SERVICE LEVEL AGREEMENT WITH IMPLEMENTING AGENT
PROGRAMME IMPLEMENTING AGENT AGREEMENT
Made and entered into by and between
DEPARTMENT OF XX
(Here after referred to as the “CLIENT”)
Herein represented by
XX
Duly authorised thereto
and
XX
(Here after referred to as the “AGENT”)
Herein represented by
XX
Duly authorised thereto by resolution attached as Appendix B
INDEX
Page
Context and Scope of this Agreement3
ClauseHeading
1Interpretation4
2Definitions4
3Appointment of the AGENT5
4The Grant5
5Purpose of Grant6
6Period of this Agreement6
7Project Area6
8Approval of Projects6
9Responsibility of the CLIENT7
10Responsibility of the AGENT8
11Payment of Grant9
12Co-ordination Mechanism9
13Media Liaison10
14No Partnership10
15Insurance’s11
16Limitation on Cession11
17Indulgences11
18Default11
19Arbitration of Disputes arising from this Agreement12
20Termination of Agreement14
21Domicilium Citandi et Executandi14
APPENDICES
Appendix A - Project Specification16
Appendix B - Resolution of Programme Implementing AGENT17
CONTEXT AND SCOPE OF THIS AGREEMENT
WHEREAS
AThe CLIENT has allocated funds for purposes of a programme called ‘CAPITAL WORKS PROJECTS’; and
BThe AGENT has the expertise and experience to plan and implement the projects within the programme;
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
SERVICE LEVEL AGREEMENT (SLA: DPW) Page 1
SERVICE LEVEL AGREEMENT WITH IMPLEMENTING AGENT
1.
INTERPRETATION
1.1The head notes to the various clauses of this Agreement and the index are inserted for reference purposes only, and shall in no way govern or effect the construction of the Agreement.
1.2This document shall be deemed to constitute the sole memorandum of agreement between the parties, with reference to its subject matter; and shall cancel and negate any prior verbal or written communications relating to such subject matter, whether expressed or implied, including any letters, memoranda or minutes.
1.3This Agreement shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa.
1.4Words importing persons shall include bodies corporate, and vice versa.
1.5The singular shall include the plural, and vice versa, and reference to any gender shall include the other gender.
1.6Any reference to a statutory provision shall include a reference to that provision as modified, amended, replaced, or re-enacted from time to time.
1.7If any provision in a definition is a substantive provision, conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in the definitions clause.
2.
DEFINITIONS
In this Agreement, unless clearly inconsistent with or otherwise indicated by the context;
2.1“Programme”means the “CAPITAL WORKS PROJECTS” Programme of the CLIENT.
2.2“The CLIENT”means “XXX”, as recorded on the cover page to this Agreement.
2.3“The AGENT”means “XXX”, as recorded on the cover page of this Agreement who will function as an Implementing AGENT (IA) on behalf of the CLIENT in terms of the Programme as defined in Appendix A.
2.4“The Grant”means the amount specified in Appendix A which the CLIENT will pay to the AGENT for the purpose of implementing the Programme.
2.4.1“Initial Payment”means the first payment to be made to the AGENT by the CLIENT as specified in Appendix after being negotiated.
2.5“PROGRAMME PMS”means the Programme Management System of the PROGRAMME, which is to be used as the procedure for the implementation of the PROGRAMME by the AGENT. The CLIENT may, at its sole discretion, amend the PMS from time to time. Should any proposed changes to the PMS have financial implications to the AGENT, the CLIENT will consult with the AGENT prior to implementing such changes.
2.6“Parties”means the CLIENT and the AGENT.
2.7“IA Area”means the geographic area in the Republic of South Africa specified in Appendix A in which the AGENT is to confine its activities.
2.8“Period of Agreement”means the period specified in Appendix A, commencing on signing of this Agreement.
2.9“Projects’means projects to be agreed upon by the parties in writing to be planned and implemented by the AGENT in terms of the Programme for disadvantaged communities within the IA area.
3.
APPOINTMENT OF THE AGENT
3.1The CLIENT appoints the AGENT for the purpose of implementing the PROGRAMME and the AGENT shall act as an independent contractor, and has no authority to enter into agreements binding the CLIENT.
3.2The AGENT accepts the appointment on the terms and conditions as stated herein.
4.
THE GRANT
4.1 Although the budget for work to be done will be with the CLIENT, Head of DPW will be held responsible in terms of the PFMA, for payments made by CLIENT on the basis of certificates signed by or on behalf of the Head of DPW.
4.3The parties agree to meet no later than 6 month prior to the expiry of the period of the Agreement, for the purpose of attempting to reach agreement on the renewal of this Agreement and on the making of a further grant, for further implementation of the PROGRAMME by the AGENT within the project area, as may be agreed upon by the parties.
5.
PURPOSE OF GRANT
5.1The Grant shall be applied and expended by the AGENT exclusively to implement the PROGRAMME within the project area.
5.2The Grant shall be used for no other purpose whatsoever without the CLIENT’s prior written consent.
5.3The Agent shall submit to the Client an audited Account of how the budget was expended on the programme and summary per project.
6.
PERIOD OF THIS AGREEMENT
6.1The Parties mutually acknowledge the importance of speed of implementation of the PROGRAMME, and accordingly it is a material term of the Agreement, and the AGENT hereby warrants accordingly, that it shall do all things reasonably necessary, and use its best endeavours to ensure that the projects are implemented and completed prior to the expiry of the Period of Agreement.
6.2Notwithstanding the provisions of Clause 6.1 above, in the event of circumstances arising, which render impractical the completion of specific projects within the project period, the Parties shall liaise and attempt to agree on an appropriate extension of time, failing agreement in this regard, the matter shall be determined by arbitration, as set down in this Agreement.
6.3In the event of either Party failing to act within the spirit and intent of this provision, and persisting in its default for a period of 21 (twenty one) days, despite delivery of a written notice to remedy such default, then, in such event, the aggrieved Party shall be entitled to construe such failure as a breach of this Agreement, giving rise to the consequences and remedies envisaged in Clause 18 of this Agreement.
7.
IA AREA
The AGENT shall conduct all activities with respect to implementation of the Programme within the project area specified in Appendix A, unless directed otherwise in writing by the CLIENT.
8.
IDENTIFICATION AND APPROVAL OF PROJECTS
8.1Projects shall be identified in terms of the process set down in 9.1 and shall be approved by the HOD of CLIENT.
9.
RESPONSIBILITY OF THE CLIENT
9.1Carry out needs assessment for Capital Works with the advice of the AGENT.
9.2 Prioritise Capital Works by means of an Annual Business Plan, in consultation
with the AGENT.
9.3 CLIENT will involve AGENT in its strategic planning for infrastructure.
9.4Budget for Capital Works, including cost of any private sector professional
Services, which might be necessary for the implementation of the projects.
9.5Compile an annual Business Plan that will specify exactly which projects have to
be undertaken within the financial year and submit to the Head of the AGENT by
the end of November in the preceding year.
9.6 Execution of projects in the Business Plan will depend on finalisation of the
budget by Treasury.
9.7CLIENT will prioritise according to its needs.
9.8The CLIENT must sign off the Business Plan or someone delegated in writing. The Head of CLIENT must sign off any changes to the Business Plan or someone delegated in writing.
9.9Changes must be implementable within the financial year and agreed to by the
AGENTor someone delegated in writing.
9.10 Client to participate in site meetings facilitated by AGENT and report to the IA
delegate any issues requiring attention. IA consultant to document issues in
minutes and or as site instruction.
9.11 Budget for all maintenance activities, including routine, periodic, planned,
unplanned, minor and major maintenance .
9.12Carry-out routine maintenance as per the attached list of routine maintenance.
9.13 Payment of suppliers of goods and services rendered to CLIENT on the written
recommendation of the Head of the AGENT or delegated authority on completed
work.
9.14 Monitor and manage the Capital Works and Maintenance Works budget.
9.15Approve or reject variation orders within 7 (seven) working days of submission to
CLIENT as per standard conditions of contract.
9.16Identify construction sites and check their availability before requesting the
AGENT to execute the projects.
10.
RESPONSIBILITY OF THE AGENT
10.1It shall be the responsibility of the AGENT to utilise the Grant in the implementation of projects and carried out strictly in terms of Appendix A.
10.2do all such things necessary to manage implementation and successful completion of projects in terms of Appendix A.
10.3Verify the site; confirm its legal and technical availability before any development is commenced;
10.4Provide CLIENT with technical advice to inform the needs assessment and prioritisation of works.
10.5Provide the CLIENT with cost estimate of works when requested.
10.6Execute the works in terms of the properly authorised Business Plan of the CLIENT and or any authorised changes in the Business Plan and Programme Implementation plan.
10.7Procurement of professional and contract services in terms of the prevailing Supply Chain Management regulations.
10.9Contract management during project implementation including handling of any defects during the retention period. Be responsible for the execution of the works in terms of the specification by the contractors.
10.10Recommend variation orders to the CLIENT in terms of the contract, for approval prior to any work being done, and inform CLIENT of extensions of time with financial implications.
10.11AGENT should, as part of this agreement, provide a policy for termination /
Cancellation of late completed projects.
10.12 Submit monthly progress reports to the CLIENT or delegated authority on
or before the seventh (7th) of each month, and in time, provide cash flow forecasts per project for the remainder of the financial year for each project. CLIENT will continue with its present reporting system as per National Treasury Infrastructure Reporting Model.
10.13 Appoint consultants based in the Province within four (4) weeks of receiving an
official request from CLIENT from the Roaster System.
10.14 Appoint contractors within four (4) weeks of tender closing date.
10.15 The AGENT shall make sure all work is carried out in conformance with the regulations
framed under the Occupational Health and Safety Act of 1993 and the Minerals Act (Act 50
of 1991) to ensure the safety of personnel and structures that are of risk
11.
PAYMENT OF GRANT
11.1A certificate authorised by the AGENT's accounting officer is to be included with the payment request, which certificate should confirm the accurate value of the work carried out in the previous month.
11.2Only projects which have been approved in terms of Appendix A may be included in the AGENTs interim payment requests, and the AGENT is required to provide proof of such project approvals with each payment request.
11.3In response to payment requests as stipulated in Clause 11.2, the CLIENT undertakes, after consulting and agreeing to make payment, to process the payment claim within 21 working days.
11.4The AGENT shall supply on request to the CLIENT copies of any of the financial records requested by the CLIENT.
11.5The CLIENT may at the CLIENTs cost have an audit performed on the PROGRAMME at any time. The AGENT is required to cooperate with the auditor so appointed by the CLIENT.
12.
CO-ORDINATION MECHANISM
12.1An Infrastructure Programme Team meeting shall be held monthly to ensure smooth communication between the CLIENT and the AGENT. The HODs commit themselves to send delegates to the meetings who have to make decisions at the meetings. The meetings shall discuss, inter alia, the following:
12.1.1 The Business Plan and Project Implementation Plan for the current
financial year.
12.1.2 Prioritisation of projects on sound technical grounds in addition to CLIENT
needs analysis.
12.1.3Progress of the projects and review of the program.
12.1.4 Reconciliation of budget monitoring and management report.
12.1.5 Identify problem areas and recommend solutions.
12.1.6Review and evaluate the applicability of existing specifications.
12.1.7The Business Plan for the following year.
12.2The AGENT shall report progress monthly to the CLIENT and to other stakeholders if directed to do so by the CLIENT
12.3The AGENT is required to co-ordinate with other role players, as necessary, in order to ensure effective co-ordination of implementation of the PROGRAMME.
The diagram below depicts the relationship between the CLIENT and DPW through the Service Level Agreement.
3.
MEDIA LIAISON
13.1The AGENT undertakes that it will make no statement of any kind, whether written or verbal, to the media in connection with the PROGRAMME or any project, without first obtaining the CLIENT’s approval of such statement.
14.
NO PARTNERSHIP
14.1The relationship of the Parties in terms of this Agreement shall involve a close collaboration between two independent contracting parties, and in the circumstances shall not imply any partnership in the legal sense, nor shall it constitute either Party being the authorised representative of the other Party, particularly so with regard to the AGENTs dealing with third parties.
15.
INSURANCES
15.1The AGENT is required to ensure that insurances are provided within each project with respect to:
15.1.1Workman’s Compensation;
15.1.2Contractors’ Risk;
15.1.3Public Liability.
15.2The AGENT is required to either provide the insurance cover for the projects as a whole, or to ensure that such cover is provided in each and every project undertaken.
15.3The AGENT hereby indemnifies the CLIENT against any claims, losses, proceeding, damages or liabilities, which may result from the AGENTs actions, or failure to act.
16.
LIMITATION ON CESSION
16.1The rights and obligations for the Parties in terms of this Agreement shall be personal and not capable of being ceded, assigned or delegated by either of them to another person, save with the prior written consent of the other Party, who may refuse to consent.
16.2Each Party warrants that he is acting as a principal and not as an AGENT to an undisclosed principal.
17.
INDULGENCES
No extension of time, latitude or other indulgence which may be given or allowed by either Party to the other, shall constitute a waiver or novation of this Agreement, or affect such party’s rights, or prevent such Party from strictly enforcing due compliance with each and every provision of this Agreement.
18.
DEFAULT
18.1In the event of any breach by the AGENT of the terms and conditions of this Agreement, and in the event that the AGENT remains in default after 21 (twenty one) days written notice calling for rectification of the relevant matter, the CLIENT shall be entitled to exercise all or any of the following rights:
18.1.1to suspend further payments to the AGENT;
18.1.2to require immediate repayment of the full balance of monies remaining in the AGENTs bank account.
18.1.3itself, or through a third party of its choice, to assume and take control of the completion of any particular uncompleted project, in which event the AGENT agrees, if requested, to permit the CLIENT or its nominee to assume responsibility for, and benefit of, all agreements in place for the project in question.
18.2Should the AGENT dispute the existence of a breach entitling the CLIENT to the above mentioned rights and remedies, the matter/s in issue may be referred, at the request of either party, for determination by an arbitrator to be appointed in terms of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, and by reason of the financial and social imperative underlying this Agreement, the arbitrator shall be entitled to make interim orders to ensure that work proceeds and that no material delays occur to the detriment of a community.
18.3In the event of any breach by the CLIENT of the terms and conditions of this Agreement, and in the event of the CLIENT remaining in default after 21 (twenty one) days written notice, calling for rectification of the relevant matter, the AGENT shall be entitled:
18.3.1To suspend all work in respect of any project affected by such breach; and/or
18.3.2To enforce strict compliance with the terms and conditions of this Agreement; or
18.3.3To cancel this Agreement.
18.4The provisions of Clause 18.2 shall apply mutatis mutandis, in the event of the CLIENT disputing the existence of a breach entitling the AGENT to the rights and remedies envisaged in Clause 18.3.
19.
ARBITRATION OF DISPUTES ARISING FROM THIS AGREEMENT
19.1Either Party shall be entitled within 10 (ten) days after failure by the parties to reach an agreement, to require, by giving written notice to the other, that the dispute be submitted to arbitration.
19.2If the parties cannot agree as to the arbitrator, the arbitrator shall be nominated by the President of the Law Society of South Africa, or its successors.
19.3The party instituting these proceedings shall appoint the arbitrator and the arbitrator shall notify the parties before hand of the remuneration required by him for his services.
19.4Within 30 (thirty) days after receipt of the notice in Clause 19.3, each party shall submit to the arbitrator a full statement of its case, in which shall be set out all the evidence, sworn statements, facts, submissions and expert opinion, etc., supporting or proving such parties contention in regard to the matter in dispute and serve a copy thereof on the other party.
19.5Within 14 (fourteen) days of receipt of such copy of the other party’s statement of case, either party may submit a further supplementary statement to the arbitrator and serve a copy thereof on the other party.
19.6If requested by the arbitrator, the parties may submit and serve further statements within 14 (fourteen) days of the request.
19.7The arbitrator shall then consider and decide the dispute on the papers before him, without any legal representation or appearance by the parties.
19.8If the arbitrator considers that he cannot decide the matter on the papers before him, he may call for other evidence or for witnesses to testify at a place determined by him in the presence of the parties, who may also question such witnesses.
19.9The arbitrator shall be entitled to make such award, including an award for specific performance, an interdict, and damages or otherwise as he, in his discretion, may deem fit and appropriate.
19.10The arbitrator shall decide the dispute according to the law of South Africa.
19.11The arbitrator shall at all times have regard for the intention of the parties and shall resolve the dispute in a summary manner.
19.12Any award made by the arbitrator:
19.12.1Shall be final and binding upon the parties;
19.12.2Shall be carried into effect by the parties;