AGREEMENT FOR THE PROVISION OF ARCHITECTURAL CONSULTANCY SERVICES BETWEEN …………… COMPANY AND …………………… LIMITED 3rd Edition 1998 - ISBN 2-88432-015-6 CONTENTS AGREEMENT i GENERAL CONDITIONS DEFINITIONS AND INTERPRETATION Definitions Interpretation OBLIGATIONS OF Scope of Services Normal, Additional and Exceptional Services Duty of Care and Exercise of Authority Client’s Property Information Decisions Assistance 10 Equipment and Facilities 11 Client’s Personnel 12 Services of Others 13 Supply of Personnel 14 Representatives 15 Changes in Personnel 16 Liability between the Parties 2 THE CONSULTANT 2 OBLIGATIONS OF THE CLIENT 3 3 PERSONNEL 4 LIABILITY INSURANCE 16.1 Liability of the Consultant 16.2 Liability of the Client 5 17 16.3 Compensation Duration of Liability 18 Limit of Compensation and Indemnity 18.1 Limit of Compensation 18.2 Indemnity 18.3 Exceptions 6 19 Insurance for Liability and Indemnity 20 Insurance of Client’s Property 21 Agreement Effective 22 Commencement and Completion 6 COMMENCEMENT, COMPLETION, ALTERATION AND 23 TERMINATION OF Variations 24 Further Proposals THE AGREEMENT 25 Delays 26 Changed Circumstances 27 Abandonment, Suspension or Termination 7 a 27.1 By Notice of the Client 27.2 By Notice of the Consultant 8 28 Exceptional Services 29 Rights and Liabilities of Parties 30 Payment to the Consultant 31 Time for Payment 8 PAYMENT 9 32 Currency of Payment 33 Third Party Charges on the Consultant 34 Disputed Invoices 35 Independent Audit 36 Languages and Law 37 Changes in Legislation 38 Assignment and Sub-Contracts 39 Copyright 40 Conflict of Interest / Corruption and Fraud 41 Notices 42 Publication 43 Amicable Dispute Resolution 10 10 10 GENERAL 11 PROVISIONS 11 11 11 11 11 11 SETTLEMENT 12 OF DISPUTES 43.1 Attempt to Resolve 43.2 Referral to Mediator 43.3 Appointment of Mediator 43.4 Agreement of Programme 43.5 Written Agreement to be Binding 43.6 Non-binding Opinion 43.7 Costs of Mediation 43.8 Failure of Mediation 12 12 12 12 12 12 12 13 44 Arbitration 13 PARTICULAR CONDITIONS 14 A References from Clauses in the General Conditions B Additional Clauses 14 16 APPENDICES A Scope of Services B Personnel, equipment, facilities and services of others to be provided by the client C Remuneration and payment 17 18 19 AGREEMENT This Agreement made the _ day of _ Between the General Director of ………………Company (hereinafter called “the Client”) of the one part and the Managing Director of ………… Limited _ (hereinafter called “the Consultant”) of the other part Whereas the Client desires that certain Services should be performed by the Consultant, namely • Architect Consultancy Services and has accepted a proposal by the Consultant for the performance of such Services NOW THIS AGREEMENT WITNESSETH AS FOLLOWS In this Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of the Client/Consultant Model Services Agreement hereinafter referred to The following documents shall be deemed to form and be read and construed as part of the Agreement, namely: a) The Letter of Acceptance; b) The Conditions of the Client/Consultant Model Services Agreement (General Conditions and Particular Conditions); c) The Appendices, namely: Appendix A – Scope of Services Appendix B – Personnel, Equipment, Facilities & Services of Others to be Provided by the Client Appendix C – Remuneration and Payment i In consideration of the payments to be made by the Client to the Consultant as herein after mentioned the Consultant hereby agrees with the Client to perform the Services in conformity with the provisions of the Agreement The Client hereby agrees to pay the Consultant in consideration of the performance of the Services such amounts as may become payable under the provisions of the Agreement at the times and in the manner prescribed by the Agreement In Witness whereof the parties here to have caused this Agreement to be executed the day and year first before written in accordance with their respective laws Authorised signature(s) of Client Mr …………., General Director Address : …………… Company ………… , District ……… Ho Chi Minh City, Viet Nam In the presence of: Name : Mr ………… Signature : Address : Authorised signature(s) of Consultant ………………….the managing director Address: ……… Limited ……………… …………… In the presence of: Name : Signature : Address : i CONDITIONS OF THE CLIENT/CONSULTANT MODEL SERVICES AGREEMENT GENERAL CONDITIONS DEFINITIONS AND INTERPRETATION DEFINITIONS The following words and expressions shall have the meanings assigned to them except where the context otherwise requires: (i) “Project” means the project named in the Particular Conditions for which the Works are to be provided (ii) “Services” means the services to be performed by the Consultant in accordance with the Agreement and comprise Normal Services, Additional Services and Exceptional Services (iii) “Works” means the permanent works to be executed (including the goods and equipment to be supplied to the Client) for the achievement of the Project (iv) “Client” means the party named in the Agreement, who employs the Consultant, and legal successors to the Client and permitted assignees (v) “Consultant” means the party named in the Agreement, who is employed as an independent professional firm by the Client to perform the Services, and legal successors to the Consultant and permitted assignees (vi) “party” and “parties” means the Client and the Consultant and “third party” means any other person or entity as the context requires (vii) “Agreement” means the Conditions comprising the Conditions of the Client/Consultant Model Services Agreement (General Conditions and Particular Conditions) together with Appendix A (Scope of Services), Appendix B (Personnel, Equipment, Facilities and Services of Others to be provided by the Client), Appendix C (Remuneration and Payment), Letter of Acceptance and Formal Agreement if completed, or otherwise as specified in the Particular Conditions INTERPRETATION (viii) “day” means the period between any one midnight and the next (ix) “month” means a period of one month according to the Gregorian calendar commencing with any day of the month (x) “Local Currency” (LC) means the currency of the country where the Project is located and “Foreign Currency” (FC) means any other currency (xi) “Agreed Compensation” means additional sums as defined in the Particular Conditions which are payable under the Agreement (i) The headings in the Agreement shall not be used in its interpretation (ii) The singular includes the plural, the masculine includes the feminine, and vice-versa where the context requires (iii) If there is conflict between provisions of the Agreement, the last to be written chronologically shall prevail, unless otherwise specified in the Particular Conditions OBLIGATIONS OF THE CONSULTANT SCOPE OF SERVICES The Consultant shall perform Services relating to the Project The Scope of the Services is stated in Appendix A NORMAL, ADDITIONAL AND EXCEPTIONAL SERVICES (i) Normal Services are those described as such in Appendix A DUTY OF CARE AND EXERCISE (ii) Additional Services are those described as such in Appendix A or which by written agreement of the parties are otherwise additional to Normal Services (iii) Exceptional Services are those which are not Normal or additional Services but which are necessarily performed by the Consultant in accordance with Clause 28 (i) The Consultant shall exercise reasonable skill, care and diligence in the performance of his obligations under the OF AUTHORITY Agreement (ii) CLIENT'S PROPERTY Where the Services include the exercise of powers or performance of duties authorised or required by the terms of a contract between the Client and any third party, the Consultant shall: (a) act in accordance with the contract provided that the details of such powers and duties are acceptable to him where they are not described in Appendix A (b) if authorised to certify, decide or exercise discretion, so fairly between the Client and third party not as an arbitrator but as an independent professional acts by his skill and judgment (c) if so authorised vary the obligations of any third party, subject to obtaining the prior approval of the Client to any variation which can have an important effect on costs or quality or time (except in any emergency when the Consultant shall inform the Client as soon as practicable) Anything supplied by or paid for by the Client for the use of the Consultant shall be the property of the Client and where practicable shall be so marked When the Services are completed or terminated the Consultant shall furnish inventories to the Client of what has not been consumed in the performance of the Services and shall deliver it as directed by the Client Such delivery shall be regarded as an Additional Service OBLIGATIONS OF THE CLIENT INFORMATION The Client shall so as not to delay the Services and within a reasonable time give to the Consultant free of cost all information in his power to obtain which may pertain to the Services DECISIONS On all matters properly referred to him in writing by the Consultant the Client shall give his decision in writing so as not to delay the Services and within a reasonable time ASSISTANCE In the country of the Project and in respect of the Consultant, his personnel and dependants, as the case may be, the Client shall all in his power to assist in: (i) the provision of documents necessary for entry, by the designated representatives, shall be binding on the parties Non-binding Opinion 43.6 If no agreement is reached, either party may invite the Mediator to provide to both parties a non-binding opinion in writing Such opinion shall not be used in evidence in any concurrent or subsequent proceedings, without the prior written consent of both parties Costs of Mediation 43.7 The parties will bear their own costs of preparing and submitting evidence to the Mediator; if the Mediator finds that the Mediation has been initiated or conducted frivolously or vexatiously, then he shall have the power to order the party so initiating or conducting the mediation to pay the reasonable costs of the other party for preparing for and attending the mediation If these costs cannot be agreed, they will be assessed by the Mediator, whose decision shall be binding on the parties Failure of Mediation 43.8 If the parties fail to reach agreement within 28 days of the Mediator being appointed, or such other period as the parties may agree, then both parties shall be entitled to submit the dispute to arbitration under the terms of Clause 44 of this Agreement ARBITRATION 44 If the mediation fails, with the agreement of the parties, the Mediator will record those facts that the parties have agreed All other matters in dispute will be referred to an Arbitrator, who will be allowed access to the recorded and agreed facts only The Mediator's role will cease on the appointment of the Arbitrator He will not be available to appear as a witness in the arbitration, or to provide any additional evidence obtained during the mediation The arbitration will be conducted in accordance with the rules stipulated in the Particular Conditions in force at the effective date of the agreement on the basis that the parties agree to waive their rights to any form of appeal, insofar as such waiver can validly be made PARTICULAR CONDITIONS A References from Clauses in the General Conditions Definitions (i) The Project is ……………… Building- ………….-storey building (ecxcluded technical areas) with ……… basements The Project is located at ……………….Ho Chi Minh City, adjacent to …………… Client’s Property : Not applicable Assistance : Not applicable 10 Equipment and Facilities : Not applicable 13 Supply of Personel : Not applicable 17 Duration of Liability : Reckoned from : 24 months the date of completion or termination of the Services 18.1 Limit of Compensation : USD1,000,000.00 18.2 Indemnity : Not applicable 19 Insurance for liability and indemnity: The cost of such insurance or increase in insurance shall be at the expense of the Consultant 20 Insurance of Client’s Property : Not applicable 22 Commencement : date of contract signed Completion : date of practical completion By Notice of the Client : 27.1 (i) The Client may suspend all or part of the Services or terminate the Agreement by noctice of at least 56 days to the Consultant wwho shall make arrangements to stop the Services and minimise expediture immediately upon receiving such notice of the Client 31 (ii) Time for Payment : For any claim for service fee under this Agreement, the Consultatnt shall issue a service invoice, stating the accomplished work and relevant fee claimable Within days from receipt of the Consultant’s service invoice, the Client shall verify the claimed amount Based on the confirmation of the Client on the service fee claimed per such service invoice, the Consultant shall issue official VAT invoice to the Client as per the confirmed amount Payment will be made within 15 days from receipt of valid VAT invoice from the Consultant Agreed Compensation for overdue payment 1.00% per month 32 Currency of Agreement : United States Dollars Currencies of payments : Vietnam Dong (i) Unless otherwise specified in Appendix C, the Client warrants that the Consultant can transfer abroad promptly all Local and Foreign Currency amounts in connection with performance of the Services which are received by him in the Client’s country, provided always that such transfer is compliant with the regulations on tax and foreign exchange control applicable at the time of such transfer (ii) The payment in Vietnam Dong shall be based upon the exchange rate on the date the Consultant issues the invoices 33 Third Party charges on the Consultant: 34 Disputed invoices: Not applicable If any invoice or part of an invoice submitted by the Consultant is contested by the Client, the Client shall give prompt notice with reasons and shall not delay payment on the remainder of the invoice The contested invoice or part of invoice shall only be settled within 15 days after both parties have agreed on the final amount to be paid and the Client has received valid VAT invoice from the Consultant for such final amount No compensation or overdue interest shall be payable to the Consultant with respect to the disputed invoice or part of invoice 36 Language(s) of the Agreement : English and Vietnamese Ruling language Vietnam : Law to which Agreement is governed : Vietnam 37 Principal place of business Not applicable 38 Assignment and Sub-contracts : (i) The Consultant shall not, without the prior written consent of the Client, assign any right or obligations under the Agreement to any third party (ii) The Consultant shall not, without the prior written consent of the Client, initiate or terminate any sub-contract for performance of all or part of the Services (iii) If necessary, the Client shall, at its own discretion, assign wholly or partially its rights and obligations under the Agreement to a third party with a notice to the Consultant No provision herein will be interpreted as preventing the Consultant from delegating works to its managers and staff for fulfilling the Consultant’s obligations herein set forth 39 Copyright: The Consultant retains copyright of all documents prepared by him The Client shall be entitled to use them without obtaining the Consultant’s permission 41 Notices, in writing Client’s address: ………………… General Director …………………………Company ………………………… Ho Chi Minh City, Viet Nam Consultant’s address: Mr.………………………… – Managing Director …………………………………… ……………………………………… ………………………………………. 42 Publication: Unless it is expressly agreed in written by the Client, the Consultant does not have the right to publish any material related to the Services under this Agreement This provision is enforceable against the Consultant during term of the Agreement and after the termination thereof 43 Amicable Dispute Resolution: 44 Arbitration: Not applicable Should any conflict or dispute arise out of or in connection with the execution of this Agreement, the parties agree that they will first negotiate to settle the such conflict or dispute in goodwill If the parties fail to reach an agreement on settlement within 30 (thirty) days from the date of the declaration of default by the violated Party, such dispute shall be referred to the Vietnam International Arbitration Centre (“VIAC”) in Hanoi, Vietnam and shall be settled under the VIAC Rules of Arbitration by three arbitrators designated in accordance with such Rules The arbitration shall take place in Ho Chi Minh City The language of arbitration, both verbal and written, shall be bilingual English and Vietnames The arbitral decision and/or award shall be final and binding upon the related Parties B Additional Clauses: PROFESSIONAL INDEMNITY INSURANCE The Consultants shall submit to the Client the proof of professional indemnity insurance for the consulting work, i.e certified copy of insurance policy, within 10 (ten) days from the date of signing this Contract Uncertified copy of the insurance policy may be acceptable provided that the original is shown PROGRESS MEETING During the design stage, weekly progress meetings will be held in Ho Chi Minh City between the Consultant and the Client to monitor the implementation progress CHECK & ACCEPTANCEHAND OVER OF THE DESIGN WORK The Client will hold staged check and acceptance exercises of the design work according to the Decision no 17/2000/QD-BXD dated 02/8/2000 of the Ministry of Construction The Client is responsible for, within days from the full receipt of design drawings, to organise the check and acceptance and hand over of design documents The Consultant is required to prepare all necessary documents and conditions for the check and acceptance of the design work The certificate of check and acceptance of the design work will be prepared in accordance with the current regulations of the State SUPERVISION-IN-CHIEF DURING THE CONSTRUCTION PERIOD The consultant is not responsible for supervision-in-chief Where this service is provided by the consultant, it would be an addition to the contracted service which would subject to additional service fee The Fees for additional services during the Construction Stage shall be discussed and agreed post-tender stage The contracted services shall be limited to answering queries on the architectural construction documentation DIFFERENCES BETWEEN GENERAL CONDITIONS AND PARTICULAR CONDITIONS If there is any difference or discrepancy between the General Conditions and the Particular Conditions, the Particular Conditions shall prevail LANGUAGE OF AGREEMENT This agreement is made in 06 copies in English and 06 copies in Vietnamese with the same tenor and effect In the event there is any discrepancy or conflict between the Vietnamese version and English version of this agreement, the Vietnamese version of this agreement shall prevail APPENDIX A SCOPE OF SERVICES SCOPE OF SERVICES A ………….will provide full Architectural Design Services through …………… and ………… for the Concept Design, Design Development and Documentation Stages Consultancy services will thus be provided as follows : Stage A – Inception 1.1 Discuss the Client's requirements, including time scale and any financial limits, assess these and give general advice on how to proceed 1.2 The Client shall provide the project description, the brief and general requirements for the project 1.3 The Client shall provide detailed information about the site, including detailed survey indicating existing buildings on the site, boundary fences and other enclosures, and any known casements, encroachments, underground services, rights of way, rights of support and other relevant matters 1.4 The Client shall provide and update statutory planning guidelines for the site and location, including set backs, height, site coverage, plot ratio, etc 1.5 The Consultant shall make a site visit and carry out an initial site appraisal 1.6 The Consultant shall prepare outline schematic massing, form, general configuration, and site circulation diagrams, based on the Client’s requirement in general accordance with the Client’s planning approval as already received and The Consultant’s conceptual approach 1.7 Received Client’s comments on outline proposal and amend brief accordingly Stage B – Concept Design 2.1 The Consultant shall prepare concept design from the outline proposals taking into account any amendment requested by the Client Architectural Concept Design Drawings will be prepared at appropriate scale and in sufficient detail to enable the Client to agree the spatial arrangements and appearance 2.2 The Consultant shall provide outline information if requested to the Cost Management consultant to enable him to review/quantify the cost of the project 2.3 The Consultant shall provide architectural design layouts in sufficient detail to facilitate a preliminary structural design 2.4 Co-ordinate the architectural documentation as described, and also forward completed documents, duly signed by authorized professionals for any further checking submissions as required 2.5 Make such changes or modification to the drawings, as may be necessary, arising from consultations with the Client, or Client’s Project Manager or Quantity Surveyor to assist in achieving approvals 2.6 Submit drawings and documents for obtaining the formal approval of the Client before proceeding with the detailed design 2.7 Prepare all necessary prints of drawings to the Client for submission to Planning Department and other relevant Authorities for approval 2.8 Assist the Client in respect of receiving approval from the relevant Authorities Stage C – Design Development 3.1 The Consultant shall develop the Schematic Concept already presented, incorporating Client’s feedback and comments as received 3.2 Obtain the Client's approval of type of construction, materials and standard of workmanship Generally, Develop the Architectural Design and coordinate the Structure, Building Services and the work of other specialists consultants into the developed design Advise on the need for any specialist contractors, sub-contractors and suppliers 3.3 Prepare drawings to illustrate the developed design Drawings will include plans of each level, sections and elevations of all façade areas The drawings shall indicate the configuration of the building at an appropriate scale, noting in outline the proposed materials and finishes to be utilized The drawings will incorporate structural elements and building engineering areas in true scale as per the developed design for structure and building services by others 3.4 Provide sufficient information to the Quantity Surveyor to enable him to make any cost checks as required by the Client 3.5 Assist the Clients’ Project Managers or Quantity Surveyors where appropriate on the need for ancillary amenities, equipment, facilities and services for the Project 3.6 Make any necessary alterations to the specification and/or drawings completed in accordance with the instructions of the Client, if so requested by the Client Stage D – Construction Documentation 4.1 Prepare working drawing package, control drawings and material specifications in accordance with normal industry and professional standards in HoChiMinh City, all sufficient for construction tender negotiation 4.2 Issue architectural specifications as applicable and appropriate to the construction industry of Vietnam 4.3 Review shop drawings of Curtain Wall or other specialist architectural contractors as applicable to the working drawing package 4.4 Assist in the coordination of engineering design by other consultants into the architectural documents The Consultants shall not make any major deviation, alteration, additions to or omission from the approved design without the prior knowledge and written consent of the Client All instructions on variation must have the prior written approval of the Client before issuance 4.5 With respect to the scope of documentation necessary for the construction of the Project, the following should be noted: a The Consultant will provide interior design consultancy for the Main Lobby and general Lift Lobby and other public areas The Consultant services not cover interior design for tenant spaces including the Insurance Company and the Bank Entrance Lobbies , or offices b Site and Preliminary Landscape Planning layouts are included in the scope of the work including hard landscape design, ,However, selection of plants and implementation supervision are excluded c The Consultant is not responsible for the preparation of written sub or main contract conditions of tender 4.6 The Consultants shall furnish soft copies of all drawings free of charge to the Client: 4.7 Review and response to Contractor design clarification enquiries relating to drawings, specifications 4.8 Review and approval of Contractor Material Approval submissions including as assessment of both specified and alternative materials, samples and specification Stage E- Tender Documents and Award: 5.1 Prepare the working drawings and specifications as would be necessary for purpose of inviting tenders The working drawings and specifications shall be sufficient to show the scope and purpose of the works to enable tenderers to tender for and construct the works The working drawings and specifications shall comply with all regulations and requirements of Government Departments and/or Statutory Bodies 5.2 Respond to the tenderers’ and clarify queries regarding the drawings prepared by the Architect issuing reasonable clarification to the tenderers if and as required by the Client Stage F- Construction Stage: 6.1 The Consultant shall answer queries on the Documentation, as required by the Project Manager 6.2 The Consultant shall perform Authorship Supervision with site-visits and feedbacks on monthly basic B EXCLUSION OF SERVICES Project Management Tender Review Architectural Construction Detail drawing relating to other sub-contractor, such as Curtain Wall, etc., Construction Supervision Cost Management Interior Design (refer to Item A.4.5.a ) Other Consultants’ services: Structural, Mechanical, and Electrical Engineering, Site Drainage, Fire protection, Soft Landscape Design APPENDIX B PERSONNEL, EQUIPMENT, FACILITIES AND SERVICES OF OTHERS TO BE PROVIDED BY THE CLIENT PERSONNEL Not Applicable EQUIPMENT Not Applicable FACILITIES Not Applicable APPENDIX C REMUNERATION AND PAYMENT Fee Payment Schedule The consultancy fee for the services as described shall be a Lump Sum Design Fee Basic This Lump Sum shall be US Dollars, Two Hundred Thousand Only (US$200,000.00) These fee will be payable through the consultancy stages in the proportions listed in Item 2 Payment of fees will be in accordance with the following schedule : Stage A Inception US$25,000.00 Stage B Concept Design US$40,000.00 Stage C Design Development 25,000.00 Payment US$ Payment US$ Payment US$ Payment US$ 25,000.00 25,000.00 Stage D Construction Documentation 25,000.00 Payment US$25,000.00 Payment 20,000.00 Stage E Tender Procedure and Award US$25,000.00 Stage F Construction Stage US$15,000.00 Total US$250,000.00 US$ ... The Consultant shall provide architectural design layouts in sufficient detail to facilitate a preliminary structural design 2.4 Co-ordinate the architectural documentation as described, and... notice of at least 56 days to the Consultant who shall immediately make arrangements to stop the Services and minimise expenditure (ii) If the Client considers that the Consultant is without good... expenditure and subsequent re-transfer abroad of Local Currency up to the same amount such as to inhibit the Consultant in the performance of the Services or to result in financial disadvantage