ICTAD/CONSULTIOI
Institute for Construction Training and Development (ICTAD)
FORM OF AGREEMENT STANDARD CONDITIONS OF ENGAGEMENT PARTS I&II -
First Revision August 2002 -
MINISTRY OF HOUSING AND PLANTATION INFRASTRUCTURE
INTRODUCTION
The Form of Agreement and the Standard Conditions of Engagement for Consultancy Services in this publication that has been developed d eveloped to cultivate a common format and common conditions for the engagement of the various disciplines of Consultants in the Construction Industry. This publication therefore simplifies the understanding for both the Client and the consultant in respect of the conditions that are applicable in general, and more particularly bringing about uniformity. Part I of the Publication deals with the General Conditions on Engagement categorized as follows; 1.
General Provisions
2.
Commencement, Completion, Alteration and Termination of the Agreement
3.
The Rights and Duties of the Consultant
4.
Liability of the Consultant
5.
Obligations of the Client
6.
Settlement of Disputes
7.
Personnel
8.
Remuneration of the Consultant
9.
Payments to the Consultant,
Part II of the publication elaborates specific identified clauses which should be addressed by the client and on a project to project basis.
Three Appendices are also included as standard formats to define the Scope of Services, equipment, counterpart personnel, expert personnel, fees etc to be provided.
CONTENTS Page No. INTRODUCTION i CONTENTS ii
FORM OF AGREEMENT BETWEEN CLIENT AND CONSULTANT FO FOR SE SERVICES
1
OF CONSTRUCTION WORKS STANDARD CONDITIONS OF ENGAGEMENT - PART I - GENERAL CONDITIONS
3
1.0
3
General Provisions
2.0 Commencement, Completion, Alteration and Termination of the Agreement
4
3.0 The Rights and Duties of the Consultant
7
4.0 Liability of the Consultant
10
5.0 Ob O bligations of the Client
11
6.0
13
Se Settlement of Disputes
7.0 Personnel
14
8.0 Remuneration of the Consultant
14
9.0 Payments to the Consultant
15
STANDARD CONDITIONS OF ENGAGEMENT - PART II- CONDITIONS OF PARTICULAR APPLICATION
17
Scope of Services for the Consultancy - Appendix A
21
Assigned Specialists, Personnel, Equipment and Facilities to be provided 23 by the Client
Appendix B Schedule of Fees Appendix C -
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25 II
FORM OF AGREEMENT BETWEEN CLIENT AND CONSULTANT FOR SERVICES OF CONSTRUCTION WORKS d Ma r ( þ ) day of þ ( þ ) ( þ year) This Agreement made the þÿ2n
between of
(hereinafter called “the Client”) of one part and of (hereinafter called “the Consultant”) of the other part.
Whereas the Client desires that certain services should be performed by the Consultant, namely
and has accepted a proposal by the Consultant for the performance of such services.
Now this Agreement witnessth as follows: 1. In this Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of the Client / Consultant Agreement hereinafter referred to. 2. The following documents shall be deemed to form and be read and construed as part of this Agreement, and the priority of the documents shall be: a)
The Letter of Acceptance;
b)
The Conditions of the Client / Consultant Agreement (Part I Standard Conditions and Part II— Conditions of Particular Application);
c)
Accepted Technical and Financial Proposals;
d)
The Appendices, namely:
—
1
Appendix A Appendix B
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Appendix C
-
-
Scope of Services Personnel, Equipment, Facilities and Services of others to be provided by the Client Remuneration and Payment
3.
In consideration of the payments to be made by the Client to the Consultant as hereinafter mentioned the Consultant hereby agrees with the Client to perform the Services in conformity with the provisions of the Agreement.
4.
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 hereto have caused this Agreement to be executed in on the day, month and year first before written in accordance with laws of the Democratic Socialist Republic of Sri Lanka. Binding signature (s)
Binding signature (s)
of the Client
of the Consultant I 2
Common seal
Common seal
In the presence of
In the presence of
Name
Name
Signature
Signature
Address
Address
2
STANDARD CONDITIONS OF ENGAGEMENT PART I GENERAL CONDITIONS
1.0 1.1
GENERAL PROVISIONS
SCOPE OF SERVICES The services to be performed by the Consultant under this Agreement (hereinafter called ‘the Services’) relating to the works to be constructed (hereinafter called ‘the Works’) are described in the Scope of Services set forth in Appendix A.
1.2
RELATIONSHIP BETWEEN THE PARTIES Nothing contained herein shall be construed as establishing or creating a relationship of master and servant or principal and agent.
1.3
LANGUAGE/S AND LAW a)The language or languages in which contract documents shall be drawn up shall be as stated in Part II of these Conditions of Engagement. b)The law to which the Client and Consultant is to be subject is that of the Democratic Socialist Republic of Sri Lanka as in effect from time to time.
1.4 1.5
CHANGES IN LEGISLATION If subsequent to the date of this Agreement, changes to any National or State Statute, Ordinance, Decree or other Law or any regulation or by-law of any local or other duly constituted authority, or the introduction of an y such State Statute, Ordinance, Decree, Law, regulation or by-law which causes additional or decreased cost to the Consultant in the performance of his Services, such additional or reduced cost shall be paid by or credited to the Client and the agreed remuneration adjusted accordingly.
1.5
DEFINITIONS Where the context so requires words importing the singular also include the plural and the masculine includes the feminine and vice-versa and the references to natural persons will include legal persons. The word ‘days’ denotes calendar days.
1.6
HEADINGS The headings in these Standard Conditions of Engagement (Parts I and II) shall not be deemed to be part thereof or be taken into consideration in the interpretation or construction thereof or of the Agreement.
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1.7
NOTICES 1.7.1 Serving Notices All notices under this Agreement shall be given in writing and shall be deemed to have been given if delivered at the specific designation of the parties as set forth in Part II of these Conditions by on e of the following means; -
personal delivery to the designated representative of each of the Parties;
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by telegram (to be confirmed);
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by registered post;
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by facsimile transmission (to be confirmed);
1.7.2 Change of Address Either party may change a nominated address in Part II of these Conditions to another address by prior written notice to the other party. 2.0
COMMENCEMENT, COMPLETION, ALTERATION AND TERMINATION OF THE AGREEMENT 2.1
AGREEMENT FOR EFFECTIVENESS
The Agreement is effective form the date of receipt by the Consultant of the Client’s Letter of Acceptance of the Consultant’s Proposal or of the latest signature necessary to complete the Formal Agreement, if any, whichever is later. 2.2
COMMENCEMENT DATE The Consultant shall commence the Services within the period stated in Part II of these Conditions.
2.3
COMPLETION DATE The services shall be provided in accordance with the programme given in Clause 2.3.1 of Part II and shall be completed within the period indicated therein or as alternatively agreed in writing between bo th Parties.
2.4
ALTERATIONS
Should circumstances arise which call for modifications of the Agreement these may be made by mutual consent given in writing. 4
2.5
ASSIGNMENT The Consultant shall not, without the written consent of the Client, assign to any person the benefits, other than the assignment of any monies due or to become due under this Agreement. The Consultant shall not, without the written consent of the Client in any way assign or transfer the obligations of this Agreement of any part thereof. DEATH OF THE CLIENT (WHERE APPLICABLE)
2.6
The Agreement shall not be dissolved by the death or demise of the Client. His rights and obligations shall pass to his successors. 2.7 1)
PARTNERSHIPS Addition of Partner(s) Should the Consultant be a partnership and at any time take an additional partner or partners he or they shall thence be deemed to be included in the expression “Consultant”.
ii)
Withdrawal and / or Death of Partner (s) Should the Consultant be a partnership, in the event of death of a partner or partners the successor or successors and the remaining partner or partners will be severely and jointly liable for the service agreement. In the event of withdrawal of a partner or partners or dissolution of a partnership all partners of the original partnership are severely and jointly liable for the service agreement. 2.8
SINGLE OR SOLE PROPRIETORSHIP
Should the Consultant, being an individual, die or be prevented by illness or any circumstances beyond his control from performing the obligations stipulated or implied by this Agreement or from having it performed entirely, the Agreement terminates without prejudice to the accrued rights of either party against the other. The Client shall in that case pay the Consultant or his heirs, executors, administrators, successors and permitted assignees against surrender of the documents necessary for the continuation of the work in so far as they are available, such part of the remuneration as corresponds to the state of the services under this Agreement, including any reimbursable costs and those termination costs (if any) ensuing for the Consultant or his heirs, executors, administrators, successors and permitted assignees from contracts already entered into in respect of the Agreement. 2.9
SUB CONTRACTS Any sub-contract or modification or termination thereof relating to the performance of the Services by the Consultant shall be made only with the advance written agreement of the Client. 5 -
2.10
POSTPONEMENT AND TERMINATION 2.10.1 By Notice of the Client
The Client may by written notice to the Consultant at any time give prior notice of his intention to abandon the services, in whole or in part, or terminate the services under this Agreement. The effective date of such termination of this Agreement shall not be less than fourteen (14) days after receipt of such notice, or such other shorter or longer period as may be agreed between the parties. Upon receipt of such notice the Consultant shall take immediate steps to bring the Services to a close and to reduce expenditure to a minimum. 2.10.2 Force Majeure The Consultant shall promptly notify the Client in writing, of any situation or event arising from circumstances beyond his control and which he could not reasonably foresee which makes it impossible for the Consultant to carry out in whole or in part his obligations under this Agreement. Upon the occurrence of such a situation or event the Services shall be deemed to be postponed for a period of time equal to that caused by the Force Majeure and a reasonable period not exceeding one (1) month to re-mobilize for the continuation of the Services. Neither party shall be considered in default in the performance of his obligations howsoever as the result of the Force Majeure which, as implied herein, shall mean acts of God, War(declared or undeclared) riots, civil commotions, revolutions, hostilities, strikes, epidemics, accidents, fires, floods, earthquakes, explosions, blockades, nuclear hazards, extreme weather conditions and any force not within the control of the parties which renders impossible the fulfillment of this Agreement. 2.10.3 Default by the Client The Consultant may by written notice to the Client terminate the Services under this Agreement: (i)
if he has not received payment of that part of any invoice which is not contested within sixty (60) days of submission thereof~
(ii) if the Services have been postponed as provided for in Clause 2.10.2 and the period of postponement has exceeded six (6) months. 2.10.4 Entitlement of Consultant upon Postponement or Termination Upon postponement of the Service or termination services under this Agreement under Clauses 2.10.1, 2.10.2 or 2.10.3 and subject to the obligation of the Consultant to reduce expenditure to a minimum as
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stated in Clause 2.10.1 the Consultant shall be entitled to receive the remuneration due up to the effective date of postponement or termination and reimbursement in full for such of the costs specified in Appendix C as shall have been incurred prior to the effective date of such postponement or termination and for all costs incidental to the orderly termination of the Services, including return travel, if any of the Consultant’s personnel and their dependents and transportation costs for their effects. Compensation to the Consultant in respect of postponement or termination shall be agreed between the Client and the Consultant or failing agreement, shall be referred to arbitration in accordance with clause 6 of the Agreement. 2.10.5 by the Consultant
Default
The Client shall notify the Consultant, in writing, it he considers that the Consultant is not discharging his obligations under this agreement, stating the reasons therefor. In the event that the Consultant does not reply to such notice within fifteen (15) days the Client may deem the services under this Agreement terminated. In this event the Consultant shall be entitled to receive the remuneration due for Services rendered up to the date of notification of default and reimbursement in full for such of the costs specified in Appendix C as shall have been properly incurred prior to the date of notification of default, subject to any monies dUe to the client from the Consultant in the execution of this Agreement. 2.10.6 Claims for Default Any claim for damages arising out of default and termination shall be agreed between the Client and the Consultant or , failing agreement, shall be referred to arbitration in accordance with clause 6 of this Agreement. 2.10.7 Rights and Liabilities of Parties Termination of this Agreement, for whatever reason, shall not prejudice or affect the accrued rights or claims and liabilities of either party to this Agreement.
3.0
THE RIGHTS AND DUTIES OF THE CONSULTANT
3.1
SKILL CARE AND DILIGENCE
The Consultant shall exercise all reasonable skill, care and diligence in the performance of the Services under the Agreement and shall carry out all his responsibilities in accordance with recognized professional standards.
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3.2
IMPARTIAL ADVISER
The Consultant shall in all professional matters act as an impartial adviser to the Client and, in so far as any of his duties are discretionary, act fairly as between the Client and third parties. 3.3
INDIRECT PAYMENTS
The remuneration of the Consultant charged to the Client according to Appendix C shall constitute his only remuneration in connection with this Agreement and neither he nor his personnel shall accept any trade commission, discount, allowance or indirect payment or other consideration in connection with or in relation to this Agreement or to the discharge of his obligations thereunder. 3.4
ROYALTIES The Consultant shall not have the benefit, whether directly or indirectly, of any royalty on or of any gratuity or commission in respect of any patented or protected article or process used on or for the purposes of this Agreement unless it is mutually agreed in writing that he may.
3.5
PROVISION OF EXPERT TECHNICAL ADVICE AND SKILL The Consultant will provide all the expert technical advice and skills which are normally required for the class of Services for which he is engaged. Where specialist technical advice or assistance is required, beyond that committed under the Scope of Services in Appendix A, the Consultant may with the prior written agreement o f the client arrange for the provision of such Services. The Client shall pay for all such Services. However, the Consultant shall retain full and unseverable responsibility for all the Services which he is committed to render under this Agreement unless it is agreed otherwise.
3.6
SUPERVISION OR INSPECTION OF WORK
The Consultant shall give such supervision or inspection, as agreed of the works under construction as may be necessary to ensure that the works are being executed in accordance with the contract, the specifications, and general professional practice. 3.7
ALTERATIONS TO DESIGN AND VARIATION INSTRUCTIONS The Consultant when in charge of the supervision of works under the construction contract, shall have authority to make minor alterations to design as may be necessary or expedient, but he shall obtain the prior approval of the Client for any modification of the design and costs of the said works and for any instruction to a Contractor which constitutes a major variation, omission or addition to the latter’s contract as stated in Part H of these Conditions. In the event of any emergency,
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however, which in the opinion of the Consultant requires immediate action in the Client’s interest the Consultant shall have authority to issue such orders as required on behalf of and at the expense of the Client. The Consultant must inform the Client immediately of any orders issued without prior consent which will result in additional cost to the Client and follow up such advice as soon as possible with an estimate of the probable cost. 3.8 CERTIFICATE OF COMPLETION
When the Consultant referred to in clause 3.7 considers that the works or an integral part thereof has been substantially completed, which the Consultant deems capable of being accepted, the Consultant shall give appropriate prior written notice to the Client that such works or integral part thereof is ready for inspection and for such final tests as may be specified. The Consultant shall make such inspection and supervise any such tests. Upon successful completion of such tests the Consultant shall issue a Certificate of Completion in accordance with the contract between the Client and his Contractor. 3.9 ISSUE OF CERTIFICATES AND PAYMENTS TO CONTRACTORS AND SUPPLIERS
The Consultant shall not be the medium of payments made on behalf of the Client to Contractors and / or suppliers unless specifically so requested by the Client. He will, however, issue certificates for such payments. 3.10
COPYRIGHT The copyright of all design documents prepared by the Consultant in connection with the Agreement rests with the Consultant. The Client shall not be entitled either directly or indirectly to make use of these documents for the carrying out of the Services other than under the supervision of the Consultant andlor of any additional or similar services without prior approval of the Consultant which shall not be unreasonably withheld. Notwithstanding the above, in the event that the Consultant is in default under this contract as provided in Clause 2.10.5 the Client shall not be limited nor require prior approval of the Consultant in using or providing such documents to other persons to complete the performance of the Services, provided payments for such works have been made.
3.11 OWNERSHIP OF EQUIPMENT AND MATERIALS Equipment and materials furnished to the Consultant by the Client or purchased by the Consultant with funds wholly supplied or reimbursed by the Client shall be the property of the Client and shall be so marked. Upon completion or termination of the Services the Consultant shall furnish to the Client inventories of the equipment and materials referred to above as it then remains and dispose of same as directed by the Client. 9
3.12 PUBLICATION OF ARTICLES The Consultant shall have the right, subject to the Client’s approval, which shall not be unreasonably withheld, to publish descriptive articles, with or without illustrations, with respect to the Services either on his own accou nt or in conjunction with other parties concerned.
4.0
LIABILITY OF THE CONSULTANT
4.1
INDEMNIFICATION BY THE CLIENT
Notwithstanding anything herein contained to the co ntrary, the Client shall indemnify and hold harmless the Consultant for and against any and all claims, damages, expenses or costs (including those asserted by third parties) directly or indirectly related to the Services to the extent that such claims, damages, expenses and costs exceed in total the Consultant’s liability as stated in Part II of these Conditions, but not exceeding 100% of the Consultant’s fee. This indemnification and hold harmless by the Client shall not apply in cases where such claims, damages and expenses arise from deliberate default or reckless misconduct of the Consultant. 4.2
The expiry of the liability of the Consultant shall be as defined in Part II of these Conditions.
4.3
The Consultant shall be liable for any violation of legal provisions or rights of third parties in respect of patents and/or copyright introduced into documents prepared by him.
4.4
Unless notice to the contrary is given in writing by the Client, the Consultant shall, at the Client’s expense, take out and maintain, on terms and conditions approved by the Client, insurance against third party liability and against loss of or damage to equipment purchased, with funds provided by the Client, for the sole use of the Consultant in the execution of the services, provided that the Consultant shall use his best efforts to maintain at his own cost, reasonable professional liability coverage.
The Client undertakes no responsibility in respect of life, accident, travel or any other insurance coverage for employees or sub-contractors of the Consultant or for the dependents of any such persons as may travel within or to Sri Lanka or elsewhere for the purposes of the services. 4.5
RESTRICTION OF LIABILITY The Consultant has no liability whatsoever for any part of the works not designed by him or not under his responsibility unless due to decisions taken and directives given by the Consultant in the course of carrying out the Services.
4.6
DAMAGES RESULTING FROM ACTS BY CLIENT, CONTRACTOR OR SUPPLIERS
The Consultant has no liability whatsoever for any damage resulting from any act of the Client, the Contractors or the Suppliers which is not covered by the Scope of Services or the Consultant’s instructions or written advice.
5.0
OBLIGATIONS OF THE CLIENT
5.1
FURNISH DATA AND INFORMATION The Client shall furnish without charge and within a reasonable time all pertinent data and information available to him and shall give such assistance as shall reasonably be required by the Consultant for the carrying out of his duties under this Agreement. The Consultant shall be entitled to rely upon the accuracy of the data and information supplied by the Client, with regard to his proprietary rights. The Consultant shall also be entitled to obtain at the Client’s expense such data and information as the Consultant may deem necessary for performing the services required of him.
5.2
The Client shall give his decision on all sketches, drawings, reports, recommendations and other matters properly referred to him for decision by the Consultant in such reasonable time as not to delay or disrupt the performance by the Consultant of his Services under this Agreement.
5.3
AID TO CONSULTANT, HIS PERSONNEL AND THEIR DEPENDENTS
The Client shall facilitate the timely granting to the Consultant, and any of his personnel and, where applicable, their dependents, i) ii)
Necessary permits and licenses for performing the services.
Unobstructed access to all sites and locations involved in carrying out the Services.
5.4
COMPESNATION FOR DUTY ON DOCUMENTS Subject to the provisions of Stamps Duty Act and except when exemption has been arranged, the Client shall compensate the Consultant for any stamp duties and other duties payable on documents, as provided in the Part 11.
5.5
EQUIPMENT, MATERIALS, SUPPLIES AND FACILITIES FURNISHED BY THE CLIENT The Client shall make available, free of charge, to the Consultant and his personnel, for the purpose of the services, the equipment and facilities described in Appendix B.
5.6
DELAY IN OBTAINING EQUIPMENT, MATERIALS, SUPPLIES AND FACILITIES FROM THE CLIENT In the event that the Consultant is delayed in obtaining the equipment and I or facilities set forth in Appendix B, he shall notify the Client of such delay and shall be entitled to appropriate time extension and proportional remuneration for completion of the Services.
5.7
NON SUPPLY OF EQUIPMENT, MATERIALS, SUPPLIES AND FACILITIES FROM THE CLIENT If the anticipated equipment and/or facilities are not forthcoming the Client and the Consultant shall agree on how the affected part of the Services shall be carried out and upon a revised remuneration therefor.
5.8
COUNTERPART PERSONNEL The Client will in conjunction with the Consultant arrange for the selection and provision of counterpart personnel where required, as indicated in Appendix B hereto. Counterpart personnel will be trained by and work under the exclusive direction of the Consultant. In the event that any member of the counterpart personnel fails to perform adequately the work assigned to him by the Consultant, provided such work assignment is consistent with the position occupied by the staff member, the Consultant may request that he be replace and such request shall not be unreasonably refused. If counterpart personnel are not provided in accordance with Appendix B, the Client and the Consultant shall agree on how the affected part of the Services will be carried out and upon a revised compensation therefor.
5.9
SERVICES OF OTHERS In conjunction with the Consultant, the Client un dertakes to arrange the provision of services from others in accordance with Appendix B hereto. The Consultant shall coordinate with the firms and/or individuals listed in Appendix B and shall be compensated as provided in Appendix C. In the event that the Consultant is delayed in obtaining the services from others set forth in Appendix B he shall notify the Client of such delay and shall be entitled to appropriate time extension and proportional remuneration for completion of the Services. If the anticipated services are not forthcoming, the Client and the Consultant shall agree on how the affected part of the Services will be carried out and upon a revised remuneration therefor. The Client shall hold the Consultant harmless against any losses or claims resulting from the failure of others to provide the services to be arranged by the Client in accordance with Appendix B.
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The Client shall also hold the Consultant harmless against any losses or claims resulting from the failures of others to perform in accordance with recognized professional standards.
6.0
SETTLEMENT OF DISPUTES
6.1
AMICABLE SETTLEMENT The parties shall use their best efforts to settle amicably all disputes arising out of or in connection with this Agreement or the interpretation thereof.
6.2
RIGHT TO ARBITRATION Any dispute between the parties as to matters arising pursuant to this Agreement which cannot be settled amicably within thirty (30) days after receipt by one party of the other party’s request for such amicable settlement may be submitted by either party to arbitration.
6.3
RBITRATION All disputes or differences arising out of or in connection with this agreement, including any question regarding it’s existence, validity or termination, shall be referred to, an d finally resolved by Arbitration in Sri Lanka in accordance with the Arbitration Act. No. 11 of 1995, by a sole Arbitrator appointed by the parties. For the purpose of the appointment of the sole Arbitrator, the party initiating Arbitration shall together with it’s notice submit to the other party three names of persons who shall be unconnected with the consultancy agreement associated parties, for the selection of one (01) person by the other party to be appointed as sole arbitrator. Such selection shall be communicated to the party initiating arbitration within thirty (30) calendar days from the date of receipt of the notice & the names. If the other party fails to notify his selection within the prescribed time, then the party initiating arbitration shall select one of the three nominated by him to function as the sole arbitrator and shall inform the other party and the Arbitrator of such appointment.
6.4
Neither party shall be represented at the arbitration by Attorneys-At-Law, but may be assisted by persons who are in allied professions. ICTAD will maintain a list of “Allied Professions” the members of which may be ap pointed as arbitrators or representatives of the parties.
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7.0
PERSONNEL 7.1 STAFF
The Consultant shall provide all necessary staff. Their qualifications and terms of service shall be subject to the approval of the Client, which approval shall not be unreasonably withheld. 7.2
CONSULTANT’S REPRESENTATWE
The Consultant shall designate an individual who shall be his representative at site. 7.3
REPLACEMENT OF INDIVIDUAL SITE STAFF -
Should it become necessary to replace any member of the staff during his contracted term, the Consultant shall forthwith arrange for such replacement with a person of comparable qualifications and experience. The party requesting the replacement shall be responsible for the financial consequences thereof; except in the cases when the Consultant’s staff are replaced for reasons of proved misconduct, inability to perform or violation of laws. All such requests, for whatever reason, must be presented in writing with the particular reasons stated. 7.4
CLIENT’S INDIVIDUAL EXPERTS The Client’s individual experts, if any, assigned to pa rticipate in the Services and specified in Appendix B hereof, shall only be appointed with the agreement of the Consultant and shall be remunerated by the Client. These experts may not be removed or replaced except by the Client acting in consultation with the Consultant. In all other respects such persons shall be subject to the administrative direction of the Consultant. Notwithstanding the appointment of such persons by the Client, the Consultant shall at all times retain full and unseverable responsibility for the due performance of his obligations hereunder and for the satisfactory completion of the Services. The Client shall be liable for these experts’ errors and/or omission unless otherwise stated in Part II of these Conditions.
8.0
8.1
REMUNERATION OF THE CONSULTANT
SPECIFICATION OF REMUNERATION
The Client shall remunerate the Consultant in respect of the Services in accordance with the conditions set forth in Appendix C.
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8.2
REMUNERATION FOR SUPPLEMENTARY SERVICES
In the event of any services being required supplementary to those detailed in A ppendix A due to circumstances arising beyond the control of the Consultant and which could not reasonably have been foreseen or for any additional services, alterations or modifications as agreed between the parties and resulting from the Client’s specific requests which case amendments to the Services or termination of this Agreement, the Consultant shall receive additional remuneration which shall be computed on an agreed basis together with all reimbursable costs incurred. 8.3
ADDITIONAL REMuNERATION FOR DELAYS In the case of delay on the part of the Client or of any Contractor or the taking by the Client of the works or any part thereof out of the hands of any Contractor due to his failure to properly perform the relevant contract, the Con sultant to the extent that such delay results in extra costs, shall be entitled to additional remuneration. Such additional remuneration shall be computed on a time basis together with all reimbursable costs incurred or compounded on an agreed basis.
8.4
REMUNERATION FOR ADDITIONAL SERVICES RESULTING FROM CAUSES BEYOND THE CONTROL OF THE PARTIES If at any time before the completion of the works under the Agreement any part of the works or the equipment (excluding the Consultant’s equipment) shall be damaged or destroyed as a consequence of operations of war, political disturbance or their cause beyond the control of the Consultant, the Client shall pay to the Consultant the appropriate remuneration for any additional work which may be required to be designed and/or supervised by him as a result of such damage or destruction and a compensation for the damage resulting from such operations o r cause.
8.5
LUMP SUM ESCALATION PROVISION
If the remuneration is stipulated as a lump sum plus reimbursable costs an agreed index for escalation of the sum shall be specified in Appendix C.
9.0
PAYMENTS TO THE CONSULTANT
9.1
PROVISION FOR PAYMENTS
The Client shall effect payments to the Consultant in accordance with the payment schedules and in the manner set forth in Appendix C. 9.2
TIME WITHIN WHICH PAYMENTS TO BE MADE
Amounts due to the Consultant shall be paid within the period specified in Appendix C. If the Client fails to pay the Consultant within the specified period 15
interest shall accrue as from the date of expiry of the said period at the rate specified in Appendix C. 9.3
ITEMS IN DISPUTE
If any item or part of an item of an invoice rendered by the Consultant is disputed or subject to question by the Client, the payment by the Client of that part of the invoice which is not contested shall not be withheld on those grounds and the provisions of Clause 9.2 shall apply to such remainder and also to the disputed or questioned item to the extent that it shall subsequently be agreed or determined to have been due to the Consultant and interest at the rate specified in Appendix C shall be paid on all disputed amounts finally determined payable to the Consultant. 9.4
VERIFICATION OF ACCOUNTS Except in the case of lump sum agreements the Client may nominate a reputable firm of accountants to veri& all amounts claimed by the Consultant. Advance written notice of not less than three (3) working days must be given to the Consultant by the Client or the firm of accountants, of such verification which shall be carried out during normal working hours at the place where the records are maintained.
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PART II
The following notes are intended as an aide-memoire in the preparation of clauses (some of which are dealt with, but not exhaustively, in part I) which will vary as necessary to take account of the circumstances and the locality where the works are carried out. These variable clauses which must be specially prepared to suit each particular agreement should cover such of the under mentioned matters and any others as are applicable. CLAUSE 1.3 LANGUAGE / S AND LAW
The Language in which the contract document shall be drawn up shall be…………and all correspondence between the Consultant and the Client shall be………………….. CLASUEI.7
NOTICES
Client’s address: name and contact telephone n umber of responsible official:
Client’s alternative address:
Consultant’s address: name and contact telephone number of responsible official
Consultant’s alternative address:
CLAUSE 2.2 COMMENCEMENT DATE The Services shall be commenced within…………..days / weeks after the Agreement has come into force.
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CLAUSE 2.3 COMPLETION DATE
The Services shall be completed within weeks / months of commencement of the Services, on an agreed programme as given below; CLAUSE 2.3.1 PROGRAMME FOR CONSULTANCY SERVICES
ITEM
COMPLETION DATE
1.0 2.0 3.0 4.0 5.0
6.0 7.0 8.0 9.0 10.0 11.0 12.0
CLAUSE 3.7 ALTERATIONS TO DESIGN
Instructions to Contractor constituting a major variation, omission or addition to the Contract resulting a change in the project cost % shall be any of the following: a) b) c)
increase or decrease in the quantity of any work included in the contract; omission of any such work; changes in the character or quality of such work;
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d) e)
changes in the levels, lines, position and dimensions of any part of the Works ; and execution of additional Work of any kind necessary for the completion of the Works
CLAUSE 4.1 FINANCIAL LIABILITY OF THE CONSULTANT
-
The total liability of the Consultant under this Agreement shall be limited to
CLAUSE 4.2 EXPIRY OF THE LIABILITY OF THE CONSULTANT The liability of the Consultant expires
CLAUSE 5.4 COMPENSATION FOR DUTY ON DOCUMENTS In terms of the Stamp Duty Act the Consultant shall bear the cost of stamp duty when signing such documents with the government Clients. CLAUSE 6.3 ARBITRATION a) If the parties desire that appeal to the Supreme Court should be excluded and the following clause may be inserted. The right to appeal to the Supreme Court relating to any matter connected with the Arbitration including but not limited to the proceedings and award is excluded by this agreement in accordance with sections 37 & 38 of part VII and section 43 of VIII of the said Arbitration Act. b) If the parties desire that they should not be represented by Attorneys—At—Law the following clause may be inserted: Neither party shall be represented at the arbitration by Attorneys At Law, but may be assisted by persons who are in allied professions. —
—
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CLAUSE 7.4 CLIENT’S INDIVIDUAL EXPERTS Consultant shall accept the services of the following individual experts appointed by the Client for the accomplishment of services in the Agreement. Name and
Services to be rendered
Qualifications 1 2 3 4
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APPENDIX A (page 1 of 2) Agreement dated SCOPE OF SERVICES FOR THE CONSULTANCY
ON The Scope of Services to be provided by the Consultant shall be as specified in the document titled “Scope of Services Provided by the Consultants”, and the areas of responsibility of the Consultant shall be subject to Clause 3 and 4 of this document. Services shall be provided to the Client during the following phases of a Project: a.
FEASIBILITY PHASE * * * * *
b.
SCHEMATIC DESIGN PHASE * * * * *
c.
DESIGN DEVELOPMENT PHASE * * * * * * *
d.
CONSTRUCTION DOCUMENT PHASE * * * * * * *
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APPENDIX A (page 2 of 2) e. BIDDING OR NEGOTIATING PHASE * * * * * *
f.
CONSTRUCTION PHASE * * * * * * * * * *
g. MAINTENANCE PHASE * * * * * *
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APPENDIX B (page 1 of 2) Agreement dated ASSIGNED SPECIALISTS, PERSONNEL, EQUIPMENT AND FACILITIES TO BE PROVIDED BY THE CLIENT
CLAUSE 5.5 EQUIPMENT, MATERIALS, SUPPLIES AND FACILITIES FURNISHED BY THE CLIENT.
Equipment, materials, supplies and facilities furnished by the Client, free of charge, for the accomplishment of services in the Agreement shall be as follows: Equipment 1 4 5 2 3 6 Materials
Supplies
Facilities
1 2 3 1 2 3 1 2 3
4 5
6 4 5
6 4 5
6
CLAUSE 5.8 COUNTERPART PERSONNEL
Consultant shalt engage the following counterpart personnel for the accomplishment of services in the Agreement. Name Qualifications Experience 1 2 3 4
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APPENDIX B (page 2 of 2) CLAUSE 5.9 SERVICES OF OTHERS Client shall arrange the services of following organizations and/or individuals for the accomplishment of specified services. Name of the Organization or Services to be rendered Individuals
2 3 4 CLAUSE 7.4 INDIVIDUAL EXPERTS
Client’s individual experts assigned to participate in performing the specified services shall be as follows; Name
Services to be rendered
1 2 3 4
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APPENDIX C (page 1 of 3) SCHEDULE OF FEES
Referred to in the Agreement dated between and for
The Fees payable to the Consultant shall be as stated below. Cl. PERCENTAGE FEES
Fee based on the percentage of the total construction cost shall be calculated as follows. OR C2. LUMP SUM FEE The Consultant shall be paid a Lump Sum fee as follows.
C3. INTERIM PAYMENTS
Interim payments for percentages and lump sum fee shall be paid at completion of work phases as follows; WORK PHASES
PERCENTAGE FEE PAYABLE
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APPENDIX C (page 2 of 3) C4. MOBILIZATION ADVANCE
Where a mobilization advance is to be paid to the Consultant the rate shall be total Consultancy Fee. The recovery shall be as set o ut below;
%
of
the
C5. SERVICES OF OTHERS
With reference to Clause 5.1.9 the Consultant shall be remunerated at fee payable to other Consultant for co-ordinating the work.
% of the
C6. TiME CHARGE FEES
1.
2.
The rate of fee charged on the above basis shall be: a Principals or Partners Rupees hour / month b Professionals Rupees hour / month c Technical Staff Rupees hour / month d. Rupees hour / month
Per Per Per Per
For Staff in traveling in connection with the works shall be: a Principals or Partners Rupees Per b Professionals Rupees Per c Technical Staff Rupees Per d. Rupees Per
Adjustments in the above rates shall be made at intervals of not more than months on the following basis. C7. EXPENSES AND DISBURSEMENTS Any other expenses expected to be charged by the Consultant should be included under this category with the agreed rates. a. b. c. d. e.
(Example: Milage rates shall be Rs
/ km)
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