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Module 3 Template 10 Schedules 11 - 17
Schedule 11
Independent Certifier Agreement
INDEPENDENT CERTIFIER SERVICES AGREEMENT
between
[Independent Certifier]
and
[Institution]
and
[Private Party]
TABLE OF CONTENTS
1. Definitions and interpretation 3
2. Introduction 5
3. Appointment and acceptance 6
4. Duration of IC Agreement 6
5. Reporting Institution and Private Party 6
6. Project Documents 7
7. Certification Services 8
8. The exercise of reasonable skill, care and diligence 10
9. General rights and obligations of the Institution and the Private Party 11
10. Limitation of rights 11
11. Fees payable and payment 12
12. Ownership and publication reports 13
13. Confidentiality 14
14. No agency or partnership 14
15. Termination 15
16. Breach of IC Agreement 15
17. Dispute resolution 17
18. Amendments, variations and additions to the IC Agreement 18
19. Notices 18
20. General 20
1. Definitions and interpretation
1.1 In this IC Agreement, unless the context indicates the contrary, the following words and terms bear the meanings assigned to them and cognate words and terms shall bear corresponding meanings:
1.1.1 "Business Day" - has the meaning in the PPP Agreement;
1.1.2 "Certification Services" - the services to be performed by the Independent Certifier in terms of clause 7;
1.1.3 "Completion Certificate" - has the meaning in the PPPAgreement;
1.1.4 "Contract Period" - the period from the Signature Date until the date of issue of the Completion Certificate;
1.1.5 "Design and Construction
Subcontractor" - [Insert], being the person appointed by the Private Party to undertake the Works;
1.1.6 "IC Agreement" - this agreement and any schedules, annexures and amendments to it;
1.1.7 "Independent Certifier" - refers to [Insert], the service provider providing the Certification for Operation and Maintenance in terms of this IC Agreement;
1.1.8 "Independent Certifier's Fee" - the fee payable to the Independent Certifier as set out in clause 11.1;
1.1.9 "Institution" - [insert description of Institution];
1.1.10 ["Lenders" - the Lender to the Private Party from time to time, as defined in the PPPAgreement;]
1.1.11 "Parties" - the Institution, the Private Party and the Independent Certifier and "Party" shall, as the context requires, be a reference to any one of them;
1.1.12 "PPP Agreement" - the public private partnership, dated [x], between the Institution and the Private Party;
1.1.13 "Private Party" - [insert description of Private Party];
1.1.14 "Project" - has the meaning in the PPPAgreement;
1.1.15 "Project Documents" - has the meaning ascribed thereto in the PPPAgreement;
1.1.16 "Project Schedule" - the Schedule1 to this IC Agreement detailing the programme for the Works and the Scheduled Operation Commencement Date, as amended and updated from time to time in terms of the PPPAgreement and which is attached to the PPPAgreement as Schedule3;
1.1.17 "Scheduled Operation
Commencement Date" - has the meaning in the PPPAgreement;
1.1.18 "Operation Commencement" - has the meaning in the PPPAgreement;
1.1.19 "Operation and Maintenance" - has the meaning in the PPPAgreement;
1.1.20 "Signature Date" - has the meaning in the PPPAgreement;
1.1.21 "South Africa" - the Republic of South Africa as constituted from time to time;
1.1.22 "Subcontractors" - has the meaning in the PPPAgreement;
1.1.23 "VAT" - value-added tax as defined in the Value-Added Tax Act, 1991;
1.1.24 "Works" - has the meaning in the PPPAgreement.
2. Introduction
2.1 The Institution and the Private Party have entered into the PPPAgreement in respect of [insert Project description], to be conducted, in accordance with the PPPAgreement.
2.2 It is a requirement of the PPP Agreement that the Institution and the Private Party jointly appoint an Independent Certifier to carry out the functions and duties assigned to the Independent Certifier in the PPP Agreement.
2.3 The Independent Certifier is an independent advisor willing and qualified to provide the Certification for Operation and Maintenance to the Private Party and the Institution.
2.4 The Institution and the Private Party have agreed to appoint the Independent Certifier, and the Independent Certifier is willing to fulfil the role of "Independent Certifier" under the PPP Agreement in accordance with the terms of this IC Agreement.
2.5 [Relevant parts of clause1 of the PPPAgreement should be included here with suitable amendments where necessary.]
3. Appointment and acceptance
3.1 The Institution and the Private Party jointly appoint the Independent Certifier to execute the Certification for Operation and Maintenance and the Independent Certifier accepts such appointment subject to the terms and conditions set out in this IC Agreement. The Independent Certifier shall owe a duty of care to both the Institution and the Private Party.
3.2 The appointment of the Independent Certifier shall not create an employment contract or relationship between the Parties and the Independent Certifier shall therefore not be entitled to any benefits to which the employees of the Institution or of the Private Party are entitled.
4. Duration of IC Agreement
This IC Agreement shall commence on the Commencement Date and, subject to clauses 15 and 16, shall remain in force and effect for the Contract Period.
5. Reporting Institution and Private Party
5.1 The Independent Certifier undertakes to perform the Certification Operation and Maintenance in accordance with the provisions of this IC Agreement.
5.2 The Independent Certifier shall report to the Institution and the Private Party relating to compliance by the Parties with their obligations under the PPP Agreement, for the purposes of obtaining the Completion Certificate.
5.3 The Independent Certifier shall report to the Institution and the Private Party on any anticipated delays in the Scheduled Operation Commencement Date.
5.4 The Independent Certifier shall attend and report at regular monthly meetings with the Institution and the Private Party on the progress of the Project.
5.5 The Independent Certifier shall comply with all reasonable instructions given to it by the Institution and the Private Party acting together for the purposes of the Independent Certifier conducting the Certification Services, except and to the extent that the Independent Certifier reasonably considers that any such instructions vary or might vary the Certification for Operation and Maintenance or its responsibilities under this IC Agreement, or prejudice or might prejudice the exercise by the Independent Certifier of its professional, fair and impartial judgment under this IC Agreement. In the event that a dispute arises between the Institution, Private Party and the Independent Certifier in respect of any instructions given by the Institution and Private Party (acting together) to the Independent Certifier in accordance with this clause, such dispute shall be referred to dispute resolution in terms of clause 17, save that where a dispute arises between the Institution and the Private Party in respect hereof, such matter shall be resolved in accordance with clause 35 or 36 of the PPPAgreement.
5.6 All instructions to the Independent Certifier shall be given in writing by the Institution and Private Party (acting together). To the extent that the Independent Certifier performs any act without the written instructions of the Institution and Private Party (acting together), such act shall be for the cost of the Independent Certifier and the Independent Certifier shall be liable for any consequences of that act.
6. Project Documents
6.1 The Independent Certifier shall familiarise itself with the Project Documents to the extent necessary to perform its obligations in terms of this IC Agreement.
6.2 The Private Party shall ensure that the requisite information and documentation is provided to the Independent Certifier that is reasonably required to enable it to discharge its responsibilities and duties in terms of this IC Agreement. This information includes, but is not limited to, the following :
6.2.1 the Project Schedule;
6.2.2 copies of working drawings, schedules and specifications prepared by the Private Party and Subcontractors sufficient to demonstrate compliance of the Private Party and Subcontractors against the requirements of the PPP Agreement;
6.2.3 copies of the Private Party’s designs, drawings, the documents register, technical and audit reports, consents, certificates and specifications;
6.2.4 copies of the Private Party’s correspondence relating to building control matters;
6.2.5 copies of all the Private Party’s quality control and quality assurance records, including procedures and method statements;
6.2.6 copies of the Private Party’s commissioning reports;
6.2.7 copies of as-built drawings, operating and maintenance manuals; and
6.2.8 copies of all health and safety plans of the Private Party and/or its Subcontractors.
6.3 Within [x] Business Days of termination or cancellation of this IC Agreement in accordance with clauses 15 and 16 or expiration of the Contract Period, the Independent Certifier shall deliver all copies of the Project Documents in its possession in whatever format held by the Independent Certifier as well as all other documentation, maps, drawings, records and any other material made available to it to the Institution and the Private Party.
7. Certification Services
7.1 The Independent Certifier shall:
7.1.1 monitor the progress of the Works in order to assess whether the Works are being undertaken in accordance with the Project Documents;
7.1.2 audit and monitor the commissioning of the Works and obtain copies of records of the commissioning and test data;
7.1.3 certify that the Project Assets have been supplied and fitted in accordance with Schedule 2 of the PPP Agreement;
7.1.4 obtain a copy of the certificate of occupation in respect of the Facilities from the relevant local authority and a copy of the designer’s completion certificate;
7.1.5 monitor the Institution’s obligations under the Occupational Health and Safety Act, 1993 and compliance by the Private Party, Subcontractors and each of their respective employees, as well as each of the Independent Certifier’s agents, representatives and employees performing the Operation and Maintenance at the Facilities, with all health and safety plans.
7.2 As soon as practically possible and in any event, no later than [x] Business Days after notice from the Private Party that it has complied with its obligations under the PPP Agreement and that the Facilities are ready for final inspection and issuing of the Completion Certificate, the Independent Certifier shall undertake and complete an inspection of the Facilities in order to determine whether in his reasonable opinion:
7.2.1 the Works have been completed in accordance with the Works Specifications, and have been reasonably satisfactorily commissioned by passing all requisite tests detailed in the Works Specifications; and
7.2.2 the Project Assets have been supplied and fitted in accordance with Schedule 2 to the PPP Agreement.
7.3 If the Independent Certifier is of the reasonable opinion, having undertaken an inspection of the Facilities, that the requisites of clause 7.2 have been met, the Independent Certifier shall issue the Completion Certificate to the Private Party.
7.4 In the event that the Independent Certifier is of the reasonable opinion, having undertaken an inspection of the Facilities, that the requisites of clause 7.2 have not been met, the Independent Certifier shall issue a notice to the Institution and the Private Party, specifying the matters which require to be satisfied in order for the Completion Certificate to be issued.
7.5 The Private Party shall notify the Independent Certifier once it considers that it has satisfied the matters outstanding as specified in the notice referred to in clause 7.4. Within [x] Business Days of receipt of such notice from the Private Party, the Independent Certifier shall conduct an inspection of such outstanding works, notify the Institution and the Private Party if all items listed in the notice referred to in clause 7.4 have been attended to its reasonable satisfaction, and issue the Completion Certificate to the Private Party.
7.6 In the event that the Independent Certifier is not satisfied that the matters outstanding as specified in the notice referred to in clause 7.4 have been rectified, it shall issue a notice to that effect to the Institution and the Private Party, such notice to set out details in respect of such outstanding matters as described in clause 7.4. The provisions of clause 7.4 and this clause 7.6 shall apply mutatis mutandis until all matters specified as outstanding in the original notice issued in terms of clause 7.4 have been rectified to the reasonable satisfaction of the Independent Certifier and the Completion Certificate is issued to the Private Party.
7.7 The Independent Certifier shall not at any time be entitled to issue more than one notice to the Institution and the Private Party as set out in clause 7.4, other than to notify the Institution and the Private Party that an item listed in the original notice to the Institution and the Private Party remains unresolved in accordance with clause 7.6.
7.8 The Completion Certificate issued to the Private Party in accordance with clause 7 shall be final and binding.
8. The exercise of reasonable skill, care and diligence
8.1 The Independent Certifier must exercise reasonable skill, care and diligence in the discharge of its obligations under this IC Agreement.
8.2 In undertaking the Certification Services, the Independent Certifier shall exercise that degree of skill, prudence, diligence and foresight which would reasonably and ordinarily be expected from a person in the built-environment industry with skills in engineering and architecture seeking in good faith to comply with its contractual obligations, complying with all applicable laws and regulations, and order or directive of its governing authorities (if any).
8.3 The Independent Certifier shall ensure that reasonable levels of care and responsibility will be exercised by all parties and individuals under the control of the Independent Certifier in the performance of the Independent Certifier's duties and responsibilities as stipulated in this IC Agreement.
8.4 The Independent Certifier shall not offer or give to or accept from any member, employee or representative of the Institution and/or the Private Party any gift or consideration of any kind.
8.5 Without prejudice to its obligations under this IC Agreement or otherwise in law, the Independent Certifier shall maintain professional indemnity insurance with a limit of indemnity of not less than two times the Independent Certifier’s Fee for any one claim in respect of any neglect, error or omission on the Independent Certifier’s part in the performance of its obligations under this IC Agreement for the period as from Commencement Date and expiring [x] years after the date of issue of the Completion Certificate. The Independent Certifier shall maintain such insurance with reputable insurers who are acceptable to the Private Party and Institution, such acceptance not to be unreasonably withheld or delayed. The Independent Certifier shall, prior to commencing the provision of the Certification for Operation and Maintenance produce for inspection by the Institution and the Private Party documentary evidence that such insurance is being properly maintained. This clause shall survive termination of this IC Agreement.