled

to set off any Penalties due by the Private Party from the Unitary Payment.

27.5 Disputed Amounts

If either Party disputes all or any part of the fees or charges comprising the

Unitary Payment payable by the NDoT to the Private Party or any Penalties due

by the Private Party pursuant to this Agreement, the undisputed amount shall

be paid, and the provisions of this Clause shall apply. The matter shall be

referred to the Steering Committee and the Parties shall use all reasonable

endeavours to resolve the dispute in question within 10 (ten) Business Days of

the dispute arising. If they fail so to resolve it, either party may refer the dispute

for resolution in accordance with the Clause 59. Any claim by the Private Party

which remains unresolved at the end of any Financial Year, shall lapse at the

end of such Financial Year unless the Private Party has referred the matter for

resolution in accordance with the Clause 59.

27.6 Value Added Tax

All amounts payable in terms of this Agreement are stipulated exclusive of

value-added tax, which shall be payable by the relevant Party at the prescribed

rate, simultaneously with the payment to which it relates, unless expressly

stated otherwise. The Party to be paid shall provide the other Party with a

value-added tax invoice in the format, and containing the particulars, required

by law, including, without limitation, an indication of which items are vatable and

those which are not.

41


28 INSURANCE

28.1 The Private Party shall take out and shall thereafter maintain and keep in full

force and effect for the Project Term:

28.1.1 full and comprehensive insurances in respect if all Vehicles;

28.1.2 all insurances required by law; and

28.1.3 all insurances dictated by Good Industry Practice.

28.2 The payment of the insurance premiums due and payable in respect of any

Insurance shall be the responsibility of the Private Party.

28.3 The Private Party shall not take any action or fail to take any action, or permit

anything to occur in relation to it, which would entitle any insurer to refuse to

pay any claim under any of the policies applying to any Insurance.

28.4 The Private Party undertakes that each Insuranceshall:-

28.4.1 name the Private Party as the insured and the NDoT/NUD as co-insured

for its separate interest;

28.4.2 apply to each of the insured parties as if a separate policy had been

issued to each of them, other than in the event of exhaustion of the sum

insured or the limit of indemnity;

28.4.3 provide for non-vitiation protection covering respect of any claim made by

the NDoT as co-insured. ;

28.4.4 contain a provision waiving the insurers’ subrogation rights against the

NDoT, its employees and agents;

28.4.5 contain a provision recording that such Vehicle insurance is a primary

insurance and shall not be brought into contribution by any other

insurances; and

28.5 The Private Party shall furnish the NDoT, on request, with:-

28.5.1 true and complete copies of the policies of all the Insurances (together

42


with any other information reasonably requested by the NDoT relating to

such policies) and the NDoT shall be entitled to inspect them during

Business Hours; and

28.5.2 satisfactory evidence that the premia due and payable under any such

policies have been paid and that the Insurances are in full force and effect

in accordance with the requirements of this Clause 28.

28.6 The Private Party shall, as and when required pursuant to the terms of the

relevant Vehicle insurance, renew each Insurancefor so long as any risk

covered thereby exists.If the Private Party breaches any of Clauses28.1 or 28.2

above in relation to any Insurance, theNDoT may pay any premium required to

keep such Insurance in force and effect, or itself procure such Insurance and

may recover all premia or other costs incurred by it in doing so from the Private

Party on written demand.

28.7 Neither the failure to comply nor full compliance with the insurance provisions of

this Agreement shall limit or relieve the Private Party of its liabilities and

obligations under this Agreement.

28.8 The Private Party shall apply any proceeds of any policy of the Insurance:-

28.8.1 in the case of third-party legal liability or employer’s liability insurance, in

satisfaction of the claim, demand, proceeding or liability in respect of

which the proceeds are payable; and

28.8.2 in the case of any other Insurance, so as to ensure the performance by

the Private Party of its obligations under this Agreement.

28.9 The Private Party shall bear the risk of any shortfall in the proceeds of any

Insurance.

[Note: Private Party to advise on how to pass insurance savings to the NDoT.]

43


29 COMPENSATION EVENT

29.1 If, as a direct result of the occurrence of a Compensation Event, the Private

Party suffers any loss or damage that it is unable to recover from insurers, then

the Private Party is entitled to payment from the NDoTof the amount that the

Private Partywould have recovered from insurance proceeds, but for such

Abuse; and provided that the Private Party has not breached the provisions of

Clause 28 (INSURANCE).

29.2 To obtain compensation the Private Party must:-

29.2.1 as soon as practicable, and in any event within 5 (five) Business Days

after it became aware that the Compensation Event and that the Private

Party will suffer any loss,give to the NDoT, a notice of its claim for

payment of compensation under this Agreement;

29.2.2 within 30 (thirty) days of receipt by the Department of the notice referred

to in Clause 29.2.1 above, give full details of the Compensation Event and

amount claimed; and

29.2.3 demonstrate to the reasonable satisfaction of the NDoT that:-

29.2.4 the Compensation Event was the direct cause of loss costs;

29.2.5 the loss could not reasonably be expected to be mitigated or recovered by

the Private Party or its Subcontractors acting in accordance with Good

Industry Practice; and

29.2.6 provide all relevant substantiating information and documentation fro its

claim.

29.3 If the Private Party complies with its obligations in terms of Clause 29.2, the

NDoT shall compensate the Private Party for the amount that it would recovered

from the insurers but for such Abuse, within 30 (thirty) days of its receipt of all

information referred to in Clause 29.2. and/or

29.4 If the Parties cannot agree on the extent of any compensation, under this

Agreement, or the NDoT disagrees that a Compensation Event has occurred (or

44


as to its consequences), or that the Private Party is entitled to any relief under

this Clause 29, the Parties shall resolve the matter in accordance with Clause

75 (FAST-TRACK DISPUTE RESOLUTION).

29.5 In determining the liability of the NDoT for purposes of this Clause in respect of

any Compensation Event caused or contributed to by the Private Party, the

liability of the NDoT shall be limited to that proportion of the loss or damage

suffered by the Private Party which is agreed or ascribed to the NDoT by the

Independent Expert. The Independent Expert shall allocate proportionate

responsibility having regard to the contribution to the Private Party’s loss or

damage in question based upon relative degrees of fault. It is a term of this

Agreement that the provisions of Section 1 of the Apportionment of Damages

Act, 1956 will apply to all claims under this Clause 39 and that “breach” as

contemplated in the definition of Compensation Event, and “costs” or “losses”

as used herein shall be deemed to fall within the meanings of “fault” and

“damage” as contained in the said section of the above Act.

30 FORCE MAJEURE

30.1 Subject to Clauses30.2.2, 30.3and 30.7, the Party claiming relief shall be

relieved from liability under this Agreement to the extent that by reason of a

Force Majeure event it is not able to perform all, or a material part of its

obligations under this Agreement.

30.2 Where a Party is (or claims to be) affected by an event of Force Majeure:-

30.2.1 it shall take all reasonable steps to mitigate the consequences of such an

event upon the performance of its obligations under this Agreement,

resume performance of its obligations affected by the event of Force

Majeure as soon as practicable and use all reasonable endeavours to

remedy its failure to perform; and

30.2.2 it shall not be relieved from liability under this Agreement to the extent that

it is not able to perform, or has not in fact performed, its obligations under

this Agreement as a result of its failure to comply with its obligations under

Clause 30.2.1.

45


30.3 The Party claiming relief shall serve written notice on the other Party within 5

(five) Business Days of it becoming aware of the relevant event of Force

Majeure. Such initial notice shall give sufficient details to identify the particular

event claimed to be an event of Force Majeure.

30.4 A subsequent written notice shall be served by the Party claiming relief on the

other Party within a further 30 (thirty) days, or such longer period as may be

agreed between the Parties, which shall contain such relevant information

relating to the failure to perform (or delay in performing) as is available,

including (without limitation) the effect of the event of Force Majeure on the

ability of the Party to perform, the action being taken in accordance with Clause

30.2.1, the date of the occurrence of the event of Force Majeure and an

estimate of the period of time required to overcome it (and/or its effects).

30.5 The Party claiming relief shall notify the other as soon as the consequences of

the event of Force Majeure have ceased and when performance of its affected

obligations can be resumed.

30.6 If, following the issue of any notice referred to in Clause 30.4, the Party claiming

relief receives or becomes aware of any further information relating to the event

of Force Majeure (and/or any failure to perform), it shall submit such further

information to the other Party as soon as reasonably possible.

30.7 Nothing in Clause 29 above shall affect any entitlement of the NDoT to levy

Penalties or any other deductions from the Unitary Payment as are permitted

under this Agreement during the period in which the event of Force Majeure is

subsisting whether the right to levyPenalties or other deductions arose prior to,

as result of or during the happening of the event of Force Majeure.

31 NDoT VARIATIONS

31.1 The NDoT has the right to propose Variations to the Servicesor Service Levels

in accordance with this Clause 31 (NDoT VARIATIONS).

31.2 If the NDoT requires a Variation to the Services, Service Levelsit must serve a

notice on the Private Party detailing the requested Variation (a “NDoT Variation Proposal”).

46


31.3 The NDoT Variation Proposal shall set out the Variation required in sufficient

detail as to enable the Private Party to calculate and provide the likely impact on

the costs of the Services in accordance with Clause 31.4 below (the

“Estimate”).

31.4 As soon as practicable and in any event within 20 (twenty) Business Days after

having received the NDoT Variation Proposal, the Private Party shall, deliver

the Estimate to the NDoT. The Estimate shall include the opinion of the Private

Party on:-

31.4.1 any impact on the provision of the Services;

31.4.2 any amendment required to this as a result of the Variation; and

31.4.3 any estimated revision to the Unitary Payment that result directly from the

Variation.

31.5 As soon as practicable after the NDoT receives the Estimate, the Parties shall

discuss and agree the issues set out in the Estimate. The Private Party

shallprovide evidence that it has used its reasonable endeavours (including

(where practicable) the use of competitive quotes) to oblige its Subcontractors

to minimise any increase in costs and maximise any reduction in costs.

31.6 In such discussions the NDoT may modify the NDoT Variation Proposal In each

case the Private Party shall, as soon as practicable, and in any event not more

than 20 (twenty) Business Days after receipt of such modification, notify the

NDoT of any consequential changes to the Estimate.

31.7 The Private Party shall comply with Good Industry Practice with the objective of

ensuring that it obtains best value in relation to the Variation.

31.8 If the Parties cannot agree on the contents of the Estimate, then the dispute will

be determined in accordance with Clause 59 (FAST-TRACK DISPUTE

RESOLUTION).

47


32 PRIVATE PARTY VARIATIONS

32.1 If the Private Party wishes to introduce a Variation, including as a result of the

User Satisfaction Survey in terms of Clause 25it must serve a notice on the

NDoT providing details of such Variation (a “Private Party Variation Proposal”).

32.2 The Private Party Variation Proposal must:-

32.2.1 set out the proposed Variation in sufficient detail to enable the NDoT to

evaluate it in full;

32.2.2 specify the Private Party’s reasons for the Private Party Variation

Proposal;

32.2.3 request the NDoT to consult with the Private Party with a view to deciding

whether to agree to the Private Party Variation Proposal and, if so, what

consequential changes the NDoT requires as a result;

32.2.4 specify all implications of the Private Party Variation Proposal on this

Agreement and any of its terms;

32.2.5 indicate, the impact of such proposed Variation on the Unitary Payment;

and

32.2.6 indicate if there are any dates by which a decision by the NDoT is critical.

32.3 The NDoT shall evaluate the Private Party’s Variation Proposal.

32.4 As soon as practicable after receiving the Private Party Variation Proposal, the

Parties shall meet and discuss the matters referred to in it. During their

discussions the NDoT may propose modifications or accept or reject the Private

Party Variation Proposal.

32.5 To the extent that the NDoT proposes modifications to the Private Party

Variation Proposal, the Private Party may either accept such modifications or

withdraw the Private Party Variation Proposal.

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32.6 If the NDoT accepts the Private Party Variation Proposal (with or without

modification as agreed to by the Private Party), the Private Party shall

implement the relevant changes arising from the Variation within 20 (twenty)

Business Days of the NDoT’s acceptance.

32.7 If the NDoT rejects the Private Party Variation Proposal, it shall not be obliged

to give its reasons for such rejection.

33 OPERATIONAL CHANGES

The Parties acknowledge and agree that the provision of the Services in terms hereof

will necessarily involve a number of minor on-going operational adjustments or

changes (“Operational Changes”) and that the provision of Services would be

unnecessarily delayed or frustrated if such operational changes are subject to the

Variations procedure in terms of Clauses 31 (NDoT VARIATIONS) and 32 (PRIVATE

PARTY VARIATIONS) above. Accordingly, it is agreed that Operational Changes will

not be subject to the Variations procedure in terms of Clauses 24 and 25. The

Steering Committee will manage and implement operational changes. Any dispute as

to whether a change constitutes an Operational Change shall be referred to Fast

Track Dispute Resolution in accordance with Clause 59.

34 REVIEW OF THE AGREEMENT

It is fundamental to the success of this Agreement and the Parties' on-going

relationship that this Agreement reflects and continues to reflect their prevailing

business imperatives and capabilities. Consequently the Parties agree that for the

purposes of reviewing this Agreement, the Services, the size of any NUD fleet, or any

other matter arising out of this Agreement, the Steering Committee will, at a

minimum, formally meet at least 30 (thirty) days before the anniversary of the

Effective Date (or at such other time as the Steering Committee may agree) each

year during the currency of this Agreement provided that any and all changes agreed

at such meetings shall be executed in accordance with the Variation Procedure in

Clause 32 (PRIVATE PARTY VARIATION).

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35 LONG TERM VEHICLES EXCLUSIVITY

35.1 In consideration for the Private Party rendering the Services in terms of this

Agreement, the NDoT shall (save as may be provided expressly to the contrary

in this Agreement), for the Project Term, source all its Long Term Vehicles from

the Private Party, it being recorded that the commercial viability of the

transaction, the Services which the Private Party is able to render and the fees

in respect thereof are based on such assumption. In this regard it is recorded

that this exclusivity shall relate solely to the provision by the Private Party of

Long Term Vehicles which cater for the Function of the Vehicles. The NDoT

shall accordingly be entitled to source additional Long Term Vehiclesfrom a

third party only if and to the extent that:

35.1.1 the Private Party is unable to fulfil such requirements; or

35.1.2 the NDoT is acting in terms of a right granted in terms of the SLA, to

source a vehicle from a third party.

35.2 The NDoT or any NUDs may, subject to giving the Private Party prior written

notice thereof, undertake the outsourcing of a particular service, an aspect of

which may include the provision of a vehicle provided that the outsourcing shall

not be used to circumvent the provisions of this Agreement, in particular the

principle that the NDoT shall source all its Long Term Vehiclesexclusively from

the Private Party.

35.3 Notwithstanding the provisions of Clause 35.1, the NDoT may during the period

of this Agreementaccept donations of vehicles from businesses for the

purposes of improving service delivery or otherwise benefiting the NDoT or the

NUDs.

35.4 Subject to the provisions of Clause 35.1, it is expressly recorded that the NDoT

shall not be obliged to lease a minimum number of Vehicles from the Private

Party and the total number of Vehicles leased by the NDoT at any time shall be

determined by the NDoT in its discretion.

50


35.5 The NDoT shall procure the compliance of all NUDs with this Clause 35.It is

specifically recorded that the provisions of this Clause 35.1, 35.3 and 35.4 shall

not apply to the lease of Medium Term Vehicles and/or Short Term Vehicles.

36 PERSONNEL

36.1 NDoT’s Personnel

None of the NDoT/NUD employees shall be transferred to the Private Party nor

may the Private Party utilise such personnel to provide the Services.

36.2 Private Party Personnel

The Private Party shall at all times ensure that sufficient suitable and

appropriately qualified and trained and experienced personnel are employed

(whether by the Private Party or its Subcontractors) to undertake the Services.

Without limiting the generality of the foregoing, the Private Party shall ensure

that all Key Personnel Positions are always filled as soon as reasonably

possible.

36.3 Replacement of Key Personnel

Either Party may substitute Key Personnel at its discretion and will give

reasonable notice to the other of such substitution and will provide replacement

staff of equivalent ability. Without derogating from the aforegoing, should the

Private Party replace Key Personnel for any reason whatsoever, it shall ensure,

to the greatest extent possible in the circumstances, that a suitable period of

handover and overlap, being not less than 30 (thirty) days, takes place between

the new and the incumbent Key Personnel member. The costs of such

handover shall be borne by the Private Party.

36.4 Removal of Private Party Personnel

36.4.1 The Private Party employees shall at all times when on NDoT premises

adhere to the standard health, safety and security procedures and

guidelines applicable to NDoT employees, as varied and conveyed by the

NDoT to the Private Party from time to time. It shall at all times be the

51


responsibility of the Private Party to notify its employees of such changes

and the NDoT shall not be liable for any failure by the Private Party to do

so.

36.4.2 The NDoT may require the Private Party to remove any employee or other

personnel of the Private Party or any Subcontractorfrom the NDoT’S

premisesand the Private Party shall do so (provided such removal is

permitted under Law) if in the reasonable opinion of the NDoT such

employee or personnel does not comply with standard health, safety and

security procedures and guidelines engages in any conduct which might

reasonably be expected to result in a breach of any provision of this

Agreement or threaten public health, safety or security, and the Private

Party shall as soon as reasonably possible replace such employee or

personnel with suitable appropriately qualified and experienced

replacements (provided such replacement is permitted under Law).

37 COMMITTEES

37.1 Operating Committee

37.1.1 The Operating Committee shall be established in accordance with the

SLA and shall have the functions detailed in the SLA.

37.1.2 Any dispute arises between any of the members of the Operating

Committee, to shall be referred to the Steering Committe for resolution.

37.2 Technical Risk Committee

37.2.1 The NDoT shall establish aTechnical Risk Committee, comprising

represenatives of the NDoT and shall have the functions detailed in the

SLA.

37.2.2 In the event that the Private Party does not agree with any decision of

theTechnical Risk Committee, to the Steering Committee.

37.3 Steering Committee

37.3.1 The Steering Committee shall be established in accordance with the SLA

and shall, in addition to resolving disputes from the Operating Committee

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and the Technical Risk Committee, have the functions detailed in the

SLA.

37.3.2 Any dispute arises from the Steering Committee shall be referred to

dispute resolution in terms of Clause 59 (FAST-TRACK DISPUTE

RESOLUTION).

38 MONITORING AND INSPECTION

38.1 The Private Party shall ensure that a full and accurate set of records is kept of

all Services performed in terms of this Agreement for a period of 5 (five) years

after the provision of any such Services. In addition the Private Party shall, in

order to enable the NDoT to determine whether the provisions of this

Agreement are being complied with:

38.1.1 provide the NDoT with such information as it may reasonably require;

38.1.2 allow the NDoT to inspect and take copies of any documents of the

Private Party relating to the Services, including all data, information,

procedures, event logs, transaction logs, audit trails, books, records,

contracts and correspondence;

38.1.3 allow the NDoT or its authorised representatives to conduct interviews

with any of the Private Party ’s employees, subject to reasonable notice

being given and the Private Party's employees consenting thereto; and

38.1.4 allow the NDOT or its authorised representatives to physically inspect the

Private Party’s infrastructure and sstests in as as far aas they are utilised

or copontribute to provisiong of the service.

38.2 Where any information required for the inspection in terms of this Clause 37is

kept by means of a computer, the Private Party shall give the NDoT such

reasonable assistance it requires to facilitate inspection and the taking of copies

of the information in a visible and legible form or to inspect and check the

operation of any computer and any associated apparatus or material that is or

has been in use in connection with the keeping of the information.

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38.3 Any information required to be provided to the NDoT pursuant to this Clause 37

shall be provided by the Private Party, at the Private Party’s cost, in such form

(including a form otherwise than in writing) as the NDoT may reasonably

specify.

38.4 Where, pursuant to any provision contained in this Clause 37, the Private Party

is required to allow the NDoT to inspect or take copies of any item of any

description the relevant party shall allow the NDoT, or its authorised

representatives, such access to any premises of such parties as is necessary to

enable the NDoT to inspect or take copies of the items.

38.5 The cost of any inspection contemplated in terms of this Clauseshall be for the

account of the NDoT unless any material irregularity or failure on the part of the

Private Party is determined by the NDoT in the course of such inspection.

38.6 The inspection contemplated in this Clause 37 will be conducted:-

38.6.1 during Business Hours;

38.6.2 with the minimum of interference in the provision of the Services and the

Private Party’s other operations.

39 OCCUPATIONAL HEALTH AND SAFETY

The Private Party shall maintain proof of compliance with the Occupational Health

and Safety Act and produce the same to the NDoT within 24 (twenty four) hours of a

request for same.

40 OWNERSHIP IN THE PRIVATE PARTY

40.1 The Private Party shall ensure that:-

40.1.1 it complies in all respects with the provisions set out in Schedule5(Target

Group Terms);

40.1.2 for the duration of the Project Term the target for Black Equity in the

Private Party (the “Minimum Black Equity”) set out in in Appendix 5

(Target Group Terms) shall be adhered to and such Equity shall rank at

54


least pari passu with the voting Equity held by the Shareholders who are

not Black People or Black Enterprises; and

40.1.3 the Black Shareholders shall be entitled to earn a return on their

investment in the Project consistent with the returns forecast in the

Financial Model, through their participation in the Distributions declared by

the Private Party from time to time provided that if the returns are less

than or greater than the returns forecast in the Financial Model the Black

Shareholders shall earn pro-rata less or more than the returns forecast in

the Financial Model.

40.2 The Target Group Report shall set forth in relation to each Shareholder on a

quarterly basis during the Project Term:-

40.2.1 the Equity ownership of that Shareholder and details of all changes

whatsoever in such ownership in that Financial Year (including, without

limitation, changes effected through any acquisition or disposal of issued

shares, or through any subscription for new shares);

40.2.2 the Shareholder Loans of that Shareholder and details of all changes in

the amount of such Shareholder Loans in that Financial Year (including,

without limitation, changes effected through repayments);

40.2.3 the voting rights attaching to all classes of Equity owned by that

Shareholder in that Financial Year; and

40.2.4 details of all Distributions declared to and received by that Shareholder in

that Financial Year.

41 PRIVATE PARTY MANAGEMENT CONTROL

41.1 The Private Party shall ensure that for the duration of the Project Term it

complies with the targets set out in in Appendix 5 (Target Group Terms) as they

relate to Private Party management control.

41.2 The Private Party shall comply with the Employment Equity Act and implement

its current employment equity plan, as substituted from time to time in

accordance with that Act. The Private Party shall furnish the NDoT with:-

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41.2.1 each successive employment equity plan submitted by the Private Party in

accordance with the Employment Equity Act within 10 (ten) Business

Days following the date of submission of that plan; and

41.2.2 a copy of each report submitted by the Private Party to the NDoT of

Labour (or its successor) pursuant to section 21 of the Employment Equity

Act within 10 (ten) Business Days following the date of submission of that

report.

42 PRIVATE PARTY SKILLS DEVELOPMENT

42.1 The PrivateParty shall meet its skills development plan in accordance with

Appendix 5 (Target Group Terms) and the targets set out in therein in relation to

skills development each Subcontractor shall meet the annual skills development

targets set forth in in Appendix 5 (Target Group Terms) hereto and shall apply

no less than an amount equal to 5% (fivepercent) of the aggregate of the

Private Party and SubcontractorExpenditure on learning programmes and

learnership in the learning programmes for employees as a percentage of

leviable amount.

42.2 The Private Party shall include in its Target Group Report, on an quarterly

basis:-

42.2.1 a complete statement as to whether it has met or exceeded the targets

set forth in in Appendix 5(Target Group Terms);

42.2.2 a complete statement of all targets set forth in the skills development plan

for that Financial Year that have been achieved by the Private Party in

that Financial Year, together with details of the costs incurred by the

Private Party in that Financial Year in respect of such targets;

42.2.3 a complete statement of all targets (if any) set forth in the skills

development plan for that Financial Year that have not been achieved by

the Private Party in that Financial Year, together with the Private Party’s

reasons for not achieving these targets;

42.2.4 details of the portion (if any) of its Annual Skills Development Commitment

56


for that Financial Year not applied by the Private Party towards the

implementation of any of its skills development targets for that Financial

Year, together with the Private Party’s reasons for not applying the full

Annual Skills Development Commitment in that Financial Year; and

42.2.5 verification of the skills development elements of the Target Group Report

by the auditor of the Private Party.

42.3 The Target Group Report shall set forth, in relation to each Subcontractor, on

an quarterly basis, the information set out in this Clause 42.

42.4 The Target Group Report shall include the validation of the employment equity

contributions as set out in this Clause by the respective auditors of the Private

Party and the Subcontractors.

43 ENTERPRISE AND SUPPLIER DEVELOPMENT

The Private Party shall procure and the Sub-Contractors shall ensure that the total

Capital Expenditure and Project Operational Expenditure shall meet the targets set

out in Appendix 5 (Target Group Terms).

43.1 The Private Party shall and shall procure that the Subcontractors comply in all

respects with the provisions set out in Appendix 5(Target Group Terms).

43.2 The Private Party shall ensure that:-

43.2.1 no less than 40% (forty percent) of the total OPEX and CAPEX forecast in

the Financial Model to be incurred by the Private Party and

Subcontractorin which Black People and/or Black Enterprises will

participate in the manner described in Appendix 5(Target Group Terms);

43.2.2 it and each Subcontractor shall expend no less than 30% (thirty percent)

of the total procurement budget of that Subcontractor in respect of the

Project under procurement contracts with EMEs and QSE.

44 LOCAL SOCIO ECONOMIC IMPACT

44.1 The Private Party shall and shall procure that the Subcontractors comply in all

respects with the provisions set out in Appendix 5 (Target Group Terms).

57


44.2 The Private Party shall ensure that it, and each Subcontractor, in undertaking

the Project, promotes Socio-Economic Development and meet the

commitments.

45 TARGET GROUP REPORT

45.1 The Private Party shall within 30 (thirty) Business Days of the last day of each

quarter during the Project Term submit a Target Group Report to the NDoT

detailing it compliance with setting out that information specified in Clauses40

(OWNERSHIP IN THE PRIVATE PARTY), 41 (PRIVATE PARTY

MANAGEMENT CONTROL), 42 (PRIVATE PARTY SKILLS DEVELOPMENT,

43 (ENTERPRISE AND SUPPLIER DEVELOPMENT), 44 (LOCAL SOCIO

ECONOMIC IMPACT) and 45 (TARGET GROUP REPORT) as well as

Appendix 5 (Target Group Terms). The Target Group Report shall be certified

in all respects by the Private Party’s and the Subcontractor’s (if applicable)

independent BBBEE advisors or auditors. Failure by the Private Party to comply

with its obligations in terms of thisClauseshall result in a Private Party Default.

45.2 The NDoT must respond with any comments or disputes in respect of the

Target Group Report within 30 (thirty) days of submission of the Target Group

Report.

45.3 If the NDoT does not respond or dispute the Target Group Report within the

time period specified in Clause 45.2, the Private Party shall deliver a notice to

the NDoT informing it of such non-responsiveness and requesting its response.

45.4 Penalties relevent to each of the element are detailed in Appendix 5 (Target

Group Terms).

46 TERMINATION FOR NDoT DEFAULT

On the occurrence of any NDoT Defaultthe Private Party mayserve notice on the

NDoT of the occurrence (and specifying details) of such NDoT Default and

requesting that it remedies or rectifies such breach. If the relevant NDoT Default has

not been remedied or rectified the breach within 14 (fourteen) days, the Private

Party mayterminate this Agreement by written notice to the NDoT of such

termination to be effective no sooner than 30 (thirty) days (“the notice period”) after

58


receipt by the NDoT of written notice to that effect. The Private Party shall not

exercise or purport to exercise any rights to terminate this Agreement (or accept any

repudiation of this Agreement) except as expressly provided for herein.

47 TERMINATION FOR PRIVATE PARTY DEFAULT

47.1 Notification

The Private Party shall notify the NDoT of the occurrence, and details, of any

Private Party Default and of any event or circumstance which is likely, with the

passage of time or otherwise, to constitute or give rise to a Private Party

Default, in either case promptly on the Private Party becoming aware of its

occurrence.

47.2 NDoT’s Options

On the occurrence of a Private Party Default, or within a reasonable time after

the NDoT becomes aware of the same, the NDoT may:-

47.2.1 in the case of the Private Party Default referred to in sub-Clauses

3.1.80.9, 3.1.80.10, 3.1.80.11, 3.1.80.12, 3.1.80.13, 3.1.80.14, 3.1.80.15,

3.1.80.16 of the definition of Private Party Default, terminate this

Agreement in its entirety by notice in writing having immediate effect;

47.2.2 and while the same is subsisting, in the case of any other Private Party

Default referred in sub-Clauses 3.1.80.1, 3.1.80.2, 3.1.80.3, 3.1.80.4,

3.1.80.5, 3.1.80.6,3.1.80.7, or 3.1.80.8, of the definition of Private Party

Default, serve notice of default on the Private Party requiring the Private

Party at the Private Party’s option either:-

47.2.3 to remedy the Private Party Default referred to in such notice of default (if

the same is continuing) within 20 (twenty) Business Days of such notice of

default being delivered; or

47.2.4 to put forward, within 20 (twenty) Business Days of such notice of default

being delivered, a reasonable programme for remedying the Private Party

Default (“Remedy Programme”). The Remedy Programme shall specify

59


in reasonable detail the manner in, and the latest date by, which such

Private Party Default is proposed to be remedied. The Private Party shall

only have the option of putting forward a Remedy Programme if it first

notifies the NDoT within 5 (five) Business Days of receipt of the notice of

default that it proposes to do so.

47.3 Remedy Provisions

47.3.1 Where the Private Party puts forward a Remedy Programme, the NDoT

shall have 10 (ten) Business Days from receipt of the same within which

to notify the Private Party that it does not accept the Remedy Programme,

failing which the NDoT shall be deemed to have accepted the Remedy

Programme. Where the NDoT notifies the Private Party that it does not

accept the Remedy Programme, the Parties shall endeavour within the

following 5 (five) Business Days to agree any necessary amendments to

the Remedy Programme put forward.In the absence of agreement within 5

(five) Business Days, the question of whether the Remedy Programme

(as the same may have been amended by agreement) will remedy the

Private Party Default in a reasonable manner and within a reasonable

time period (and, if not, what would be a reasonable programme) may be

referred by either Party for resolution in accordance with Clause 59

(FAST-TRACK DISPUTE RESOLUTION).

47.3.2 If:-

47.3.2.1 the Private Party Default notified in a notice of default is not remedied

before the expiry of the period referred to in the notice; or

47.3.2.2 where the Private Party puts forward a Remedy Programme which has

been accepted by the NDoT or has been determined to be

reasonable, the Private Party fails to achieve any element of the

Remedy Programme or to complete the Remedy Programme by the

specified end date for the Remedy Programme (as the case may

be); or

47.3.2.3 any Remedy Programme put forward by the Private Party is rejected by

the NDoT as not being reasonable, and the dispute resolution

60


procedure does not find against that rejection,

then the NDoT may terminate this Agreement in its entirety terminate by

written notice to the Private Party of such termination to be effective no

sooner than 30 (thirty) days (“the notice period”) after receipt by the NDoT

of written notice to that effect.

47.4 NDoT’s Costs

47.4.1 The Private Party shall reimburse the NDoT with all reasonable costs

incurred by the NDoT in exercising any of its rights in terms of this Clause

47 (TERMINATION FOR PRIVATE PARTY DEFAULT).

47.4.2 The NDoT shall not exercise, or purport to exercise, any right to terminate

this Agreement except as expressly set out in this Agreement. The rights

of the NDoT (to terminate or otherwise) under this Clause 47.4 (NDoT’s

Costs) are in addition (and without prejudice) to any other right which the

NDoT may have in Law to claim the amount of any direct loss or damages

suffered by the NDoT on account of the acts or omissions of the Private

Party (or to take any action other than termination of this Agreement).

48 TERMINATION FOR FORCE MAJEURE

If, in the circumstances referred to in Clause 29, the Parties have failed to reach

agreement on any modification to this Agreement pursuant to that Clause within 180

(one hundred and eighty) days of the date on which the Party affected serves notice

on the other Party in accordance with that Clause , either Party may at any time

afterwards terminate this Agreement by written notice to the other Party having

immediate effect, provided always that the effects of the relevant events of Force

Majeure continue to prevent either Party from performing any material obligation

under this Agreement.

49 TERMINATION FOR CORRUPT ACTS

49.1 The Private Party warrants that in entering into this Agreement it has not

committed any Corrupt Act.

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49.2 If the Private Party, any Shareholder, any Subcontractor or any Affiliate of any

of them (or anyone employed by or acting on behalf of any of them, including

Subcontractors of the Subcontractors) commits any Corrupt Act then the NDoT

shall be entitled to act in accordance with Clauses 49.2.1 to 49.2.7 (both

inclusive) below:-

49.2.1 if the Corrupt Act is committed by the Private Party, any Shareholder, any

director of the Private Party, any director of any Shareholder, or any

employee of the Private Party or of any Shareholder acting under the

authority of or with the knowledge of a director of the Private Party or such

Shareholder, as the case may be, then in any such case, the NDoT may

terminate this Agreement with immediate effect by giving written notice to

the Private Party;

49.2.2 if the Corrupt Act is committed by an employee of the Private Party or of

any Shareholder acting of his or her own accord, then in any such case,

the NDoT may give written notice to the Private Party of termination and

this Agreement will terminate, unless within 10 (ten) Business Days of the

PrivateParty’s receipt of such notice that employee’s involvement in the

Project is terminated and (if necessary) the performance of any part of the

Services previously performed by him or her is performed by another

person;

49.2.3 if the Corrupt Act is committed by a Subcontractor, director of a

Subcontractor or an employee of a Subcontractor acting under the

authority or with the knowledge of a director of that Subcontractor, then in

any such case, the NDoT may give written notice to the Private Party of

termination and this Agreement will terminate, unless within 60 (sixty)

Business Days of its receipt of such notice the Private Party terminates

the relevant Subcontract and within that 60 (sixty) Business Days

procures the performance of the relevant part of the Services by another

person, where relevant, in accordance with Clause 56 (CESSION AND

DELEGATION);

49.2.4 if the Corrupt Act is committed by an employee of a Subcontractor acting

of his or her own accord, then the NDoT may give notice to the Private

62


Party of termination and this Agreement will terminate, unless within 10

(ten) Business Days of its receipt of such notice the Private Party

procures the termination of that employee’s involvement in the Project and

(if necessary) procures the performance of that part of the Services

previously performed by that employee to be performed by another

person;

49.2.5 if the Corrupt Act is committed by a Lender, a director of a Lender or any

employee of a Lender acting under the authority or with the knowledge of

a director of that Lender, then in any such case the NDoT may give

written notice to the Private Party of termination and this Agreement will

terminate, unless within 80 (eighty)) Business Days of its receipt of such

notice the Private Party procures the termination of such Lender’s

involvement in the Project if the Corrupt Act is committed by any

employee of a Lender acting of his or her own accord, then the NDoT may

give written notice to the Private Party of termination and this Agreement

will terminate, unless within 10 (ten) Business Days of the Private Party’s

receipt of such notice, that employee’s involvement in the Project is

terminated;

49.2.6 if the Corrupt Act is committed by any other person not specified in

Clauses 49.2.1 to 49.2.5 above but involved in the Project as a

Subcontractor or supplier to any Subcontractor or to the Private Party,

then the NDoT may give notice to the Private Party of termination and this

Agreement will terminate unless within 5 (five) Business Days the Private

Party procures the termination of such person’s involvement in the Project

and (if necessary) procures the performance of the relevant part of the

Services by another person, provided that where the Corrupt Act is

acknowledged by that person, the NDoT may terminate this Agreement on

40 (forty) Business Days written notice to the Private Party unless the

Private Party procures the termination of that person’s involvement in the

Project and (if necessary) procures the performance of the relevant part of

the Services by another person; and

49.2.7 any notice of termination under this Clause 49 (TERMINATION FOR

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CORRUPT ACTS) shall specify:-

49.2.8 the nature of the Corrupt Act;

49.2.9 the identity of the party or parties who the NDoT believes has committed

the Corrupt Act; and

49.2.10 the date on which this Agreement will terminate in accordance with the

applicable provisions of this Clause 49 (TERMINATION FOR CORRUPT

ACTS).

49.3 Without prejudice to its other rights or remedies under this Clause 49

(TERMINATION FOR CORRUPT ACTS), the NDoT shall be entitled to recover

from the Private Party, the greater of:-

49.3.1 the amount or value of the gift, consideration or commission which is the

subject of the Corrupt Act; and

49.3.2 any direct losses sustained by the NDoT in consequence of any breach of

this Clause by the Private Party.

49.4 Nothing contained in this Clauseshall prevent the Private Party from paying any

proper commission or bonus to its employees within the agreed terms of their

employment.

49.5 The Private Party shall notify the NDoT of the occurrence (and details) of any

Corrupt Act promptly on the Private Party becoming aware of its occurrence.

49.6 Where the Private Party is required to replace any Subcontractor pursuant to

this Clause, the provisions of Clause 43 (ENTERPRISE AND SUPPLIER

DEVELOPMENT) shall apply and be construed accordingly.

50 TERMINATION COMPENSATION

50.1 In the event of termination as a result of NDoT Default, the NDoT shall pay the

Private Party an amount equal to the Private Party’s loss of profits for a 6 (six)

months.

64


50.2 In the event of termination as a result of Force Majeure, the NDoT shall pay the

Private Party an amount equal to the Private Party’s loss of profits for a 3

(three) months.

50.3 For the avoidance of doubt, the Private Party shall not be entitled to any

termination payment in the event of termination as a result of Private Party

Default.

50.4 Subject to Clause 52 , the discharge by the NDoT of its payment obligation in

terms of this Clause 50, shall be in full and final settlement of all the Private

Party’s claims and rights against the Department and all NUDs for breaches

and/or termination of this Agreement and the Project Documents whether under

contract, delict or otherwise, save for any liability of the Department which arose

prior to the Termination Date.

51 EFFECTS OF TERMINATION

51.1 Termination

Notwithstanding any provision of this Agreement, on service of a notice of

termination, this Agreement shall only terminate in accordance with the

provisions of this Clause 51.

51.2 Continued Effect– No Waiver

Notwithstanding any breach of this Agreement by either Party, and without

prejudice to any other rights which the other Party may have in relation to it, the

other Party may elect to continue to treat this Agreement as being in full force

and effect and to enforce its rights under this Agreement. The failure of either

Party to exercise any right under this Agreement, including any right to

terminate this Agreement and any right to claim damages, shall not be deemed

a waiver of such right for any continuing or subsequent breach.

51.3 Continued Performance

Subject to any exercise by the NDoT of its rights to perform, or to procure a

third party to perform, the obligations of the Private Party, the Parties shall

65


continue to perform their obligations under this Agreement, notwithstanding the

giving of any notice of default or notice of termination, until the termination of

this Agreement becomes effective in accordance with the provisions of this

Clause 50.

51.4 Transfers to NDoT on Termination or Expiry

On termination of this Agreement for any reason in accordance with its terms or

within 20 (twenty) Business Days prior to the Expiry Date, the Private Party

shall:-

51.4.1 deliver to the NDoT, free from all encumbrances and/or liabilities, the

Listed Vehicles and all Intellectual Property developed exclusively for the

Project,other than any Licensed Intellectual Property (which is governed

by Clause 51.4.2) and copyright licenses for any computer programmes

(which is governed by Clause 51.4.5);

51.4.2 subject to the provisions of Clause 55 (INTELLECTUAL PROPERTY OF

THE NDoT), procure that any Licensed Intellectual Property shall be

provided to the NDoT (or its nominee) and the NDoT (or its nominee)

shall, to the extent possible, be granted a perpetual non-exclusive,

royalty-free license to use such Licensed Intellectual Property, or where

same cannot be obtained, the Private Party shall procure that the NDoT

(or its nominee) is given a license on terms consistent with those provided

to the Private Party;

51.4.3 deliver to the NDoT all confidentailinfomation, data and proprietry material

of the NDoT’s in its possession;

51.4.4 deliver to the NDoT (as far as not already delivered to the NDoT) one

complete set of deliver to the NDoT the records referred to in Clause 53

(INFORMATION AND AUDIT ACCESS) except where such documents

are required by Law or internal policies to be retained by the Private Party

or any Subcontractor (in which case complete copies shall be delivered to

the NDoT);

51.4.5 deliver to the NDoT, without prejudice to Clause 55 (INTELLECTUAL

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PROPERTY OF THE NDoT), any copyright licenses for any computer

programmes (or licenses to use the same) necessary for the Services (but

excluding computer programmes which have been developed or acquired

by the Private Party for its own use and not solely for the purposes of

provision of any of the Services at the Facilities or the assignment or

transfer of which is otherwise restricted); and

51.4.6 ensure that provision is made in all relevant contracts of any description

whatsoever to which the Private Party or any Subcontractor is a party to

ensure that the NDoT will be in a position to exercise its rights, and the

Private Party will be in a position to comply with its obligations in terms

this Clause 51.4;

it being agreed that fair consideration has been paid for such assets, rights and

obligations by virtue of the Unitary Payment.

51.5 Transitional Arrangements

For a period of 6 (six) months both before and after the Expiry Date or in the

case of any earlier termination for the period from the service of notice of

termination to 6 (six) months after the Termination Date, the Private Party shall

have the following obligations:-

51.5.1 the Private Party shall co-operate fully with the NDoT and any successor

providing services to the NDoT in the nature of any of the Services or any

part of the Services in order to achieve a smooth transfer of the manner in

which the NDoT obtains services in the nature of the Services and to

avoid or mitigate (to the extent required by the common law) in so far as

reasonably practicable any inconvenience or any risk to the health and

safety of the employees of the NDoT and members of the public;

51.5.2 if the NDoT wishes to conduct a tender process with a view to entering

into an agreement for the provision of services (which may or may not be

the same as, or similar to, the Services or any of them) following the

expiry or earlier termination of this Agreement, the Private Party shall co-

operate with the NDoT fully in such tender process including (without

limitation) by:-

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51.5.3 providing any information relating to the Project which the NDoT may

reasonably require to conduct such tender excluding any information

which is commercially sensitive to the Private Party (and, for the purposes

of this sub-Clause , commercially sensitive shall mean information which

would if disclosed to a competitor of the Private Party or Subcontractor

give that competitor a competitive advantage over the Private Party or

Subcontractor and thereby prejudice the business of the Private Party or

Subcontractor); and

51.5.4 assisting the NDoT by providing all (or any) participants in such tender

process with access on reasonable notice and at reasonable times to the

workshops which are leased from the NDoT.

51.6 Continuing Obligations

Save as otherwise expressly provided in this Agreement:-

51.6.1 termination of this Agreement shall be without prejudice to any accrued

rights and obligations under this Agreement as at the date of termination;

and

51.6.2 termination of this Agreement shall not affect the continuing rights and

under Clauses 47.4 (NDoT’s Costs), 50(TERMINATION

COMPENSATION),51(EFFECTS OF TERMINATION),

53 (INFORMATION AND AUDIT ACCESS), 55(INTELLECTUAL

PROPERTY OF THE NDoT), 58 (DISPUTE RESOLUTION), 59 (FAST-

TRACK DISPUTE RESOLUTION), 60 (GOVERNING LAW AND

JURISDICTION), 69 (NOTICES AND LEGAL SERVICE), 71

(CONFIDENTIALITY) or under any other provision of this Agreement

which is expressed to survive termination or which is required to give

effect to such termination or the consequences of such termination.

52 NDoT OPTION TO ACQUIRE VEHICLES ON TERMINATION

52.1 On expiry of termination of this Agreementfor any reason whatsoever, the NDoT

shall have the option to acquire any ot the Vehicles. Should the NDoT wish to

exercise this option it shall furnish the Private Party with written notice of such

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intention together with details of the Vehicle/s it wishes to acquire (the “Listed Vehicles”) no later than 30 (thirty) days before the Expiry Date or 30 (thirty)

days after the Termination Date, as the case may be. On receipt of such notice

from the NDoT, the Private Party shall take all necessary steps to effect the

transfer to the NDoT of the Listed Vehicleswithin 30 (thirty) days of receipt of

the notice, provided that the NDoT or its nominated service provider pays to the

Private Party:

52.1.1 the BookValue of the Listed Vehicles,

52.1.2 the Rentals for the Listed Vehicled from the Termination Date until the

date of payment of the Book Value.

53 INFORMATION AND AUDIT ACCESS

53.1 The Private Party shall furnish the NDoT with the reports set out in the SLA and

Schedule 19 (Reports) on the terms and format stipulated therein.

53.2 The Private Party shall provide to the NDoT all information, documents, records

and the like in the possession of, or available to, the Private Party as may

reasonably be requested by the NDoT for the purpose of complying with any of

its statutory reporting obligations including its reporting obligations under the

PFMA and the Auditor-General Act.

53.3 Without limiting the generality of the aforegoing, the Private Party shall note and

facilitate the NDoT’s compliance with the Promotion of Access to Information

Act, 2000 in the event that the NDoT is required to provide information to any

person pursuant to that Act, but subject to any limitations on disclosure in the

Promotion of Access to Information Act, 2000.

53.4 Without derogating from Clause 53.2, the Private Party shall:-

53.4.1 at all times:-

53.4.2 shall provide accurate information to the NDoT and the NUDs in order to

enable them to manage their transport requirements. Such information

shall be provided on the basis set out in the SLA and shall reflect

information which is current to within 24 (twenty four) hours.when

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requested by the NDoT, furnish the summary of any of the

aforementioned costs in such form and detail as the NDoT may

reasonably require; and

53.4.3 afford such facilities as the NDoT may reasonably require for its

representatives to examine the records maintained under this Clause ;

53.4.4 for the duration of the Project Term deliver to the NDoT:

53.4.5 as soon as they become available (and in any event within 90 (ninety)

days of the end of each Financial Year) copies of its financial statements

for that period which shall contain an income statement and a balance

sheet and a cash flow statement audited and certified by a firm of

independent accountants; and

53.4.6 as soon as they become available (and in any event within 30 (thirty) days

of the end of each of its financial half year and Financial Year end) copies

of its unaudited financial statements for that half year or year (as the case

may be) which shall contain an income statement, a balance sheet and a

cash flow statement; and

53.4.7 prepare the financial statements referred to in this Clause 53 on the basis

consistently applied in accordance with IFRS and those financial

statements shall give a true and fair view of the results of its operations for

the period in question and the state of its affairs as at the date to which

the financial statements are made up and shall disclose or reserve against

all the liabilities (actual or contingent) of the Private Party; and

53.4.8 at the request of the NDoT, furnish the NDoT with any and all information

provided by it to the Lenders during the term of thisAgreement.

53.5 The Private Party shall keep books of account in accordance with IFRS and

have same available for inspection by the NDoT upon reasonable notice, shall

present a report of the same to the NDoT as and when requested and shall

allow the NDoT to arrange for an audit to be conducted from time to time as

may be required under the Public Audit Act.

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53.6 The NDoT’s rights of access to the books of account shall include the

appointment of cost auditors for verification of cost expenditure, for the purpose

of Clauses31 (NDoT VARIATIONS) and 32 (PRIVATE PARTY VARIATIONS).

53.7 The Private Party shall maintain or produce the following records or reports in

respect of all the Services:-

53.7.1 a full record of all incidents relating to health, safety and security which

occur during the term of thisAgreement; and

53.7.2 full records of all maintenance procedures carried out during the term of

thisAgreement;

and the Private Party shall have the items listed above available for inspection

by the NDoT upon reasonable notice, and shall present a report of the same to

the NDoT as and when requested.

53.8 The Private Party shall, within 3 (three) year after the Expiry Date deliver such

records to the NDoT in such format as the NDoT may reasonably require.

53.9 Upon the termination of thisAgreement, and in the event that the NDoT wishes

to enter into another agreement for the operation and management of the

Vehicles and without prejudice to the identity of any new private party, the

Private Party shall comply with all reasonable requests of the NDoT to provide

information relating to the Private Party’s costs in relation to the Project. Such

information shall include information relating to the anticipated cost of a transfer

of the Services to a new private party.

54 STORAGE OF PROJECT DATA

54.1 The Private Party shall ensure the back-up, storage and safe custody of all

Project Data generated by or maintained on a computer or similar system

during the Project Term, in accordance with Good Industry Practice. Without

prejudice to this obligation, the Private Party shall submit to the NDoT its

proposals for the back-up, storage and safe custody of such data, materials and

documents and the NDoT shall be entitled to object and make its own proposals

if the same is not in accordance with Good Industry Practice. The Private Party

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shall comply, and shall cause the Subcontractors to comply, with all procedures

to which the NDoT has given its approval or which are determined in terms of

Clause 58 (DISPUTE RESOLUTION). The Private Party may vary its

procedures for such back-up and storage subject to submitting its proposals for

change to the NDoT, who shall be entitled to object on the basis set out above.

54.2 The Private Party shall provide the NDoT with any Project Data requested by

the NDoT from time to time, and shall provide the NDoT with a complete list of

all Project Data at least 6 (six) months prior to the Expiry Date.

55 INTELLECTUAL PROPERTY OF THE NDoT

55.1 All intellectual property rights whatsoever, whether capable of registration or

not, regarding the NDoT’s name, trademarks, logos, image and all other

intellectual property matters relating to the NDoT, including its name,

trademarks, logos and/or image shall remain the sole property of the NDoT.

55.2 Subject to existing rights and obligations and Clause 55.3, the NDoT shall, on

prior written application by the Private Party, grant a non-exclusive revocable

right and license to the Private Party to use the NDoT’s trademarks and logos

for a period not to exceed the remainder of the Project Term.

55.3 In order to establish and maintain standards of quality and propriety acceptable

to the NDoT, in the event that the Private Party desires to use the NDoT’s

trademarks or logos in any way, the Private Party shall first submit the concept

or a sample of the proposed use to the NDoT for approval, which shall be in its

sole and absolute discretion. The NDoT shall use reasonable endeavours to

advise the Private Party of its approval or disapproval of the concept or sample

within 20 (twenty) Business Days of its receipt of the concept or sample. If the

NDoT approves the concept or sample, the Private Party shall not depart

therefrom in any respect without the NDoT’s further prior written approval.

55.4 If at any time the NDoT revokes its approval for the specified use of any

trademark or logo, the Private Party shall forthwith discontinue all use of such

trademark or logo and shall remove from public sale or distribution any

previously approved product in respect of which the NDoT has revoked its

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approval. The costs incurred by the Private Party as a result of such revocation

shall be borne by the Private Party if the grounds for the revocation include any

ground described in Clause 55.5.

55.5 The NDoT may revoke its approval immediately upon 5 (five) Business Days

written notice to the Private Party if the Private Party, any Subcontractor or any

of its or its Subcontractors’ officers, directors or employees commits any crime

or otherwise engages in conduct which violates any Law, or engages in any

conduct that offends against public morals and decency and, in the NDoT’s

reasonable opinion, materially prejudices the reputation and public goodwill of

the NDoT.

55.6 The Private Party acknowledges that the name(s) of the NDoT (the “Protected Names”) are associated with and peculiar to the NDoT and are the intellectual

property of the NDoT. Consequently, the Private Party agrees that the sole and

exclusive ownership of the Protected Names shall vest in the NDoT.

55.7 In circumstances where the Private Party utilises any of the Protected Names,

either on its own or in combination or association with any other name, it does

so only in terms of this Agreement and with the prior approval of the NDoT. On

termination or expiry of this Agreement, the Private Party shall not be entitled to

operate or conduct any business using any of the Protected Names either on its

own or in combination or association with any other name.

55.8 Within 60 (sixty) Business Days after the end of the Project Term and where the

Private Party has operated a company utilising any of the Protected Names with

the permission of the NDoT, the Private Party shall either:-

55.8.1 de-register the company bearing any of the Protected Names; or

55.8.2 change the name to a name not substantially similar to any of the

Protected Names.

55.9 The naming of the Private Party’s business operation shall be undertaken in

consultation with the NDoT and subject to the NDoT’s approval. In

circumstances where the name chosen by the Private Party and approved by

the NDoT is not part of the NDoT’s intellectual property, then the rights of the

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NDoT contemplated in Clause 55.8 shall not be applicable and the intellectual

property shall be the sole property of the Private Party.

55.10 The Private Pay shall procure, to the maximum extent possible, that all

Licensed Intellectual Property provided to the NDoT (or its nominee) shall be

licensed to the NDoT (or its nominee).

56 CESSION AND DELEGATION

56.1 Subject to Clauses9.2 (General Obligations) and 50 (Effects of Termination):-

56.1.1 this Agreement and shall endure to the benefit of, them and their

respective successors-in-title and permitted transferees and assigns; and

56.1.2 save as expressly permitted hereunder the Private Party shall not, without

the prior written approval of the NDoT, assign, cede, delegate, transfer or

otherwise dispose of any right or obligation under this Agreement to any

other person.

56.2 The NDoT shall not assign, cede, delegate, transfer or otherwise dispose of any

right or obligation under this Agreement to any other person, save with the prior

written approval of the Private Party (such approval not to be unreasonably

withheld or delayed) or to give effect to any mandatory requirement of any Law.

57 CHANGES IN CONTROL AND BLACK EQUITY

57.1 For the duration of the Project Term, the Private Party shall procure that there is

no direct Change in Control in excess of 5% (five percent) in aggregate in the

Private Party without the prior written approval of the NDoT, acting reasonably.

57.2 Notwithstanding the provisions of Clause 57.1, prior to the expiry of a period of

8 (eight) or 5 (five) years from the Signature Date, the Private Party shall

procure that there is no sale, assignment, cession, transfer, exchange,

renunciation or other disposal of the whole or any part of the Equity and/or the

Shareholder Loans held directly in or owed directly by the Private Party, nor any

dilution of the Equity, without the prior written approval of the NDoT, acting

reasonably.

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One period to be selected by NDoT after Evaluation of Tender


57.3 The Private Party shall procure that any disposal of the Equity shall be subject

to the following:-

57.3.1 a pro rata portion of the Shareholder Loans held by that Shareholder must

be disposed of with the Equity;

57.3.2 any Equity held by a Target Group may only be disposed of to a Target

Group; and

57.3.3 the targets set out in Schedule 5(Target Group Terms) must not be

breached.

57.4 The Private Party shall procure that for the duration of the Project Term:-

57.4.1 there is no dilution in the aggregate Equity holdings of the Black

Shareholders below the Minimum Black Equity; and

57.4.2 there is no Change in Control (at any time) in any Shareholder that is a

Black Enterprise, which will result in that Shareholder no longer being a

Black Enterprise.

57.5 For the purpose of this Clause 57 (CHANGES IN CONTROL AND BLACK

EQUITY), the term “subsidiary” shall have the meaning as defined in the

Companies Act.

57.6 Where a failure by the Private Party to comply with its obligations under this

Clause is not within its own control:-

57.6.1 the Private Party shall be entitled to rectify the failure within a period of 6

(six) months from the date on which the failure to comply with the

provisions of this Clause 57 came to its attention (the “Rectification

Period”). A continued failure by the Private Party to comply with its

obligations in terms of this Clause 57 after the rectification period shall

constitute an event of failure for that particular Financial Year for the

purposes of Clause 57.7hereunder;

57.6.2 Any dispute between the Parties regarding the provisions of this

Clauseshall be determined in accordance with the provisions of Clause 59

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(FAST-TRACK DISPUTE RESOLUTION).

57.7 Failure by the Private Party to comply with its obligations under this Clause 57

for 2(two) consecutive Financial Years shall result in a Private Party Default.

58 DISPUTE RESOLUTION

58.1 Referable Disputes

The provisions of this Clause 58 shall, save where expressly provided

otherwise, apply to any dispute arising in relation to or in connection with any

aspect of this Agreement between the Parties.

58.2 Performance to Continue

No reference of any dispute to any resolution process in terms of this Clause 58

shall relieve either Party from any liability for the due and punctual performance

of its obligations under this Agreement.

58.3 Litigation

58.3.1 Save where any dispute has been expressly referred for determination in

terms of Clause 59 (FAST-TRACK DISPUTE RESOLUTION), if informal

resolution of any dispute has failed, then the dispute may be referred to

litigation in the courts by either Party.

58.3.2 Neither Party is limited in any proceedings before the court to the

information, evidence or arguments used in the informal attempts to

resolve the dispute.

58.4 Interlocutory Proceedings

Notwithstanding the previous provisions of this Clause 58 either Party shall

have the right to seek appropriate interdictory relief or an order of specific

performance against the other in an appropriate Court having jurisdiction in

South Africa.

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58.5 Internal Referrals

If a dispute arises in relation to any aspect of this Agreement, the Private Party

and the NDoT shall attempt in good faith to come to an agreement in relation to

the disputed matter, in accordance with the following:-

58.5.1 all disputes shall first be referred to the Private Party Representative (or

his alternate) and the NDoT Representative (or his alternative) (if

necessary with consultation back to their organisations) to resolve such

dispute;

58.5.2 if the Parties have been unable to resolve the dispute within 5 (five)

Business Days of referral to persons specified in Clause 58.5.1, either

Party may refer the dispute for a decision by the Accounting Officer of the

NDoT and the Chief Executive Officer of the Private Party;

58.5.3 in attempting to resolve the dispute in accordance with the provisions of

this Clause 58.5, the Parties shall (and shall procure that their employees

and representatives shall) use reasonable endeavours to resolve any

matter or issue without delay by negotiations or any other informal

procedure which the relevant representatives may adopt. Those attempts

shall be conducted in good faith in an effort to resolve the matter or issue

without necessity of formal proceeding; and

58.5.4 any matter or issue which has not been resolved by the representatives

contemplated in Clause 58.5.2 within 5 (five) Business Days of the dispute

being referred to them (or any longer period agreed between the Parties)

or in respect of which either Party has refused to participate in the

informal procedures contemplated in this Clause 58.5, shall be treated as

a dispute in respect of which informal resolution has failed.

58.6 Suspension of Prescription

The Parties agree that, for the purposes of the Prescription Act, 1969 as

amended from time to time, time shall cease to run in respect of any dispute on

the date of service of the relevant notice referring that dispute for mediation,

and if any other subsequent proceedings are instituted in respect of that

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dispute, time shall continue to cease to run from the date of service of the

relevant summons or notice of motion.

59 FAST-TRACK DISPUTE RESOLUTION

59.1 Disputes expressly referred for determination pursuant to this Clause 59 shall

be determined by the relevant Independent Expert.

59.2 Within 5 (five) Business Days after a dispute has been referred by either Party

to the appropriate Independent Expert, the Independent Expert shall require the

Parties to submit in writing their respective arguments. The Independent Expert

shall, in his/her absolute discretion, consider whether a hearing is necessary in

order to resolve the dispute.

59.3 It shall be entirely within the power and competence of the Independent Expert

to decide upon any matters related to the proper preparation of the dispute for

hearing and in that regard the Independent Expert shall direct the Parties

accordingly.

59.4 The Independent Expert shall set the date for the hearing, choose the venue

(which must be a venue in South Africa) for the hearing and determine all

matters regarding any aspect of the hearing. Moreover, the Independent Expert

can decide whether at the hearing the Parties are to give oral evidence or

confine themselves to presenting their cases in writing or by some other

appropriate procedure. In this regard, the Independent Expert must be guided

by considerations of fairness, the cost-effective resolution of the dispute, and

the need to resolve the dispute quickly.

59.5 The Independent Expert shall provide both Parties with his/her written decision

on the dispute, within 20 (twenty) Business Days of the referral (or such other

period as the Parties may agree after the referral). The Independent Expert

shall give his/her reasons for the award, if so requested by either Party.

59.6 The Independent Expert’s costs of any referral and the costs of the Parties

arising out of the referral, including its legal costs and the costs and expenses

of any witnesses shall be borne by the Party determined by the Independent

Expert. .

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59.7 The Independent Expert shall act impartially and may take the initiative in

ascertaining the facts and the Law. The Independent Expert need not strictly

observe the principles of Law and may decide the matter submitted to him/her

in accordance with what he/she considers equitable in the circumstances.

59.8 Should the need arise for either Party to seek interim or temporary relief before

the adjudication is finalised, that Party may apply to the Independent Expert to

grant such interlocutory order or give the required temporary relief and the

Independent Expert shall have the same power to do so as if the matter were

one heard by a Judge in the High Court of South Africa, save that if by law such

power or order cannot be exercised or given by an Independent Expert then,

and then only, should the Parties refer such matter to such High Court.

59.9 The proceedings shall be confidential and all information, data or

documentation disclosed or delivered by either Party to the Independent Expert

in consequence of or in connection with his/her appointment as Independent

Expert shall be treated as confidential. Neither the Parties nor the Independent

Expert shall, save as permitted by Clause 71 (CONFIDENTIALITY) of this

Agreement, disclose to any person any such information, data or documentation

unless the Parties otherwise agree in writing, and all such information, data or

documentation shall remain the property of the Party disclosing or delivering the

same and all copies shall be returned to such Party on completion of the

Independent Expert’s work.

59.10 The Independent Expert is not liable for anything done or omitted in the

discharge or purported discharge of his/her functions as Independent Expert,

unless the act or omission is grossly negligent or in bad faith. Any employee or

agent of the Independent Expert is similarly protected from liability.

59.11 Should any Party fail to co-operate with the Independent Expert with the result

that in the view of the Independent Expert such default or omission prejudices

the adjudication process, then the Independent Expert can either:-

59.11.1 give that Party written notice that unless it remedies the default or

omission within a given time, it will forfeit the right to continue to

participate in the adjudication; or

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59.11.2 warn the Party in writing that its default or omission may make it liable to a

punitive order of costs irrespective of whether it succeeds in the

adjudication or not and such punitive award of costs may include an order

of attorney and client costs or attorney and own client costs as those

expressions are understood in the Uniform Rules of Court.

59.12 The Independent Expert shall be deemed not to be an arbitrator but shall render

his/her decision as an expert and the provisions of the Arbitration Act, 1965 as

amended from time to time, and any other Law relating to arbitration shall not

apply to the Independent Expert or his/her determination or the procedure by

which he/she reaches his/her determination. The Independent Expert’s decision

shall be final and binding on the Parties.

60 GOVERNING LAW AND JURISDICTION

60.1 This Agreement shall be governed by and construed in accordance with the

laws of South Africa.

60.2 Subject to the provisions of Clause 59 (FAST-TRACK DISPUTE

RESOLUTION), each Party agrees that the North Gauteng Division of the High

Court of South Africa shall have non-exclusive jurisdiction to hear and decide

any application, action, suit, proceeding or dispute in connection with this

Agreement, and irrevocably submits to the jurisdiction of the North Gauteng

Division of theHigh Court of South Africa.

61 AMENDMENTS

No provision of this Agreement (including, without limitation, the provisions of this

Clause ) may be amended, substituted or otherwise varied, and no provision may be

added to or incorporated in this Agreement, except (in any such case) by an

agreement in writing signed by the duly authorised representatives of the Parties.

62 WAIVER

62.1 Any relaxation, indulgence or delay (together “Indulgence”) by either Party in

exercising, or any failure by either Party to exercise, any right under this

Agreement shall not be construed as a waiver of that right and shall not affect

80


the ability of that Party subsequently to exercise that right or to pursue any

remedy, nor shall any Indulgence constitute a waiver of any other right (whether

against that Party or any other person).

62.2 The waiver of any right under this Agreement shall be binding on the waiving

Party only to the extent that the waiver has been reduced to writing and signed

by the duly authorised representative(s) of the waiving Party.

63 ENTIRE AGREEMENT

63.1 Except where expressly provided otherwise in this Agreement, this Agreement

constitutes the entire agreement between the Parties in connection with its

subject matter and supersedes all prior representations, communications,

negotiations and understandings concerning the subject matter of this

Agreement.

63.2 Each of the Parties acknowledges that:-

63.2.1 it does not enter into this Agreement on the basis of and does not rely,

and has not relied, upon any statement or representation (whether

negligent or innocent) or warranty or other provision (in any case whether

oral, written, express or implied) made or agreed to by any person

(whether a Party to this Agreement or not) except those expressly

contained in or referred to in this Agreement, and the only remedy

available in respect of any misrepresentation or untrue statement made to

it shall be a remedy available under this Agreement; and

63.2.2 this Clause 63 shall not apply to any statement, representation or

warranty made fraudulently, or to any provision of this Agreement which

was induced by fraud, for which the remedies available shall be all those

available under any Law governing this Agreement.

64 CONFLICTS WITH OTHER CONTRACTS

In the event of any conflict between this Agreement and any Project Document, the

provisions of this Agreement will prevail between the Parties. In the event of any

conflict between the main body of this Agreement and any Schedule/s, the provisions

81


of the main body of this Agreement will prevail between the Parties. In the event of

any conflict between any of the Project Documents the following order of precedence

will apply, with agreements listed earlier in this list prevailing over those listed later:-

64.1 the main body of the Agreement;

64.2 the Schedules included in the Agreement; and

64.3 the Project Documents.

65 SEVERABILITY

Whenever possible, each provision of this Agreement shall be interpreted in a manner

which makes it effective and valid under any Law, but if any provision of this

Agreement is held to be illegal, invalid or unenforceable under any Law, that illegality,

invalidity or unenforceability shall not affect the other provisions of this Agreement, all

of which shall remain in full force.

66 REPRESENTATIVES

66.1 NDoT’s Representative

66.1.1 The NDoT shall appoint from the Signature Date until the Expiry Date an

individual (the “NDoT’s Representative”) whose identity shall be notified to

the Private Party to act as the NDoT’s duly authorised representative for

all purposes connected with this Agreement. The NDoT shall notify the

Private Party in writing forthwith upon the replacement at any time of the

NDoT’s Representative and such replacement shall not be effective until

notice has been given.

66.1.2 The NDoT’s Representative may delegate any of his functions from time

to time to a person or persons the identity of who shall be notified to the

Private Party and references in this Agreement to the NDoT’s

Representative shall be construed to include such persons.

66.1.3 Any notice, instruction or information required to be given by or made to

the NDoT shall only be valid if given by or delivered to the NDoT’s

Representative.

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66.2 Private Party’s Representative

66.2.1 The PrivateParty shall appoint from the Signature Date until the Expiry

Date, an individual (the “Private Party’s Representative”) whose identity

shall be notified to the NDoT to act as the Private party’s duly authorized

representative for all purposes connected with this Agreement. The

Private Party shall notify the NDoT in writing forthwith upon the

replacement at any time of the Private Party’s Representative and such

replacement shall not be effective until such notice has been given.

66.2.2 Any notice, instruction or information required to be given by or made to

the Private Party shall only be valid if given by or delivered to the Private

Party’s Representative.

67 GOVERNANCE STRUCTURES

In order to facilitate the smooth and effective management of the relationship, the

parties will implement and adhere to the contract governance structures set out in

Schedule 20 as amended from time to time.

68 COUNTERPARTS

This Agreement may be executed in any number of identical counterparts, all of which

when taken together shall constitute one agreement. Any single counterpart or a set

of counterparts taken together which, in either case, are executed by the Parties shall

constitute a full original of this Agreement for all purposes.

69 NOTICES AND LEGAL SERVICE

69.1 All notices and any other communications whatsoever (including, without

limitation, any approval, consent, demand, query or request) by either Party in

terms of this Agreement or relating to it shall be given in writing and sent by

registered post, or delivered by hand, or transmitted by facsimile to the recipient

Party at its relevant address set out below:-

69.1.1 if to the NDoT, at:-

Address: [NDoT]

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Facsimile Number: [ ]

Marked for the Attention of: the Director General

With a copy to: [ ]

69.1.2 if to the Private Party, at:-

Address: [ ]

Facsimile Number: [ ]

Marked for the attention of: [ ]

69.2 Either Party may, by written notice to the other Party, change any of the

addresses at which or the designated person for whose attention those notices

or other communications are to be given.

69.3 Any notice or other communication given by any Party to the other Party which:-

69.3.1 is sent by registered post to the addressee at its specified address shall

be rebuttably presumed to have been received by the addressee on the

7th (seventh) day after the date of posting; or

69.3.2 is delivered by hand to the addressee during the Business Hours of the

addressee at its specified address shall be rebuttably presumed to have

been received by the addressee at the time of delivery; or

69.3.3 is transmitted by facsimile to the addressee during the Business Hours of

the addressee at its specified facsimile number shall be rebuttably

presumed to have been received by the addressee on the date of

transmission as indicated on the sender’s facsimile transmission report.

69.4 The previous provisions of this Clause 69 shall not invalidate any notice or other

communication actually given and received otherwise than as described in

those provisions.

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69.5 The Parties choose their respective physical addresses in Clause 76.1 as their

respective domicilia citandi et executandi at which all documents relating to any

legal proceedings to which they are a party may be served. If that address is

changed to another address which is not a physical address in South Africa,

then the original address shall remain the domicilium citandi et executandi of

the relevant Party until it nominates a new physical address within the Republic

of South Africa in writing to be its new domicilium citandi et executandi.

70 PUBLIC RELATIONS AND NDoT

70.1 The Private Party acknowledges that certain information pertaining to the

Project is required to be disclosed in accordance with the statutory reporting

obligation of the NDoT to publish information about the performance of the

Private Party and/or any other information as it may be required to publish from

time to time in response to enquiries from:-

70.1.1 Parliament and its members and officers in accordance with the

provisions of the PFMA; and

70.1.2 the Auditor-General under the Auditor-General Act; and

70.1.3 persons acting in the public interest in accordance with the provisions of

the Promotion of Access to Information Act, 2000.

70.2 Subject to Clause 70.3, neither Party shall communicate with representatives of

the press, television, radio or other communications media on any matter

concerning thisAgreement without the prior approval of the other Party, such

consent not to be unreasonably withheld. Save that to the extent that

Confidential Information is to be disclosed in accordance with Clause 70, the

approval shall be deemed to be given by the Private Party in terms of Clause

70.

70.3 To the extent that the NDoT is obliged to disclose or publish information

pursuant to Clause 70.1, it undertakes to the Private Party, if time permits, to

consult with the Private Party prior to any communication contemplated by this

Clause 70.2, and if time does not so permit, such consultation shall be

dispensed with.

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71 CONFIDENTIALITY

71.1 Each Party shall keep all Confidential Information of the other Party confidential

and, while this Agreement remains in force and for a period of 8 (eight) or 5

(five) years after it terminates for any reason, shall not use or exploit such

Confidential Information for any purpose other than for the purpose for which it

was disclosed to such Party. Each Party shall also use reasonable endeavours

to prevent its employees, agents and Subcontractors from making any

disclosure to any person of any ConfidentialInformation of the other Party while

this Agreement remains in force and for a period of 8 (eight) or 5 (five) years

after it terminates for any reason.

71.2 The disclosures permitted under Clauses 3.1.27.12 to 3.1.27.13 (both inclusive)

of the definition of Confidential Information may only be made subject to

obtaining appropriate confidentiality restrictions consistent with the provisions of

this Clause from the intended recipients.

72 COSTS AND EXPENSES

Each Party shall be responsible for paying its own costs and expenses incurred in

connection with the negotiation, preparation and execution of this Agreement.

SIGNED at [ ] on this [ ]day of [ ]

___________________________________by [ ]THE ACCOUNTING OFFICER(duly authorised) for and on behalf ofTHE GOVERNMENT OF THE REPUBLICOF SOUTH AFRICA THROUGH THE DEPARTMENT OF TRANSPORT

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One period to be selected by NDoT


One period to be selected by NDoT


SIGNED at [ ] on this [ ] day of [ ]

___________________________________(who warrants his authority hereto)for and on behalf of[ ] (RF) (PTY) LTD

87