Công văn 1066/BXD-KTXD

Pursuant to Decree No. 17/2008/ND-CP dated February 04, 2008 of Government regulating functions, tasks, powers and organizational structure of the Ministry of Construction.

Pursuant to Decree No. 99/2007/ND-CP dated June 13, 2007 of the Government on management of building construction investment costs.

The Ministry of Construction announces contract form of building construction performance supervision consultant together with this text so that the agencies, organizations and individuals concerned may use it in the drafting, negotiation and management of contract performance in construction activities in accordance with Decree No. 99/2007/ND-CP dated June 13, 2007 of the Government.

The application of this contract form to the drafting, negotiation and management of contract performance for each particular package shall be decided by the parties involved on the quantity, order, name, and contents of the terms... on the basis of guidance on contract in construction activities under Circular No. 06/2007/TT-BXD dated July 25, 2007 of the Ministry of Construction.

MINISTRY OF CONSTRUCTION

CONTRACT FORM

BUILDING CONSTRUCTION PERFORMANCE SUPERVISON CONSULTANT

(Announced together with document No. 1066/BXD-KTXD dated June 05, 2008 of the Ministry of Construction on announcement of contract form of building construction performance supervison consultant)

 Hanoi, 2008

Socialist Republic of Vietnam

Independence - Freedom - Happiness

………….

(Place), date ….. month …. year …….

 CONTRACT OF BUILDING CONSTRUCTION PERFORMANCE SUPERVISON CONSULTANT

No.: …./(Year)/ …. (Contract symbol)

Subject: Building construction performance supervison consultant

FOR BUILDING OR PACKAGE (NAME OF BUILDING AND/OR PACKAGE) NUMBER……………..

UNDER PROJECT (PROJECT NAME) ……………….

BETWEEN

(TRANSACTION NAME OF INVESTOR)

AND

(TRANSACTION NAME OF CONSTRUCTION SUPERVISION CONSULTANT)

                                         TABLE OF CONTENTS

PART 1 –GROUNDS FOR CONTRACT SIGNING..................................................................

PART 2 –TERMS AND CONDITIONS OF CONTRACT.........................................

ARTICLE 1. CONTRACT DOCUMENTS AND ORDER OF PRIORITY......................

ARTICLE 2. DEFINITIONS AND EXPLANATION.........................................................................

ARTICLE3. SCOPE OF JOB DESCRIPTION.....................................................

ARTICLE 4. CONTRACT PRICE, ADVANCE AND PAYMENT....................................................

ARTICLE 5. CONTRACT PERFORMANCE GUARANTEE (IF ANY)........................

ARTICLE 6. MODIFICATION AND CONTRACT PRICE ADJUSTMENT........................................................

ARTICLE 7. CONTRACT PROGRESS.......................................................................

ARTICLE 8. SUPERVISION CONSULTANT’S GENERAL RESPONSIBILITIES AND OBLIGATIONS...............................................

ARTICLE 9. INVESTOR’S GENERAL RIGHTS AND OBLIGATIONS........................

ARTICLE 10. SUPERVISION CONSULTANT’S MANPOWER...................................

ARTICLE 11. TEMPORARY SUSPENSION AND TERMINATION OF CONTRACT.........................................................

ARTICLE 12. INDEMNITY AND LIMITATION OF LIABILITY.........................

ARTICLE 13. COPYRIGHT AND RIGHT TO USE DOCUMENTS ....................................................

ARTICLE 14. CONFIDENTIALITY..........................................................................

ARTICLE 15. INSURANCE ...............................................................................

ARTICLE 16. FORCE MAJEURE .....................................................................

ARTICLE 17. PENALTY AND BONUS DUE TO BREACH OF CONTRACT..............

ARTICLE 18. CLAIMS, DISPUTES AND ARBITRATION.....................................

ARTICLE 19. SETTLEMENT OF CONTRACT.................................

ARTICLE 20. GENERAL PROVISION .......................................................................................

Part 1.

GROUNDS FOR CONTRACT SIGNING

Pursuant to the Law on Construction No.16/2003/QH11 dated November 26, 2003 of the XI^th National Assembly, 4th session;

Pursuant to the Bidding Law No. 61/2005/QH11 dated November 29, 2005 by the XI^th National Assembly;

Pursuant to Decree No.58/2008/ND-CP dated May 5, 2008 of the Government guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law;

Pursuant to Decree No. 99/2007/ND-CP dated June 13, 2007 of the Government on management of building construction investment costs;

Pursuant to Circular No. 06/2007/TT-BXD dated July 25, 2007 of the Ministry of Construction guiding contracts in construction activities;

Based on the results of selection of contractor in the document No. (Decision No....).

Part 2.

TERMS AND CONDITIONS OF CONTRACT

INTRODUCTION

Today, on…date…. month …. year…. at (place) …………………………………., we consist of the following Parties:

1. Investor (abbreviated as CDT):

Transaction name ……………………

Representative (or authorized person) is: ………………    Position: ………………

Address: …………………..

Account: ……………….

Tax ID: ……………..

Tel: ………………            Fax: ……………………………

E-mail: ………………….

is one Party

2. Construction supervison consultant (Abbreviated as TVGS):

Transaction name ……………………

Representative (or authorized person) is: ………………    Position: ………………

Address: …………………..

Account: ……………….

Tax ID: ……………..

Tel: ………………            Fax: ……………………………

E-mail: ………………….

is another Party

The investor and supervision consultant are known individually as a Party and collectively as Parties

Now, therefore, the Parties have agreed as follows:

Article 1. CONTRACT DOCUMENTS AND ORDER OF PRIORITY

1.1. Contract documents are integral parts of the contract, including the grounds for contract signing, terms and conditions of this contract and the following documents:

1.1.1. Bid- winning notice or contractor appointment document;

1.1.2. Separate conditions (if any): Annex No….[ Progress of work]; Annex No…[ Contract price, advance, payment and settlement]; Annex No….[ Types of form]

1.1.3. Supervision consultant’s proposals and accompanying documents;

1.1.4. Reference conditions (Annex No. ... [Bidding documents or requirement documents of the investor]);

1.1.5. Modifications and supplementation in writing, record of contract negotiation;

1.1.6. Contract performance guarantee (if any), advance guarantee and other guarantees (if any);

1.1.7. Other documents (documents – additional Annex during the course of contract performance).

1.2. Order of priority of documents

The principles that documents constitute a contract is the unified relationship explaining mutuality for each other, but if any point is not clear or inconsistent, the parties shall discuss and reach an agreement. If the parties fail to agree upon each other, the order of priority of the document constituting a contract to handle inconsistency problem is pfovided for as follows (or agreed upon by the parties):

1.2.1. Bid- winning notice or contractor appointment document;

1.2.2. Separate conditions (if any): Annex No….[ Progress of work]; Annex No…[ Contract price, advance, payment and settlement]; Annex No….[ Types of form]

1.2.3. These terms and conditions;

1.2.4. Supervision consultant’s proposals and accompanying documents (Annex No…[The contractor’s bidding documents or proposal documents];

1.2.5. Reference conditions (Annex No. ... [The investor’s bidding documents or requirement documents]);

1.2.6. Modifications and supplementation in writing, record of contract negotiation;

1.2.7.

Contract performance guarantee (if any), advance guarantee and other guarantees (if any);

1.2.8. Other documents (documents – additional Annex during the course of contract performance).

Article 2. Definitions and explanation

The words and phrases (as defined and interpreted) shall mean as the following explanation and apply to this contract, unless the context requires a clear expression of different meaning.

2.1 "Investor" is ....... (investor’s transaction name) as stated in the introduction and those who have a legal right to succession of the investor and is not any subject authorized by that person.

2.2. “Building construction performance supervision consultant” is……(name of supervision consultant in the letter of bid approved by the investor) as stated in the introduction and legal succession of the supervision consultant and is not any subject authorized by that person.

2.3. “Project” is…….project (name of project).

2.4. “Building” are ……building (name of building) performed by design Contractor under the signed design Contract.

2.5. “Building item” is a single work stated in the contract (if any);

2.6. “Investor’s representative” is …..(person mentioned in the Contract or appointed for each stage under Article….Clause…..[Investor’s representative] and operating work on behalf of Investor.

2.7. “Supervision consultant’s representative” is….(person mentioned by the supervision consultant in the Contract or appointed by the supervision consultant under Clause….[ Supervision consultant’s representative] and operating work on behalf of supervision consultant.

2.8. "Contract" is part 1, part 2 and documents accompanying Contract ... (under provisions in Clause 1.1 [Contract documents]).

2.9. "Investor’s bidding documents or requirement documents" means all documents specified in Annex No. ... [Investor’s bidding documents or requirement documents].

2.10. “Supervision consultant’s bidding documents or proposal documents” are documents attached to letter of bid signed and submitted by the supervision consultant and included in the contract under provisions of Annex No……[ Supervision consultant’s bidding documents or proposal documents].

2.11. "Party" means the Investor or supervision consultant depending on the context.

2.12. "Day" unless otherwise specified in the contract, "day" means calendar day and month as calendar month.

2.13. “Force majeure” is defined in Article …..[ Force majeure]

2.14. "Law" means the whole system of law of the Socialist Republic of Vietnam and the relevant guiding documents.

2.15. "Written approval" is the Investor’s formal approval for any memorandum or agreement between two parties during contract performance.

2.16. "Contract annex" is the complete pages to clarify a content of the contract, known as the Contract Annex and is an integral part of the contract.

2.17. "Work" means the services performed by the supervision consultant under the provisions of Article 3 [Scope of work description].

Article 3. Scope of job description

TheInvestor agrees to hire and the supervision consultant agrees to perform the work of construction supervision of building and building item ... (name of building and building item) or package (name, a number of packages) under the project ... (project name) as follows:

1. Supervising the peformance quality of building construction:

a. Checking the conditions for commencement of construction building in accordance with the law;

b. Checking the construction contractor’s capacity conformity with the bidding documents and construction contracts, including:

+ Checking manpower, construction contractor’s building equipment on the construction site;

+ Check the construction contractor’ quality management systems;

+ Checking the license to use the machinery, equipment and supplies with safety requirements for building construction.

+ Checking the contractor’s laboratory and manufacturing facilities of documents, components and building products in service of construction.

c. Checking and monitoring the quality of supplies, documents and equipment to be installed in the building by the construction contractor and equipment supplier according to the design requirements, including:

+ Checking the manufacturer’s certificate of quality, the results of experiments of standard laboratories and result of equipment quality testing of organizations recognized by authorized state agency for documents, components, building products and equipment installed for the building before they are moved to the construction site;

+ In case of having doubt about the results of quality testing of documents and equipment installed in the building performed by the construction contractor and the equipment supplier, the supervision consultant shall report to the investor to conduct direct checking of supplies, documents and equipment to be installed in the building.

d. Checking and monitoring during the building construction, including:

+ Checking the construction contractor's methods of performance;

+ Regularly and systematically checking and monitoring the process during which the construction contractor shall deploy work at the site. The checking results must be recorded in the investor’s monitoring journal or checking records as prescribed;

+ Certifying as-built drawing;

+ Accepting the building in accordance with the law on quality management of the building (Decree No. ... / ... / ND-CP dated ….of the Government on the building quality management);

+ Gathering and checking documents for acceptance of construction, building components, construction phase, equipment and completion of each building item and completion of entire building.

+ Detecting errors and irrationalities on the design to require investor’s modification or design contractor’s modification;

+ Coordinating with the investor to check the quality of building component, building items and the building when in doubt about its quality;

+ Coordinating with the investor and parties concerned to settle problems arising in building performance.

2. Monitoring the quality of building construction for form of general contractor:

a. In case of performance of EPC contractor:

+ Performing work specified at Point a, b ​​and c, Clause 1 of this Article for the general contractor and the subcontractors;

+ Performing inspection and supervision specified at Point d, Clause 1 of this Article for general contractor;

+ Joining the general contractor to inspect and monitor the subcontractors’ construction performance.

b. In case of performance of turnkey general contractors:

+ Based on the progress of construction and time of acceptance of building completion shown by the contractor, the supervision consultant shall study and submit it to the investor for approval;

+ Before acceptance of building completion, the supervision consultant shall receive and check the legality and completeness of documents and propose the investor to conduct quality testing if deemed necessary as a basis for acceptance.

 (The contents of investor’s hiring of supervision consultant of each specific project shall be agreed upon by parties)

The supervision consultant shall guarantee to monitor the performance of building, building items, package….(name of building, building items, package) under the project …(name of project) in conformity with the building design, regulation and standard applied, ensure the high quality of building, full and correct volume, on schedule approved, safety and envirionmental hygiene and fire and explosion prevention.

The supervision consultant’s scope of work shall be shown but not limited to Annex No ... [The investor’s bidding documents or requirement documents] includes the following specific work:

a) Preparation phase of construction:

- Setting up the quality management system in accordance with the requirements of the project;

- Checking and reporting to the investor on the conditions for the building commemcement.

- Checking and reporting to the investor on the contractor’s capacity against the signed contract;

- Checking and reporting to the investor on the conformity with the project requirements and the signed contract for supplies, equipment of contractors prepared to put into use for the building.

- Checking and reporting to the investor on the conditions, measures to ensure labor safety, environmental hygiene and prevention of fire and prevention during the building construction.

b) Implementation phase of construction:

- Assessing and controlling het contractor’s processing, planning, methods of performance, measures to ensure quality, quality management systems while proposing the replacement or adjustment of measures set out by the contractor (if necessary).

- Urging contractors to apply quality management system of the project and regulations of the State;

- Checking and monitoring the contractor’s surveying systems for the building such as coordinates, altitude, control net, surveying system, ...;

- Checking the conformity of the contractor’s building equipment and personnel of against the contract signed with the investor, such as checking the validity of building equipment and machinery shown by the contractor before put into use such as they must have been checked by the competent authority (for machinery, equipment with required inspection); checking the contractor’s staffing for construction such as certificates of practice of technical workforce, technical officer and commander of the site ...

- Checking, monitoring and approving the measures to organize the performance of construction of each work shown by the contractor compared with the requirements of project and contract signed, namely: before performing critical work, the supervision consultant must require the contractor to present the measures to perform and measures to organize the performance for review and approval; If the contractor’s measures to perform and measures to organize the performance are not appropriate, the supervision consultant shall require the contractor to modify or propose other substitute measures as a basis for the contractor’s performance; monitoring the contractor’s measures to perform and measures to organize the performance compared with the approved measures.

- Checking certificates, quality of documents, components, building products, and experimental results in the standards laboratories stated in the contract or approved by the investor upon shown by the contractor before putting into use for the building, namely: Only allowing to use the documents, components and building products that guarantee the quality and comply with the requirements of the project and contract signed with the investos. The documents, components and building products put into use for the building must have clear origin and certificate of the manufacturer and tested in standard laboratories in accordance with the signed contract; Keeping regular and continuous monitoring and measures to control quality of documents, components and building products put into use for the building.

- Checking and reporting the investor on the process of sample product manufacturing and ready-made products.

- Checking certificates and quality of building equipment and technology equipment of equipment manufacturing place, the results of the quality inspection of organizations having eligibility and capability as prescribed by law shown by the contractors; accepting as requirements of design, regulations, standards and norms before allowing the installation;

- In case of necessity, the supervision consultant shall conduct the inspection of laboratories used by contractors to test the documents, building components used for the building;

- Taking part in monitoring the process of experiment, inspection of building documents, components, products and equipment in case of necessity;

- Monitoring the process of contractor’s building performance in order to comply with the design and current regulations of law;

- Checking and accepting work of building construction in accordance with requirements of design and current regulations of law;

- Urging the preparation, checking and certifying the as-built drawings as prescribed by current laws;

- Urging the preparation, checking and certifying payment and settlement dossiers under the signed contract;

- Managing, checking and gathering dossiers and documents of the project to hand over to the investor after completing all work;

- When finding that the building equipment, staffing, building documents and equipment and technological equipment are not consistent with the signed contract, the supervision consultant has the right to require the contractor to comply with the contract signed with the investor and current regulations of law; to record and require the contractor to stop all work until it complies with provisions of the contract signed. If the contractor fails to comply, the supervision consultant shall make a report to the investor for handling due to contractor’s breach of contract; to refuse to accept the installation and phases of installation and test run when they do not guarantee the requirements under the contract signed with the investor. The refusal to accept the supervision consultant’s work must be made in writing and sent to the investor and contractor clearly stating the reasons for acceptance.

- Proposing measures to handle the defects discovered during the construction and test run;

- Checking and reviewing design to promptly report to the investor on conflicts and irrationalities in design, if any.

Article 4. Contract price, advance and payment

4.1. Contract price

- The contract price is determined according to Annex No. ... [Contract price, advance and payment] with the amount of: ..... (In words: ....)

- This includes the cost to perform all the work shown in Article 3 [Scope of work description] and Article 8 [Responsibilities and obligations of supervision consultant];

- The costs incurred under Article 6 [Modification and contract price adjustment].

4.2. Contents of contract price

The contract price includes:

- Labor costs for experts, costs of supplies, documents, machinery, management costs, other costs, costs of professional liability insurance, pre-determined taxable income and value added tax, as detailed in Annex No….[Contract price, advance, payment and settlement]

- Necessary costs for the completion of dossier after meetings and reports;

- Field trip expenses, travel expenses upon participation in the process of acceptance of stages at the field and acceptance of test run and handover;

- Costs for buying reference documents for consulting work,…

4.3. Advance

No later than .... days from the effective date of the contract or receiving advance guarantee under Article 5 [contract performance guarantee] Investor shall advance ... to the supervision consultant…… of contract price with the equivalent amount of ... (VND).

In words: …..

4.4. Progress payment

The payment of contract shall comply with the progress payment as state in Annex No….[Contract price, advance, payment and settlement] with the specific provisions as follows:

4.4.1. Within…days after signing the record of acceptance of building items ...... (name of building items, the investor shall pay the supervision consultant ... of price of the signed contract;

4.4.2. Within….days after signing the record of acceptance of building items…..(name of the following building items), the investor shall continue to pay the supervision consultant…. of price of the signed contract;

4.4.3. Within….days after signing the record of acceptance of building handover to put it into use, the investor shall continue to pay the contractor….of price of the signed contract;

4.4.4. Within….days after the settlement of contract approved, the investor shall make the remaining payment of……of price of the signed contract to the supervision consultant.

4.5. Payment documents: specified in Annex No…..[Contract price, advance, payment and settlement.

ARTICLE 5. Contract performance guarantee (If any)

5.1. The supervision consultant shall submit the advance guarantee (if any) of the Bank equivalent to…of value of the advance under the form as Annex No... [Contract performance guarantee] and this guarantee must be effective until the investor recovers all advance (applicable for cases with required advance guarantee).

5.2. The supervision consultant shall submit the contract performance guarantee (if any) of the Bank equivalent to….of contract price in accordance with the form in the Annex attached to this Contract. The guarantee bank is the bank where the supervision consultant has account. The investor shall not make any payment until receiving the contractor’s valid Guarantee.

5.3. The supervision consultant shall not be returned with the guarantee amount if it refuse to perform the signed contract.

5.4. After the supervision consultant fulfill its obligations under the contract, the investor will send document to the bank to issue bank Guarantee to return the guarantee to the supervision consultant.

Article 6. Modification and contract price adjustment

6.1. The incurred costs are only included if the supervision consultant’s scope of work is increased on the investor’s requirement.

6.2. Extending work due to the Investor or the construction and installation contractors or the suppliers during the construction. The extended time is only included after... months from the date of handing over the building and building items by the progress of the project approved (or adjustment approved).

6.3. If the above cases arise or tend to arise, the supervision consultant shall notify the Investor before performing work. No costs incurred shall be paid unless approved in writing from the investor before performing work.

6.4. Costs incurred shall be agreed and paid between the Investor and the supervision consultant. The calculation of the incurred costs shall be based on the contract price in Annex No. ... and the agreement on the adjustment of the contract price when there are  changes that allow the calculation of incurred costs under the terms stipulating the payment of incurred costs.

Article 7. Contract progress

Specified in Annex No. ... [Progress of work] with the total performance time is ... days even on holidays and days off.

Article 8. Supervision consultant’s general responsibilities and obligations

8.1. The supervision consultant ensures that all work it shall perform under this contract must be consistent with the investor’s bidding documents or requirement documents specified in Annex No…and comply with the current regulations and standards and provisions on standards of the Socialist Republic of Vietnam;

8.2. The supervision consultant must ensure the monitoring of building construction, building items, package…(name of building, building items, package) in order to finish the construction on schedule, with proper design and quality and safety assurance;

8.3. The supervision consultant must prepare the construction monitoring outline to submit it to the investor for approval before the supervision.

8.4. The supervision consultant must perform and take responsibility for its work. The work done by the supervision consultant including the qualified professionals as prescribed by law to meet requirements of the project.

8.5. The supervision consultant shall professionally perform the work mentioned in this contract with appropriate skills, prudence, diligence and adaption to the investor’s requirements to comple the building, building items and package. The supervision consultant shall inform fully and in a timely manner the investor of all information relating to the monitoring work under this contract.

8.6. The supervision consultant shall regularly manage, monitor, urge the construction contractors and the equipment supplier to ensure the set progress, the quality and safety of the building and building items.

8.7. The supervision consultant shall arrange and allocate its necessary manpower and capacity as in the list approved by the investor in the Annex No….[Supervision consultant’s manpower] of this contract to serve its work.

8.8. The supervision consultant must commit that, upon request of the investor, it shall appoint its representative having jurisdiction and capacity to solve the problems regarding the work at any time determined by the Investor (including holidays) until the completion and handover of the building.

8.9. The supervision consultant shall comply with the investor’s direction and guidance, except for the instructions or requirements in contradiction with law or impossibly implemented.

8.10. The supervision consultant shall provide dossiers and documents for meetings, reports, inspection… with a number as required by the investor.

8.11. The supervision consultant shall take responsibility before the investor and law for all activities done by its manpower.

8.12. The supervision consultant must buy professional liability insurance as prescribed by law;

8.13. The supervision consultant must protect the investor’s benefits and the legitimate interests in the process of performaing its work;

8.14. The supervision consultant must arrange means of transportation, accommodation as working far from its head office;

8.15. The supervision consultant shall take full responsibility before the Investor for the transaction relationship, work performance, payment and settlement under the contract with the investor.

8.16. Making compensation for damage caused by its fault during work performance;

8.17. The supervision consultant shall appoint qualified person with the investor to prove and protect the accuracy and completeness of the documents relating to quantity and quality of the building before the agencies concerned during the process of work performance under this contract.

8.18. The supervision consultant shall manage, preserve and use effectively and with proper purpose all documents, equipment or any assets equipped by the investor and shall return them to the investor upon the completion of obligations under the contract in good operating conditions;

8.19. The supervision consultant shall perform all its obligations as prescribed by law for its business operation such as business registration, practice registration, fulfillment all tax obligations;

8.20. The supervision consultant shall secure all documents and information relating to the project;

8.21. The supervision consultant shall respond in writing to the investor’s requirements or proposals within….days after receiving those requirements or proposals.

Article 9. Investor’s general rights and obligations

9.1. Investors shall inform the decision on duties and powers of construction supervisor to the construction contractor and design contractor for performance coordination.

9.2. Upon detecting breach of quality of building from the contruction contractor, that contractor must be required to stop the construction and apply remedial measures.

9.3. The investor shall provide the supervision consultant with information and documents relating to the project within the earliest time at the supervision consultant’s proposal.

9.4. The investor shall provide the supervision consultant witn one (01) copy of all documents relating to design and contract signed with contract signed with other contractors;

9.5. Owner shall cooperate with the supervision consultant and create conditions to the fullest extent for the supervision consultant during contract performance;

9.6. Payment

The investor shall pay the entire contract price to the supervision consultant in accordance with the agreement in this contract.

9.7. Information

The investor shall respond in writing to the supervision consultant’s proposals or requirements within…working days.

9.8. Investor’s manpower

The investor shall appoint individuals who have the capacity and expertise in accordance with each job to work with the supervision consultant. Specifically in Annex No. ... [Investor’s manpower]

9.9. The investor shall discuss and reach an agreement before making a decision on significant issues relating to the supervision consultant’s scope of work;

9.10. The investor shall provide written certification for the completion of obligations under this contract for the supervision consultant. However, all of the approval or provision of document to the investor shall not reduce the supervision consultant’s responsibility during the process of contract performance.

Article 10. Supervision consultant’s manpower

10.1. The supervision consultant must appoint qualified individuals to be its representative and operate work on behalf of the supervision consultant.

10.2. The supervision consultant’s manpower must have appropriate certificate, qualification, skills and experience, in proportion to career and their work as specified in Annex No ... [Supervision consultant’s manpower];

10.3. The supervision consultant’s main manpower has to perform assigned work within the time required to achieve the project's progress. The supervision consultant must not change any of its main Manpower without the prior consent of the Investor;

10.4. The investors may require the supervision consultant to substitute any person if he/she is considered to be bad at management or have insufficient capacity and prudence in work performance or is absent from work for over…..days without any reason and investor’s consent. Then, the supervision consultant shall appoint another qualified individual for substitution within ….days upon receiving the investor’s requirements. The supervision consultant shall bear cost for this substitution and in this case it must not delay its work.

10.5. Before changing personnel, the supervision consultant must send the investor a written proposal before ... days for consideration and approval;

10.6. The supervision consultant’s personnel shall be entitled to the benefits in accordance with provision of Vietnam Labor Code and the costs for these benefits shall be paid by the supervision consultant.

10.7. The supervision consultant’s personnel must be fluent in the language specified in contract.

Article 11. Temporary suspension and termination of contract

11.1. Temporary suspension and termination of contract by the investor:

11.1.1. Temporary suspension of contract by investor:

If the supervision consultant does not perform its obligations under the Contract, the investor may issue a notice of suspension of the supervision consultant’s work and requires the supervision consultant to apply remedial measures in a reasonable period of time.

11.1.2. Termination of contract by investor:

The investor shall have the right to terminate contract if the supervision consultant:

(a) Fails to comply with the Article 5 [Contract performance guarantee]

(b) Leaves work unfinished or clearly expressing intention not to continue performing its obligations under the Contract,

(c) Has no plausible reasons without continuing the performance of work specified in Article 7 [Contract progress]

(d) Assigns contract without the required agreement;

(e) Goes bankrupt or becomes insolvent, closed with assets controlled and has to negotiate with creditor or continue the business under the supervision of asset manager, authorized person or the manager for the benefit of creditor or takes any action or event occurs (according to the applicable laws) having similar effects to these activities or events, or

If being in one of these cases, the investor may, by notice to the supervision consultant before ... days of contract termination. However, in case (e), the investor may give a notice to terminate the contract immediately.

The investor’s selection to make a decision on terminating the Contract shall not affect the investor’s other rights under the Contract.

Upon termination of the contract, the investor may continue to complete the building and / or arrange for other units to do it. The investor and these units may then use any of the supervision consultant’s documents or done by supervision consultant’s representative under the contract.

11.1.3. Investor’s right to terminate contract

The investor has the right to terminate contract at any convenient time by giving a notice to the supervision consultant of the termination. This termination shall be effective after…days after the supervision consultant receives the investor’s notice. The investor must not terminate the contract under this Clause to perform work or arrange for another supervision consultant to do it.

11.2. Suspension and termination of contract by the supervision consultant:

11.2.1. Right to suspend work of the supervision consultant:

If the investor does not comply with Article 4[Contract price, advance and payment], the supervision consultant may, after giving notice to the investor no later than….days, suspend the work (or reduce rate of work) until it receives the advance or payment under the terms and conditions of the contract, depending on the circumstances and as described in the notice.

The supervision consultant’s acts do not affect its rights for the financial costs for the delayed payments and for termination of contract under Point 11.2.2 [Contract termination by the supervision consultant].

If the supervision consultant receives documents or payment (as stated in the corresponding clause in the above notice) before announcing the termination of contract, the supervision consultant has to continue its work as usual again as soon as it may.

If the supervision consultant undergoes delays and/or incurred costs that result from suspension of work (or reduction of rate of work) under this Clause, the supervision consultant has to inform the investor and has the right:

(a) To extend time to compensate for such delay, if completion is or shall be delayed and

(b) To make payment of those costs plus rational profits included in the contract price.

After receiving this notice, the investor shall agree or decide upon these issues.

11.2.2. Termination of contract by the supervision consultant

The supervision consultant may terminate contract but must give a written notice to the investor at least …..days in advance in the cases specified as follows:

(a) The investor shall not make any payment due to the supervision consultant under this contract and not subject to disputes under Article 4[Contract price, advance and payment] within…..days after receiving the supervision consultant’s written notice of the overdue payments;

(b) Investor basically has not performed its obligations under the Contract,

(c) The supervision consultant has not performed an important part of the work in a period of time of not less than….days.

(d) The investor who goes bankrupt or becomes insolvent, closed with assets controlled has to negotiate or continues doing business under the operation of the authorized person or representative for the creditor’s rights or if any act or event occurring (under current Laws) has a similar effect to that act or event.

In any event or circumstance described above, the supervision consultant may, by notice ... days in advance to the investor for termination of contract. However, in the case of part (d), the supervision consultant may give notice to terminate the contract immediately.

The supervision consultant’s to terminate the Contract shall not affect its other rights under the contract.

11.3. Payment upon termination of contract.

11.3.1. If there is one case of termination of contract, a Party may notify the other Party of the termination of the contract... days in advance.

11.3.2. The supervision consultant has to transfer the documents they have made ​​at the time of termination of the contract to the investor.

11.3.3. After terminating contract, the investor may continue to perform work or arrange for other units to perform it. The investor and these units then may use any of the supervision consultant’s documents they or the superior consultant’s representative has performed.

11.3.4. As soon as possible after giving a notice to terminate the contract and no later than ... days later, the investor and the supervision consultant shall discuss and determine the value of work and documents that the supervision consultant has performed ​​under the contract (contract value at the time of termination). Within ... days after determining the contract value at the time of termination, the investor shall make full payment of this amount to the supervision consultant.

Article 12. Indemnity and limitation of liability

12.1. The supervision consultant shall indemnify with the entire actual remedial costs and bear all damage for the investor and investor’s staff against complaints, breakdown, loss and other costs (including legal charges and fees) related to:

12.1.1. Damage to any property due to:

a) The supervision consultant’s fault;

b) Being attributable to a lack of responsibility, purposefulness or breach of the contract by the supervision consultant, its staff or any person it hires directly or indirectly.

12.2. The supervision consultant’s responsibility for compensation as specified in Article 12.1 above defined in Section ... Article ... Chapter .... Decree No..... of the Government on Mangement of building construction quality.

Article 13. Copyright and right to use documents

13.1. The supervision consultant shall retain all copyright of all reporting documents and other documents made ​​by the supervision consultant’s staff. The investor has the right to use these documents and duplicate them for work without asking for permission from the supervision consultant.

13.2. The supervision consultant must undertake that the reporting documents and other documents it has made and provided for the investor do not violate the copyright or intellectual property right of any individual or another third Party.

13.3. The investor shall not take responsibility or bear consequence for any claim that any reporting material or other documents under this contract has violated the copyright or intellectual property right of an individual or another third Party .

Article 14. Confidentiality

Except for the tasks required by the investor, the supervision consultant is not permitted to disclose its work or any information related to the project, building, building items, package it perform to any third Party without the investor’s prior written consent.

Article 15. Insurance

To avoid the risk of professional liability, TVGS to purchase professional liability insurance as prescribed by law.

Article 16. Force majeure

16.1. Definition of force majeure

"Force Majeure" is the event happening objectively and beyond the parties' control, such as earthquake, hurricane, floods, whirlwind, tsunamis, landslide, fire, war, or at risk war ... and other unexpected disasters or requirements of competent state agencies of Vietnam in accordance with regulations of law.

16.2. Notice of force majeure

If either Party can not perform a part or all of its responsibility and work due to force majeure or affected by another Party under the contract, then within ...days after the occurrence of incident, the affected Party shall notify the other Party in writing of the full details of the force majeure.

The Party, when having made a notice, must be exempted from performing the work under its obligations during the force majeure which has hindered its performance..

Upon the occurrence of force majeure, no obligation of payment of any Party to the other Party shall be made under the contract.

Either Party must send notice to the other Party when it is no longer affected by the force majeure.

16.3. Responsibility of parties in case of force majeure.

That either Party does not fulfill its obligations due to force majeure event shall not be the grounds for the other Party to terminate the contract.

In the event of force majeure, the time to perform the contract performance shall be extended by the duration of the force majeure event during which the affected Party can not perform its obligations under the contract. This incident shall have to be settled as soon as possible with the efforts of both Parties.

16.4. Termination of contract with option and payment

If the force majeure occurs but all attempts by a Party or the Parties do not produce results and are forced to terminate their work at any time, the Party notified of the force majeure shall send a written notice of termination to the other party and the termination shall be effective within ... days after the other party receives the notice of termination of contract.

After termination of contract under this Clause, the supervision consultant shall be paid with:

16.4.1. The payments for the finished products which have been certified by the investor.

16.4.2. The costs of moving the supervision consultant’s machinery back to its country if it has proposed with the certification of the Vietnamese customs agencies (for contracts with participation of foreign Party).

16.4.3. The costs of return fare for the supervision consultant’s staff working in Vietnam by the actual registration have been approved by the investor (for contracts with participation of foreign Party).

16.5. Obligation to comply with the law

Notwithstanding other provisions of this Article, if an event or circumstance beyond the control of the parties (including, but not limited to force majeure) occurs and makes either Party fail or not comply with statutory obligations under their contract or the law governing the contract and the Parties have the right not to continue performing the contract. On the basis of notice from one Party to the other party of the incident or this case, then the Parties shall terminate obligations to continue performing their work, without detriment to the rights of any Party.

Article 17. Penalty and bonus due to breach of contract

17.1. Bonus: If the supervision consultant has proposed to perform the work earlier than the schedule period approved, then every….day(s), the investor shall give bonus payment of….to the supervision consultant but the maximum bonus rate shall not exceed... (12%) of the benefit of contract value.

17.2. Penalty

17.3. For the supervision consultant: If the slow progress of…day(s), a penalty of….shall be imposed  due to the supervision consultant’s fault but the total penalty shall not exceed …. (12%) of the breach part of contract value.

17.4. For Investor: If failing to provide documents in a timely manner and make payment according to the determined schedule, the penalty shall be imposed in the form above.

Article 18. Claims, disputes and arbitration

If there are disputes arising between the parties relating to this contract or any issue, the parties shall immediately negotiate to settle the problem in friendly manner. If negotiations fail, within ... days after the date of dispute, the parties shall submit the case to the People's Court or Arbitration as prescribed by law. The decision of the People's Court or Arbitration is a final and binding one to the parties.

Article 19. Settlement of contract

19.1. Settlement of contract

Within ..... days after receiving the investor’s written certification that the supervision consultant has completed all its obligations under the contract. The supervision consultant shall present to the investor ... draft settlement of contract with the detailed documents under the form that investor has approved:

a) Value of all work done in conformity with the contract and

b) Other amount that the supervision consultant deems due under contract or other agreements.

If the investor does not agree or assumes that the supervision consultant has not provided sufficient grounds to confirm a certain part of the draft settlement of contract, the supervision consultant shall provide more information upon the investor’s requirement and shall modify the draft in the agreement of both parties. The supervision consultant shall prepare and submit the settlement of contract as both parties have agreed to the investor.

However, if after discussion between the Parties and any modification in the draft settlement of contract that both parties have agreed upon, the investor shall make payment of the value of this part to the supervision consultant.

19.2. Termination the investor’s responsibility

After the settlement of contract is signed by both Parties, the investor shall not take any responsibility towards the supervision consultant for any issue relating to the contract, unless the supervision consultant specifically states:

a) In the settlement of contract, and

b) Unless the issues and work arising after signing the record to certify the completion of the contractual obligations of the supervision consultant in the settlement of contract specified in Clause 19.1 [Settlement of contract].

Article 20. General provision

20.1. Both Parties have pledged to comply with what has been specified in this contract.

20.2. This contract includes…..pages and…..Annex (es) and made into….copy (ies) in Vietnamese language. The investor and the supervision consultant shall keep…Vietnamese copy. In case of using two or more languages, the number of contract copy by the other languages shall be determined.

20.3. This contract takes effect on …………………………..