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AGREEMENT CONTRACT
Of CIVIL WORKS
Between
And
Project:
Location: August 2010
With regarding to Commerce Law of The Socialist Republic of Vietnam issued on June 14, 2005 by National Assembly of The Socialist Republic of Vietnam;
With regarding to Construction Law issued on December 10, 2003 by The President of The Socialist Republic of Vietnam
This contract of Agreement is signed on date
In address:
Between
Project Owner:
Address :
Investment license : Phone :
Account No :
Bank name :
Tax code :
Representative :
Title :
(Herein referred to as Owner)
And
Address :
Phone :
Email :
Account No. :
Bank name :
Tax code :
Representative :
Title :
(Herein referred to as Contractor)
WHEREAS:
(A) The Owner shall develop its factory
(B) The Contractor is a company specializing in construction works.
(B) The Owner wishes to appoint the Contractor as its construction company to provide
the Project on the terms and conditions hereafter set forth.
Now it is hereby agreed as follows:
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Article 1: Works to be done by the Contractor.
1.1 The contractor shall have responsibility to carry out the building works for
Project :
Location :
1.2 The project shall include the following civil works:
–
–
Content of scope of works and agreement on revision/ addition/ omission of design drawings are listed in Annex 1 and Annex 3 of this contract.
(Design and construction license is notin the scope of this contract. Their content and price of those works will beagreed in another contract signed by both sides. Contract for design andconstruction license must be finalised within 2 (two) weeks after the date ofsigning this contract).
Based on the design drawings which have been agreed between bothof party and the accepted date for the basis of building works.
1.3 Applicationof standards:
The contractor shall carry out the building works for this projecton the complied basis with:
Ø Construction Law issued on Dec 10, 2003
Ø Vietnam Construction stipulation promulgated in the Decision682/BXD-CSXD dated 14-12-1996 of Minister of Ministry of Construction ofSocialist Republic of Vietnam,
Ø current Vietnam Construction Standards and other technicalrequired by the Owner and accepted by Contractor.
Article 2 – Schedule of Construction Works.
The civil works of this project shall be completed in accordanceto the schedule agreed between The Owner and The Contractor as follows:
Commencement date : within 3 days since the date of receipt ofDesign drawings approved by project owner’ representative.
Completion date :
The above schedule is calculated on detailed drawings issued and approved by Owner forconstruction.
The detail of Work in this project is to be attached in thiscontract (Annex 2 – Schedule of Works
The schedule of works will not be renewed due to reason of badweather except force majeure or delays caused by Owner or third parties.
This schedule does not cover for additional works required byOwner or caused by other parties during construction. Schedule for additionalworks will be discussed and agreed by authorised representatives nominated byboth sides in writing documents.
In case of irresistible which cause to the delay of thework for the Contractor, the time of completion will be automatically extendedin correlative with the delayed time since the force majuere which is announcedofficially by Authorities. In case of extension of construction schedule sinceforce majuere or other reasons, extended schedule must be approved by Owner bywritten documents.
Circumstances,situations are beyond the reasonable control of the Owner and/or theContractor, such as war, rebellion, flood or long-term raining, break-down of neighboringbuildings which causes to the congestion or effects directly to the project,the post-pone of customer formalities, the changes of Government/ Authorities’s policies which cause directly to theproject …will be deemed as cases of theForce Majuere.
Coordination between The Contractor andother contractors nominated by The Owner:
The Contractor has to cooperate with other contractors such asM&E contractor, machinaryinstallation contractor, etc… during construction. The Owner has to coordinateworks done by The Contractor and other contractors nominated by the Contractorsto keep good progress of works at site for all contractors participated in theproject. The Contractor will not ask theOwner to pay additional costs or expenses caused by coordination between contractorsif there is no any reasonability. In case of delay caused by Owner or othercontractors nominated by the Owner, the Contractor will notice to the Owner inwritten documents to ask for extend schedule or additional costs (if any) thenboth sides will discuss and finalise in written agreements for such notices.
Article 3 – Variation/Modification of Construction Works.
The Contractor shall not make any modification to, addition to oromission to any Construction Works in accordance to the design drawing whichhas been approved by the Owner. Anyvariation, addition or omission the works have to be in the Owner’s writtenconsent except in the following circumstances.
(i) to complywith any written requirement of the Competent Authorities; or
(ii) In case ofemergency has to settle promptly to avoid any serious break-down.
In the above cases, the Contractor shall inform the Ownerpromptly.
The Contractor shall be deemed to be in breach of this Agreementand shall not be entitled to any additional payment for carrying out any Worksarising out of such variation, additions or omissions without the Owner’sconsent.
In case, the Owner has the intention of variation, addition or omissionthe works shown in the Designs which has been agreed by both of party, theOwner has to inform in written document to the authorized representatives ofthe Contractor (General Director or nominated Project Manager) with 30 daynotice period. With such period, the Contractor will have sufficient time toprepare materials, labors and notice to subcontractors or suppliers. In case, the contractor has the intension ofvariation of works agreed in the contract and design, the Contractor has toinform in written document to the authorised persons of the Owner with 30 daynotice period.
After discussion and coming up with the unity of implementationand the additional cost (if any) in written documents, the Contractor shallperform following the instruction of the Owner about the variation, addition oromission of the above mentioned works.
In case of addition or omission for works same work title andtechnical specifications shown in the annex 3 of the contract, the Contractorwill keep same unit prices in the Contract for the quantity of works under 20%of total quantities of those works (except works relating to rebar(reinforcement) or steel/ metal products). If quantities of additional oromissional works are 20% higher than total quantities of those works shown inthe contract or works not shown in the contract, unit prices for those workswill be agreed by both sides in written appendix and approved by authorisedrepresentatives nominated by both sides.
Both sides will finalise variation, addition or omission of worksone time in each end of month and sign contract appendixes for those works. TheContractor will commence as after signing contract apendixes. The payment foradditional works or omissional works will be paid within 30 days aftercompletion of works and approved by Owner.
Article 4 – Contract value
1.1 Contract value:
The Owner hereby agrees to pay the Contractor for the constructionfee of
Vaule Added Tax (10%):
Total contract value including VAT:
(Inwriting:
Theabove price does not consist of fees for design and construction license.
The above contract price is the lump sum price computed in accordancewith the design drawings issued and details of construction feesagreed by both sides. After contract signed between both sides, the contractvalue will not change due to fluctuation in prices of materials or labor feesin the market except cases in Article 3.
In case of The Government correctrate of Value Added Tax for construction, the contract
valuedwill be revised in an appendix of Agreement Contract which will be signedbetween both of
party.
Details of construction fees are shown in the Annex 3 in theConstruction Estimation.
4.2 The payments are included in the Contractvalue as follows:
– The Fee shall be allcosts for all materials for Building Works;
– Labor fees ofthe Contractor for completion of the Works stated in Article 1;
– Administrationexpenses and Management fees of the Contractor;
– Insurancefees for the staff and labor of the Contractor work in this project;
– The valueadded tax and other taxes in which the Contractor has to pay in accordance tothe Vietnam Law stipulations. The Contractor shall not pay any taxes for theWorks performed by other Contractors who rent from the Owner.
Article 5 – Term of Payment
5.1 The Ownershall carry out the payment for the construction fees into the Contractor’saccount following the schedule of payment:
- AdvancePayment : ofcontract value. Advance payment will be paid to the Contractor within 3 daysafter signing this Contract and the Owner receives bank guarantee for theadvance payment with amount of
- 1stpart of advance payment:
2nd part of advance payment:
3rd part of advance payment: (within3 days after receiving advance payment guarantee issued by
Total advance payment:
- Total interimpayment: of finalcontract value (The detail interim payment term shown in Annex 4- Payment Term).Interim payment will be paid to the Contractor within 7 days after approveddate of invoice submitted by the Contractor.
The Contractor will submit Invoice for interim payment to Ownerand other necessary documents such as minute on partial inspection signed byauthorised representatives of both sides, quantities of main materials used inthe period of such interim payment, certificates of materials, testing reportsfor works. After checking on suitability of invoice and attached documentssubmitted by the Contractor and payment term in contract, the Owner willinform the Contractor on planned date totransfer payment.
- 1stFinal Payment after engineering inspection between the Owner and the Contractorand temporary handing over (item byintem) to the Project Owner: of Contract Value. This 1stFinal Payment will be paid to the Contractor within 7 (seven) days after thedate of minute of engineering inspection signed by both sides.
- 2ndFinal Payment after final inspection between Authorities and the Owner and theContractor and getting as- built license: of Contract Value. This 2ndFinal Payment will be paid to the Contractor within 7 (seven) days after dateof getting as built license.
If other contractors nominated by Owner will not providesufficient certicates or licenses for their works on or before 30 (thirty) daysafter completion date, therefore the Contractor is not able to submitsufficient documents to Authorities for as-built licence. In that case, theOwner will pay 3% of Contract value to the Contractor within 7 (seven) days after30 days since completion date. The remaining of 2nd final Payment(2%) will be paid to the Contractor within 7 (seven) days after gettingas-built license.
- Payment afterliability period (12 months from date of handing over): 5%of Final Contract Value (The retention will pay to ACSC within 7 (seven) days after ACSCprovides Bank Warranty bond of 12 –monthliability period.)
5.2 The paymentof additional works: refering to article 3/
5.3 The Owner shall payall the fees for the Contractor in accordance to the Contract in US Dollarcurrency (all unit prices in agreed quotation will be converted into USdollar).
Article6 – Postponement and Abandonment of the Project
6.1 In the event ofpostponement or abandon the Project, the Owner shall notify the Contractor inwriting of the postponement or abandonment of the Project at least 30 (thirty)working day prior to the date of such postponement or abandonment.
6.2 In the even thatthe Project is postponed or abandoned in whole or in part by the Owner;
(i) theContractor shall be paid for the Works performed up to the date of suchpostponement or abandonment together with any disbursement then due, and
(ii) If theContractor suffer any loss, liability (e.g. penalty payable to its
suppliers) from the preparation for any Works to be carried outfollowing to the Works performed up to the date of such postponement orabandonment, the Owner shall indemnify the Contractor against such loss,liability based on the presentation of adequate document/evidence for suchloss, liability by the Contractor.
6.3 In the event thatthe postponed or abandoned Project or any part thereof shall again proceedwithin [6 (six) ] months after the date of such postponement or abandonment,then any relevant payment made under this Article shall rank payment on accounttowards the total fee actually payable to the Contractor under this Agreement.
6.4.1 In the eventthat the Project or any part thereof is postponed for a period exceeding [6(six)] months, the Project or any part thereof shall be deemed to be permanentlyabandoned.
Article7 – Indemnity
TheContractor shall be liable for and against any damage, expense, liability,loss, claim or proceeding whatsoever:
(i) in respect ofpersonal injury to or the death of any person in the construction site of theProject which is not complied and administered the safety regulations from theOwner; or
(ii) due to injuryor damage of any kind to any real or personal property (including the propertyof the Owner) arising out of the course of or by reason of the works of theContractor, sub-contractors , employees and/or staff.
(iii) TheContractor shall provide the Owner copies of all risks insurance and workerinsurance that are purchased by Contractor after signing this contract.
Article8 – Defects Liability & Maintenance of the Contractor
8.1 The defects Liability & Maintenance Periodfor each building item shall commence from the temporary Handing-over Date andlast for different parts of the Projects as follows: 1 (One) year sincethe Handing –Over day.
Theprovisional hand-over date of the project for the Owner is deemed to be thedate in which the Contract provisionally hands – over to the Owner and theOwner will approve this date for the production assembly installation and theother technical equipments of the Owner. Both of the parties shall make theprovisional acceptance and together confirm the point of time for provisionalhanding-over for basis of defect liability warranty.
8.2 After therespective Defects Liability & Maintenance Period for part of the Projects,the parties may further agree on the maintenance of such parts.
8.3 During defectsliability period the Contractor has to remedy all defects and errors caused bythe Contractor during construction with his own expenses. The remedying worksmust be started within 3 days as after receiving written notice from Owner toauthorised representatives nominated by Contractor for defects liabilityperiod. If beyond this time limit the Contractor does not start the remedyingworks for such defects/ errors, the Owner has right to hire another contractor(third party) to execute these works and all expenses for remedying works executedby third party will be paid by the Contractor. The Contractor shall pay tothird party within 7 days after receving written notice from the Owner for suchpayments. In case, after being out of date the Contractor still does not paythese expenses the Owner shall perform the Article 11 in this Contract torequire the Contractor has to pay.
Article9 – Contractor’s General Responsibility and Obligation
9.1 The Contractorshall perform the Works which relate to construction of all elements of theProject to achieve the Completion of the Project.
9.2 During the courseof performing the Works, the Contractor shall:
(i) Authorisedrepresentative nominated by Contractor: project manager.
(ii) TheContractor shall appoint their experienced and skilled supervisors who will beresponsible for the administer of the schedule of the project, works qualityhas to be complied with the design requirements. The appointment or change ofsupervisor of the Contractor shall be informed in writing to the Owner. TheContractor shall not change his supervisors appointed for the project untilreceiving written approval from the Owner. The Owner has right to require theContractor to change a supervior of the Contractor if his/ her work does notsuitable to position.
(iii) exercise allreasonable skill, care and diligence expected of a contractor for the properdevelopment and completion of a project similar in nature, size, complexity andall respects to the Project;
(iv) provide allexpert and technical advice and skills which are normally required for theWorks;
(v) comply withthe directions and/ or instructions of the Owner and/ or its representativesand shall always protect the interest of the Owner in accordance with generallyrecognized international construction standards of design and construction;
(vi) Comply withall relevant laws, decrees, circulars, regulations, directives, orders andguidelines of the Competent Authorities.
(vii) Beforeexecuting the Works, the Contractor shall submit the construction method to getthe Owner’s approval.
(viii) Compliancewith the design approved by the Owner, and assure of the agreed schedule andquality.
(ix) If the workdone by the Contractor is not suitable with technical requirement of the Owneror quality of materials is not meeting agreed specifications/ standards, theOwner shall send written requirement to Contractor to require removal ofinqualified works or materials and change of materials. The Contractor has todo such works with his own expenses.
(x) In case of any delay of the whole Project of anypart thereof in comparison with the Schedule approved, then the Contractor shouldpay the Owner liquidated damages ( the“Liquidated Damages”) at the rate of 0.1% (point one percent ) per day over the value ofdelayed works from after of practical completion date. Liquidated Damages is limited with total of 6 % of contract value.
9.2. Licenses doneby the Contractor:
TheContractor shall execute licenses and certificates relating to constructionwith his own expenses except following licenses and certificates: design andconstruction permit, approval of Fire Police for design of M&E works,licenses relating to environmental issues, certification for completed M&Eworks and fire protection system; safety certificates for boilers and crancesand lifts.
9.3 Sitemanagement:
(i) TheContractor is responsible for managementof his own workers and enforcing discipline and safety regulation on site. TheContractor is responsible for unrighteous behaviors of his worker that violatessecurity regulations of locality. Ifthere is any accident or injury caused by the mistake of the Contractor insite, the Contractor has to notice immediately to the Owner and Authorities andthe Contractor shall deal with such accident or injury with his own expenses.In case accident or injury not caused by mistake of the Contractor, theContractor shall cooperate with other parties concerned with his best effort.
(ii) If there isany roadblock caused by the Contractor during construction, the Contractorshall prepare a temporary access to the site and keep it in safety. However theContractor has to get approval from the Owner, traffic police and in prior to do such work. TheContractor shall clean roads next perimeter fences of the site. All trucks mustbe cleaned before going out of the site.
(iii) TheContractor shall conform strictly to safety regulations in site. The Contractorshall compensate for all damages and accidents caused by his violation insafety regulations.
(iv) TheContractor shall clean working areas before inspections and handing overbuildings to the Owner. If the Owner notices to the Contractor in writing butthe Contractor does not clean working areas in adequate manners or cleaningworks is out of time limit, the Owner has right to hire a third party to docleaning works and all expenses for such works will be paid by the Contractor.
9.4 Qualityassurance:
Quality ofworks done by the Contractor shall be achieved national standards. If there isany inconformity of good practice issued by the Government which causes poorquality and affect to use of the Owner for living or production, the Ownershall impose a fine of 3% on value of work on the Contractor, and the Ownerrequires the Contractor to improve such work until conformity of standards. Allexpenses for improvement works shall be paid by the Contractor.
9.5 Responsibilityfor preservation of site
The siteshall be kept in a state of fair preservation by the Contractor untilcompletion and handing over to the Owner. If there is any delivery of materialsor goods from the Owner to the Contractor and the Contractor agrees toresponsible for such materials/ goods with written documents signed by bothsides, the Contractor shall be reponsible to presevate them. If there is anyloss or damage for such materials or goods, the Contractor shall be responsiblefor compensation.
9.6. Security: TheContractor shall have security measures for all design drawings, assembly linesand photos taken by the Contractor during factory visit in Taiwaninvited by the Owner. After completion and final inspection, all data anddrawings must be returned to the Owner. If there is any violation in securityfor these data caused by the Contractor which damage to the Owner, theContractor shall be responsible for compensation for such loss or damage.
9.7. Supply ofmaterials
(i) All theessential materials using in the construction have to be submitted the sampleand technical characteristics to the Owner and be approved before transporting and using in thesite. If materials supplied to site arenot suitable to specifications agreed in the contract, the Contractor shall beresponsible for reconstruction and supply of new materials which satisfystandards and manufacturers/brands agreed in the Contract.
(ii) In case, theContractor has intention of variation of manufacturer or brand for materials,he must notice in written document to the Owner in a time of 30 days mimimumly in prior to date of using such material forapproval. The Contractor shall not purchase such material until getting writtenapproval from Owner. If the Contractor purchases material without Owner’approval which causes damage to Owner or reconstruction of work, the Contractorshall pay all expenses caused;
9.8 As builtdrawings:
Aftercompletion, the Contractor shall deliver the Owner 2 sets of as built drawingsand electronic files for such drawings.
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Article 10-Owner’s Responsibility and Obligation
10.1 To provide full information regarding to the Owner’s requirementsfor the Project.
10.2 To consider alldocuments submitted and/or questions rose to the Owner in connection with the Projectand shall render decisions pertaining thereto as soon as practicable so as not to unreasonably delay theprogress of the Works and/or theProject. If progress of the works is affected by delaying caused by the Owner,the Owner should consider to adjust additional time for the Contractor;
10.3 To allow theContractor to access the Site for carrying out the Works;
10.4 To ensurepayments to the Contractor in accordance with the Article 5 in this Agreement.
10.5 To appointits representatives to examine the quality of the Works and to monitor theprogress of the Project, and to give any direction and/or instructions to, andto reach any agreement as to alterations/variations with the Contractor inconnection with the Project.
10.6 To render anyassistance as far as possible to the Contractor for Completion of the Project as and when necessary.
10.8 TheOwner shall appoint the other contractor or the consultant to carry out theother essential works except the works performed in this Contract. TheContractor pledge to co-operate and create condition for other Contractors/consultants appointed by the Owner to complete their works on the site which isagreed in writing about the schedule of working of the othersconsultant/contracts.
10.9 The obligation of Owner’s responsibility
(i) To supervisethe schedule of project based on the construction schedule of project.
(ii) To bring outthe decision about the concerned matters involving in the works and project;consisting of the critical ideas in writing about the variation of the designand construction which has issued and approved by the Contractor and The Ownerrespectively;
(iii) To confirm ofcompletion of the works mentioned in the Construction Schedule of the Project;
(iv) To organizethe acceptance of the quantity in parts, items in which the Contractor hascompleted to satisfy the quality requirements following the Design approved andwith representative of the Owner and Contractor;
(v) Toco-ordinate the general supervision and management about the project layoutconsisting of combination of the works of Contractor in this Contract and othercontractor/consultant appointed by the Owner;
(vi) To enforceother works in accordance with the Owner’s decisionl
(vii) In case,other contractors appointed by the Owner damage works done by the Contractor,therefore the Contractor has to pay for remedying such works, the Contractorshall send written notice to the Owner to ask for expenses of remedying worksand extension of time if such works are damaged seriously;
Article 11- Governing Law and Arbitration
11.1 This Contract shall be governed by andinterpreted in accordance with the law of Vietnam.
11.2 The partiesshall first attempt to settle all disputes arising in connection with this Agreement through amicable negotiation between the parties.
11.3 All disputes arisingout of or relating to this contract shall be finally settled by the Vietnam International Arbitration Centre at the Vietnam Chamber of Commerce andIndustry in accordance with its Arbitration Rules and location for arbitration will be Ho Chi Minh city.
Article 12-General provisions
12.1 This contractis deemed to have a validity from the last date among the following dates:
(i) The date ofsigning contract;
(ii) The date theContractor receive the full advanced payment
12.2 Amendmentsof or additions to this Agreement shall only be effective upon writtenagreement signed by the parties.
12.2 All noticesand communications made hereunder by one party to the other party shall be inwriting and in English and shall be delivered by hand, sent byregistered airmail, courier or facsimile (followed by registered letter )addressed to the other party.
12.3 All notices andcommunications hereunder shall be sent to the parties to the relevantcorrespondence details set out here below, unless such details are changed bynotice given in writing by one party to the other party:
(i) To the Owner:
Contact address :
Telephone No. :
facsimile No. :
Email :
Representative :
Title :
C/c :
(ii) To the Contractor:
Contactaddress :
Telephone No :
Facsimile No :
Email: :
Representative :
Title :
Mobile phone:
Email:
And
Title :
Email :
Mobile phone :
12.5 This Agreement is made and signed in[4 (four)] copies in English, each party shall keep [2(two)] copies.
12.6 Both of parties pledge to carry out thiscontract.
IN WITNESSWHEREOF, the parties have hereunto affixed their signatures and seals on thedate first stated.
FOR AND ON BEHALF OF FOR AND ON BEHALF OF
THE OWNER THE CONTRACTOR
Name : Name :
Jobtitle : Job title :
Annexesof Contract:
Annex 1: Minutes onrevised specifications/ scope of works.
Annex 2: Masterschedule
Annex 3: Bill ofQuantities and List of main materials used for the project and their unit prices
Annex 4: Paymentterm- Detail of interim payments
Annex 5: Architectural,structural drawings signed between Owner and contractor.
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