CESA Form of Agreement Conditions of …

1 Form of Agreement for Consulting Engineering Services July 2003 Conditions of Agreement Project: Name Client: Name Consulting Engineer: Name Conditions of Agreement July 2003 PRODUCED BY: CONSULTING ENGINEERS SOUTH AFRICA (CESA) CESA is a voluntary organisation of individual consulting firms formed to uphold standards and advance the usefulness of Consulting Engineers by promoting the interests of its members and their Clients. It is a focal point for contact between Consulting Engineers and allied disciplines, the public, government agencies, private enterprise, professional and government organisations. CESA publishes a wide variety of documents regularly used by the profession. These include Conditions of engagement for various Services, forms of Agreement , an annual directory of member firms, and a variety of guidelines, advisory notes and reports.

2 The Chief Executive Officer and staff of CESA are available at all times to offer advice to member firms and Client-bodies, and CESA serves as a centre for general information about the profession: P O Box 68482 Bryanston 2021 Tel.: (011) 463 2022 Fax: (011) 463 7383 e-mail: This document, based on rules published in terms of the Engineering Profession Act No. 46 of 2000, in as far as they are applicable, is published and recommended for use by Consulting Engineers South Africa and is copyright. Issued July 2003 Conditions of Agreement July 2003 CONSULTING ENGINEERS SOUTH AFRICA (CESA) Conditions OF Agreement FOR CONSULTING ENGINEERING SERVICES EXPLANATORY NOTES This Form of Agreement has been developed by CESA in response to the needs of Consulting Engineers and their Clients in respect of the wide range of services being handled by members of CESA.

3 This Form replaces all CESA s existing Model Forms of Agreement in respect of new Agreements. The Form of Agreement is made up of the following components: - Agreement and Specific Provisions The formal document which will be completed and signed by the two parties. Any variations to the Conditions of Agreement may be recorded and incorporated into the Specific Provisions. Conditions of Agreement The standard clauses defining the responsibilities of the parties on matters, which would normally be applicable to all forms of appointment. Appendix A: Guideline Scope of Services and Remuneration The Client and Consulting Engineer will specify the scope of the services which the Consulting Engineer has to provide for the project, or portion of a project and will define the remuneration, or the method of determining the remuneration, to be paid to the Consulting Engineer for providing the services.

4 It is recommended that Appendix A be created specifically for each project, but the Guideline Scope of Services and Tariff of Fees for Persons Registered in terms of the Engineering Profession Act 2000 (Act No. 46 of 2000) is provided for standard Conditions . This guideline document may be used as is, or suitably amended to suit particular requirements. This document is produced in a format that allows the sections required to form the Client/Consulting Engineer Agreement for a project to be bound in a single project specific document. Any additional pages required should be attached to the relevant section of the document. All changes or variations to the standard Conditions of this document required for a project should be dealt with in the Specific Provisions and not by altering the standard wording.

5 Words or expressions in bold font are defined in Clause of the Conditions of Agreement . Issued - July 2003 Conditions of Agreement July 2003 Conditions OF Agreement CONTENTS Page 1. DEFINITIONS & INTERPRETATION 1 Definitions 1 Interpretation 2 2. OBLIGATIONS OF THE CONSULTING ENGINEER 3 Duty of Care 3 Exercise of Authority 3 Designated Representative 3 Co-operation with Others 3 Notice of Change 3 Construction Stage Services 3 3. OBLIGATIONS OF THE CLIENT 4 Information 4 Decisions 4 Assistance 4 Services of Others 4 Notice of Change 4 Issue of Instructions 5 4. DURATION OF Agreement 5 Commencement 5 Completion 5 Force Majeure 5 Termination by the Client 5 Termination by the Consulting Engineer 6 Payment due upon Suspension or Termination 6 Rights and Liabilities of the Parties 6 Conditions of Agreement July 2003 Page 5.

6 REMUNERATION GENERAL 6 Payment 6 Time for Payment 7 Disputed Invoices 7 Reimbursable Expenses 7 Independent Audit 7 6. LIABILITY AND INSURANCE 7 Liability of the Consulting Engineer 7 Liability of the Client 7 Compensation 8 Duration of Liability 8 Limit of Compensation 8 Insurance for Liability and Indemnity 8 Indemnity by the Client 9 Exceptions 9 Rights of Recourse 9 7. GENERAL PROVISIONS 9 Governing Law 9 Changes in Legislation 9 Assignments and Sub-Contracts 9 Ownership of Data, Designs and Documents 10 Conflict of Interest and Corruption 10 Notices 11 Publicity and Publication 11 Confidentiality 11 Variations 11 Electronic Communications 11 Sole Agreement 11 8.

7 SETTLEMENT OF DISPUTES 12 Settlement 12 Mediation 12 Arbitration/Litigation 12 Conditions of Agreement July 2003 1 Conditions OF Agreement 1. DEFINITIONS & INTERPRETATION Definitions The following words and expressions shall have the meanings assigned to them except where the context requires otherwise: - (1) " Agreement " means this Form of Agreement for Consulting Engineering Services, including the Agreement and Specific Provisions, the Conditions of Agreement , together with any appendices thereto. (2) "Client" means the contracting party named in the Agreement , who employs the Consulting Engineer. (3) "Consulting Engineer" means the contracting party named in the Agreement , who is employed by the Client to perform the services.

8 (4) "Contract" means the Agreement or agreements between the Client, or his designated representative, and the contractor(s) for the execution of all or a portion of the works by the contractor(s). (5) "Contract Documents" means all documents relating to the works including those issued by or through the Consulting Engineer or the Lead Consultant, including, but not limited to, the contract drawings, bills of quantities, specifications and schedules and any amendments thereto. (6) "Contractor" means any person or legal person under contract to the Client to execute the works or part thereof and includes any sub-contractor to whom any part of the works has been sub-let by a contractor. (7) "Cost of the works" means the total amount, exclusive of value added tax, certified or which would be certified for payment to contractors (irrespective of who actually carries out the works) in respect of the works designed, specified or administered by the Consulting Engineer, before deduction of liquidated damages or penalties, including (a) a pro-rata portion of all preliminary and general items applicable to the works.

9 And (b) the costs of new materials, goods or equipment, or a fair evaluation, of such material, goods or equipment as if new whether supplied new or otherwise by, or to, the Client and including the cost or a fair evaluation of the cost of installation (the sourcing, inspection and testing of such will comprise additional services by the Consulting Engineer); Conditions of Agreement July 2003 2 (8) "day" means the period between any one midnight and the next. (9) "month" means a period of one month according to the Gregorian calendar commencing with any day of the month. (10) "party" and "parties" means the Client and the Consulting Engineer and "third party" means any other person or entity, as the context requires. (11) "Principal Agent or Lead Consultant" means the party appointed by the Client to take overall responsibility for the administration of the project, including the work of other Consulting Engineers.

10 (12) "Project" means the project named in the Agreement for which the services are to be provided. (13) "Services" means the service or services to be performed by the Consulting Engineer in accordance with the Agreement and comprises Normal Services, Additional Services and Exceptional Services. (14) "Stage" means either the Report Stage, the Preliminary Design Stage, the Design and Tender Stage, the Construction Stage or any other Stage of the services to be performed by the Consulting Engineer, as described in this Agreement . (15) Tax means Value Added Tax, Sales Tax or any other statutory tax or levy applicable to this Agreement . (16) "Works" means the activities on a project for which contractors are under contract to the Client to perform or is intended to be performed, including the supply of goods and equipment.