Appointment of [

] Consultant

CONTENTS
Clauses 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. Page no.

DEFINITIONS AND INTERPRETATIONS ................................................................... 1 SERVICES AND ADDITIONAL SERVICES ................................................................ 4 PREVIOUS AGREEMENTS .......................................................................................... 4 GENERAL INFORMATION .......................................................................................... 5 PRINCIPAL'S INSTRUCTIONS .................................................................................... 5 PRINCIPAL'S REPRESENTATIVE ............................................................................... 5 DUTY OF CARE AND WARRANTIES ........................................................................ 6 PROHIBITED MATERIALS .......................................................................................... 7 OTHER AGREEMENTS ................................................................................................ 7 BUDGET AND PROGRAMME REQUIREMENTS ...................................................... 8 DESIGN CHANGES ...................................................................................................... 8 OTHER CONSULTANTS ............................................................................................ 10 DOCUMENT MANAGEMENT ................................................................................... 10 DELAYS ...................................................................................................................... 11 DESIGN BY OTHERS ................................................................................................. 11 REPORTING REQUIREMENTS ................................................................................. 12 PROJECT TEAM ......................................................................................................... 12 PROFESSIONAL INDEMNITY INSURANCE ............................................................ 13 LIMITATION OF CONSULTANT'S AUTHORITY .................................................... 13 REMEDIES .................................................................................................................. 14 ASSIGNMENT AND NOVATION .............................................................................. 14

22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49.

FORCE MAJEURE ...................................................................................................... 14 ARBITRATION ........................................................................................................... 15 SUB-CONTRACTING ................................................................................................. 15 COPYRIGHT ............................................................................................................... 15 SUPPLY OF DRAWINGS ............................................................................................ 16 INSPECTION OF DOCUMENTS ................................................................................ 16 RECORD KEEPING ................................................................................................... 16 TERMINATION AND SUSPENSION ......................................................................... 17 REMUNERATION ....................................................................................................... 19 REMUNERATION FOR ADDITIONAL SERVICES................................................... 20 DISBURSEMENTS ...................................................................................................... 20 ENTIRETY OF REMUNERATION ............................................................................. 20 TIME RECORDING..................................................................................................... 21 GOODS AND SERVICES TAX ................................................................................... 21 CONFIDENTIALITY ................................................................................................... 21 COUNTERPARTS ....................................................................................................... 21 BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT . 22 WORKPLACE SAFETY AND HEALTH ACT ............................................................ 22 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT .................................................. 23 GOVERNING LAW ..................................................................................................... 23 INDEMNITY................................................................................................................ 23 INDEPENDENT CONTRACTOR ................................................................................ 23 ENTIRE AGREEMENT ............................................................................................... 24 AMENDMENTS .......................................................................................................... 24 FURTHER ASSURANCES .......................................................................................... 24 WAIVER ...................................................................................................................... 24 CONFLICT OF INTEREST .......................................................................................... 24 NOTICES ..................................................................................................................... 25

SCHEDULES Schedule 1 Schedule 2 Schedule 3 Schedule 4 Schedule 5 Scope of Services Time for Performance of Services Project Team and List of Other Consultants Prohibited Materials Agreed Hourly Rates

THIS AGREEMENT is made on the [ ] day of [ BETWEEN: (1) (2)

] 2007 ('this Agreement')

[name] of [address] (hereinafter called 'the Principal'); and [name] of [address] (hereinafter called 'the Consultant').

The Principal and the Consultant are collectively referred to herein as the Parties" and individually as a Party. WHEREAS: (A) The Principal wishes to carry out [general description of works] at [location] (hereinafter called 'the Works'). (B) The Principal agrees to engage the Consultant to provide the services as set out in Schedule 1 of this Agreement for [general description of services to be provided] at [location] for the purposes of or in connection with the Works and the Consultant accepts the engagement of its services on the terms and conditions as set out below in this Agreement. (C) The Principal proposes to award a contract ('Building Contract') or several of them for the construction of the Works. [Only if applicable] NOW IT IS HEREBY AGREED: 1. 1.1 DEFINITIONS AND INTERPRETATIONS In this Agreement: 'Applicable Requirements' means any law, legislation or government policy, which from time to time regulates or affects the Services or the activities to which the Services relate; 'Basic Fee' means the lump sum fee stated at Clause 30 of this Agreement; 'Contractor' means the building contractor appointed under the Building Contract or each of them if more than one; 'Date of Commencement' means [ to stipulate a date or identifiable event, as applicable ] 'Event of Insolvency' means (in relation to a company or other corporation which is the Consultant or the Parent) the inability to pay its debts as they fall due, entry into

liquidation either compulsory or voluntary (except for the purpose of amalgamation or reconstruction), the passing of a resolution for winding up, the making of a proposal to the company and its creditors for a composition in satisfaction of its debts or a scheme of arrangement of its affairs, the application to the court for the appointment of a judicial manager or the appointment of a receiver or judicial manager and (in relation to an individual who is a Consultant) insolvency or inability to pay his debts as they fall due or the taking of any step or the presentation of a petition by any person for the bankruptcy of the Consultant, the making of a proposal to his creditors for a composition in satisfaction of his debts or a scheme of arrangement of his affairs or the appointment of a receiver in respect of his property Intellectual Property means all copyright and future copyright and neighbouring rights (including but not limited to computer programs, documentation, drawings, writing and art works), all rights in relation to inventions, including but not limited to, patent and patent applications, modifications or improvements to the same, registered and unregistered trademarks, registered and unregistered designs, rights in relation to trade secrets, know how and other confidential information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. 'Intellectual Property Rights' means rights in any Intellectual Property; 'Person' includes any firm and any entity having legal capacity; 'Principal', where the case admits, includes its permitted assignees; 'Principal's Representative' means the person named as such in Schedule 3 or such other person as the Principal shall appoint to that position and whose appointment shall have been notified to the Consultant in writing; 'Site' means [ ]

[To be expanded depending on the nature and scope of the services] 1.2 In this Agreement: a. where the context admits the singular includes the plural and vice versa and any gender includes any other gender; b. c. a gender includes the other gender; a reference to a thing includes a reference to a part of that thing;

d.

a reference to a document includes the document as modified from time to time and any document replacing it;

e.

headings and sub-headings have been included for ease of reference and none of the terms, conditions or restrictions herein appearing is to be construed or interpreted by reference to such headings and/or sub-headings;

f.

the words "in writing" include any communication sent by letter, facsimile transmission, or electronic mail (e-mail);

g.

a reference to any statute, proclamation, rule, regulation or ordinance includes any subsidiary legislation made under the said statute or enactment and any statutory consolidation, re-enactment, amendment or replacement of that statute or enactment;

h.

save where a contrary indication appears, 'Clause', 'Schedule' and 'appendix' mean a Clause, schedule or appendix in or to this Agreement

i. j.

money amounts are stated in [country] currency unless otherwise specified; a reference to any agency or body, if that agency or body ceases to exist or is reconstituted or renamed or replaced or has its powers or functions removed ('defunct body'), means the agency or body which performs most closely the functions of the defunct body;

k.

the provisions of this Agreement must be so construed so as not to infringe any law which is for the time being applicable to this Agreement or the transactions contemplated by this Agreement;

l.

if a provision of this Agreement is void or voidable or unenforceable or illegal but would not be void or unenforceable or illegal if it were read down and it is capable of being read down, it must be read down accordingly;

m.

if notwithstanding paragraph l above, a provision of this Agreement is still void or voidable or unenforceable or illegal (i) if the provision would not be void or voidable or unenforceable or illegal if a word or words were severed, that word or those words (as the case may be) are hereby severed; and (ii) in any other case, the whole provision is hereby severed, and the remainder of this Agreement will be given full force and effect.

n.

to the extent to which any provision in this Agreement conflicts with any provision of any Schedule the provision of this Agreement will prevail.

2. 2.1

SERVICES AND ADDITIONAL SERVICES The Consultant shall, in consideration for payment of the Basic Fee, perform in relation to the Works the services referred to in Schedule 1 ('the Services').

2.2

The Consultant shall perform for no additional fee or remuneration any ancillary or indispensably necessary services required in connection with the performance of the Services under this Agreement and the Consultant shall have regard to the requirement for such services.

2.3

The Consultant, in consideration for the payment of the Basic Fee, shall provide the Services: a. b. c. d. in accordance with this Agreement; in accordance with the Applicable Requirements; in accordance with industry best practices; and with the diligence and care expected of a professional experienced in providing Services of this nature and character.

2.4

The Consultant shall provide the Services from the Date of Commencement until the date of termination of this Agreement or such other date as the parties may agree in writing.

2.5

The Consultant shall perform in relation to the Works such [

] services

additional to those described in Schedule 1 as the Principal may reasonably require in writing ('the Additional Services'). 2.6 Subject to Clause 28, the Consultant shall be entitled to additional remuneration for the Additional Services provided pursuant to Clause 2.5. 3. 3.1 PREVIOUS AGREEMENTS Any services performed hitherto by the Consultant for the Principal in connection with the Works shall be treated as having been performed under the terms of this Agreement, which supersedes any previous agreement between the Parties with regard to the same.

4. 4.1

GENERAL INFORMATION The Principal shall provide to the Consultant upon the Consultant's written request all relevant information available to the Principal relating to the Works and other pertinent matters, so far as necessary for the performance of the Services under this Agreement, and provided that such information and documents are available to the Principal. The Consultant shall use reasonable endeavours to verify any information or documents supplied by the Principal and shall advise the Principal of the impact, if any, before placing reliance on such information and documents in performing their Services. In so far as the relevant information mentioned herein is not available to the Principal, the Consultant shall advise the Principal on the nature of the information required, and provide the Principal with all necessary assistance to procure the same.

4.2

The Principal shall assist the Consultant to obtain the necessary passes

that the

Consultant may be required to present to the relevant authorities as a condition to gaining access to the Site. The Consultant shall provide all necessary information and any other forms of assistance to the Principal, to facilitate the Principal's obtaining of and/or application for the said passes. For the avoidance of doubt, the Principal does not warrant or guarantee that any passes so obtained for the Consultant will enable the Consultant to gain access to the Site. 4.3 Where the Consultant requires access to any third party premises, information, date or personnel, the Principal, as a gesture of goodwill, will arrange such access for the Consultant. For the avoidance of doubt, the Principal will not be liable for failure to obtain the aforementioned access or use from the relevant third parties, and upon such failure, the Consultant shall use its own means to procure the necessary access or use to enable them to perform the Services. 5. 5.1 PRINCIPAL'S INSTRUCTIONS Subject to Clause 7, the Consultant shall comply with all instructions of the Principal given in writing under or in connection with this Agreement. 5.2 The Consultant shall obtain the written authority of the Principal before commencing any [for eg, stage of Works]. 6. 6.1 PRINCIPAL'S REPRESENTATIVE Subject to Clause 6.2, all instructions to the Consultant under this Agreement shall be given by the Principal's Representative.

6.2

The Principal's Representative may from time to time appoint any other person to act as his deputy in connection with this Agreement. In that event the Principal's

Representative shall notify the Consultant in writing of the deputy's appointment and the scope of his authority and such deputy may give instructions to the Consultant under this Agreement within the scope of his authority so notified. 6.3 No person other than Principal's Representative or any deputy appointed under Clause 7.2 shall have any authority to bind the Principal under or in connection with this Agreement. 7. 7.1 DUTY OF CARE AND WARRANTIES The Consultant warrants and undertakes that in the performance of his duties under this Agreement the Consultant has used and shall use all the skill and care and diligence reasonably to be expected of suitably qualified and experienced consulting [ ]

undertaking services the like of those hereby undertaken by the Consultant in relation to projects of the scale and character of the Works and that at all times he will apply his skill, competence, care and experience in the best interests and for the benefit of the Principal. 7.2 The Consultants shall use reasonable skill and care to ensure that the design of all parts of the Services complies with the [ requirements applicable to the Works. 7.3 The Consultant represents and warrants that: a. it has and will continue to have and to use the skills, qualifications and experience to provide the Services in an efficient and controlled manner with a high degree of quality and responsiveness and to a standard that complies with this Agreement; b. it will provide the necessary resources to provide the Services and use those resources or services to provide the Services; and it will at all times co-operate with and assist the Principal, and must where reasonably required under this Agreement co-ordinate and implement the activities of any other Consultants and/or Contractors; c. that it has full corporate power and authority to enter into, perform and observe its obligations under this Agreement; and d. the execution, delivery and performance of this Agreement has been duly and validly authorised by all necessary corporate action. ] and other statutory and regulatory

7.4

It is a condition of this Agreement that the Consultant has disclosed in writing to the Principal prior to this Agreement:a. any litigation or proceeding whatsoever, actual or threatened, against the Consultant; and b. matters relating to the commercial, technical or financial capacity of the Consultant or of any sub consultant proposed to be engaged in respect of this Agreement including the existence of any breach or default or alleged breach or default of any agreement, order or award binding upon the Consultant, being matters affecting the Consultants ability to perform any of its obligations under this Agreement, and the Consultant must promptly notify and fully disclose to the Principal in writing any event or occurrence, actual or threatened, during the term which would affect the Consultants ability to per form any of its obligations under this Agreement.

7.5

With or without written requests from the Principal, the Consultant provide all expert and technical advice and skills which are reasonably or normally required or expected. As and when requested by the Principal and within a reasonable time after receiving each such request, the Consultant shall supply all advice and assistance within his power in any matter relating to the present Agreement.

7.6

For the avoidance of any doubt, any approval by the Principal and/or its agents and/or the relevant authorities of any design, plan, drawing, specification and any other documents prepared by the Consultant shall not release or discharge the Consultant of his duties and obligations under this Agreement or at common law.

8. 8.1

PROHIBITED MATERIALS Without derogation from Clause 7, the Consultant shall not specify for use and shall use reasonable diligence to check that others do not specify for use or use in the Works any prohibited materials as referred to in Schedule 4.

9. 9.1

OTHER AGREEMENTS The Consultant may be supplied with copies of any agreements now or hereafter made between the Principal and third parties concerning or related to or affected by the Works. Subject to the Consultant receiving copies of such agreements (or of such parts of the same as shall be material) the Consultant shall so perform his duties under this Agreement as not by any action or omission to cause or contribute towards a breach of the duties and obligations of the Principal under such agreements.

10. 10.1

BUDGET AND PROGRAMME REQUIREMENTS The Consultant shall have due regard, in the performance of the Services and/or the Additional Services, to the Principal's budget requirements for the Works. If the

Consultant becomes aware of any circumstances which may cause those budget requirements to be exceeded, the Consultant shall inform the Principal in writing without delay. 10.2 Programme dates and completion dates for the Works which have been established or may be established or varied, may be made known to the Consultant from time to time. Subject to the Consultant promptly making known to the Principal any reasonable objections to such dates, the Consultant shall so provide all drawings, details, specifications, information and services for which the Consultant is responsible under this Agreement so that the programme dates and completion dates, whether revised or not, can be complied with by the Principal. 10.3 The Consultant shall collaborate with the Principal and the Principal's other consultants to establish a co-ordinated programme for completion of the services and if necessary to revise the same from time to time. 10.4 The Principal, at its sole discretion, may extend the time for the performance or completion of any aspect or part of the Services, as set out in Schedule 2, if it deems that such extension(s) of time is/are reasonable and necessary for the Consultant to perform their Services as contained in Schedule 1. 10.5 If at any time the Consultant is delayed or becomes aware of any circumstances which may prevent him from meeting programme requirements, he shall forthwith inform the Principal in writing and propose in writing, any practicable measures to avoid or reduce the anticipated delay. 10.6 The Consultant shall comply, at his own costs, with all instructions of the Principal given for the purpose of achieving budget or programme requirements or minimising or recovering any cost overruns or delay. 11. 11.1 DESIGN CHANGES The Consultant shall not make or approve any significant alteration (either in design or cost terms or in any way which would affect the period required for the completion of the Works) to any approved or settled design, without the written consent of the Principal.

11.2

Subject to Clause 11.8 below, the Principal may request the Consultant to make variations to any part or parts of the agreed scope of Services, as contained in Schedule 1. Such requests for variations shall not amount to a breach of this Agreement by the Principal.

11.3

The Consultant shall inform the Principal in writing within 10 working days of such request of the cost of such variation, the effect on the Basic Fee, as contained in Clause 27.1, and the effect on completion of the Services of such variation.

11.4

If the Principal wishes the Consultant to proceed with the variation it shall so instruct the Consultant in writing within 10 days of receipt of such advice from the Consultant. This Agreement shall then be deemed to be amended by the terms of such advice from the Consultant.

11.5

Until such time as any variation is agreed between the Consultant and the Principal, the Consultant shall, unless otherwise agreed, continue to perform and be paid for the Services as if such variation had not been required.

11.6

If any variation reduces the scope of the Services and taken together with the cumulative effect of all previous variations would mean that the cost of the Services is less than the cost of the Services envisaged at the date of signature of the Agreement, and if subsequent variations do not bring the cost of providing the Services actually performed up to the cost so envisaged, then the Principal shall on the expiry of the Agreement pay to the Consultant as compensation for reducing the Services envisaged at the date execution of the Agreement and the cost of the Services actually performed.

11.7

The Consultant shall keep the Principal and other project consultants informed on a dayto-day basis of all instructions, variations and design changes made or authorised by the Consultant.

11.8

Where the Consultant wishes to make any changes to the approved design due to any error, oversight or omission of the Principal or the Principal's Representative, such proposal will be reviewed by the Principal or the Principal's Representative and should the proposal result in any increase in the cost of the Services then such increase will be referred to the Principal and the Consultant for agreement on the increased cost. Any increase in cost due to errors should be borne by the party(ies) that made the error and not apportioned to all the parties. In the event that the parties cannot reach an agreement on the increased cost, the issue shall be resolved in accordance with Clause 20 but without prejudice to the Principal or the Principal Representative's right to instruct that

the Consultant proceed to make the said changes to the approved design and the Consultant shall comply with such instruction forthwith. 12. 12.1 OTHER CONSULTANTS The Principal has appointed or proposes to appoint for the purposes of the Works the consultants listed in Schedule 3. The Principal may replace any such consultant with another consultant of the Principal's choice should it be appropriate in the opinion of the Principal to do so. 12.2 The Consultant shall afford the Principal's other consultants his full co-operation at all levels to facilitate the performance of the duties assigned to them, by all means including but not limited to replying promptly to correspondence from other consultants (if any), provision of information and holding regular co-ordination meetings (as and when deemed necessary by the Principal). 12.3 The Consultant shall fully consider and respond in writing to all comments and suggestions of the Principal's other consultant with regard to any matters of design or specification within the concern of the Consultant, or bearing upon the progress or administration of the design or construction of the Works, and shall give due consideration to such comments and suggestions in the performance of the Services. 12.4 If any difference arises between the Consultant and any other consultant of the Principal, the Consultant shall use his best endeavours to achieve a reconciliation. If reconciliation is not achieved and is not likely to be achieved, then before such difference becomes detrimental to the Works, the Consultant shall, in writing, refer the matter of difference to the Principal for instructions. 12.5 If the Consultant produces any designs by computer-assisted means, then (without prejudice to Clause 23.1), the Consultant may be required at his own cost to supply (as often as necessary) copies of such designs to the other consultants in the form of computer disks or in other digitally or electronically reproducible form. 13. 13.1 DOCUMENT MANAGEMENT The Consultant shall assist the Principal's other consultants in drawing up to the reasonable approval of the Principal and shall comply with common standards and procedures for the production and format of drawings and documents, and electronic data transfer and similar arrangements for document management.

10

14. 14.1

DELAYS Should the Principal incur extra costs or the extent of the Works be increased by reason of: a. Any delay, interruption or suspension of the Works arising from any act or omission of the Consultant, its servants, agents or contractors; or b. Delay or failure by the Consultant to comply with any of its obligations contained in this Agreement; or c. The need to re-perform Works or perform additional work if any of the Works performed by the Consultant are inadequate or unacceptable, Then such extra costs may be charged by the Principal to the Consultant, and shall be due and payable when such costs have been calculated by the Principal and invoiced to the Consultant, and the Principal shall either set off the invoiced extra costs from any amounts due and owing to the Consultant, or choose to require the Consultant to pay the extra costs accordingly. Where the Principal requires the Consultant to pay the extra costs, the Consultant shall pay such extra costs to the Principal within 7 days of receipt of such written request from the Principal.

15. 15.1

DESIGN BY OTHERS Subject to the Principal's written instructions or consent, specialist contractors or subcontractors or suppliers or other specialists may be commissioned to design certain part or parts of the Services. The Consultant shall review the designs, drawings, calculations and specifications of such specialists and shall inspect their work, and shall co-ordinate and integrate the designs of such specialists into the overall design for the Works where the Consultant deems appropriate and beneficial to the Works.

15.2

The Consultant shall arrange, chair and minute design co-ordination meetings to coordinate the design of any specialist contractors, sub-contractors, suppliers and other specialists to whom any design is delegated as contemplated in Clause 15.1. Such meetings shall be held as often as may be necessary to ensure adequate co-ordination of design and to comply with the Principal's programme for the carrying out of the Works. The Consultant shall ensure that he is represented at each meeting by staff of adequate seniority.

11

15.3

The Consultant shall prepare and circulate minutes of each meeting amongst the said specialist contractors, sub-contractors, suppliers and other specialists to whom any design is delegated as contemplated in Clause 15.1. The Consultant shall also submit a copy of the minutes of each meeting to the Principal within 14 days of each meeting.

16. 16.1

REPORTING REQUIREMENTS The Consultant shall provide to the Principal each week a written report in such form and detail as the Principal shall prescribe or require, reporting to the Principal on all matters within the Consultant's responsibility under this Agreement.

16.2

The Consultant shall send to the Principal on a daily basis, copies of all correspondence and documents sent or received by the Consultant relating to the Works.

17. 17.1 17.2

PROJECT TEAM The [ ] shall be the person so described in Schedule 3. ] is unable to assume or continue to perform the functions

In the event that the [

allocated to him under this Agreement, the Consultant shall consult the Principal and procure such other member of the Consultant's staff, which shall be approved by the Principal, to assume his position and functions. 17.3 The Consultant shall procure that the [ (a) ]:

assumes personal direction and control of the Services to be provided by the Consultants;

(b)

devotes himself to the Works, and abstains from any other professional responsibilities which would or might impede or impair the performance of the Consultant's duties under this Agreement; and

(c)

maintains direct and regular contact with the Principal on all matters pertaining to the Consultant's responsibilities under this Agreement.

17.4

The Consultant shall appoint a deputy [

] to be responsible for overall

management, supervision and co-ordination of the Services under this Agreement. The person to be appointed as deputy [ ] and any person appointed to replace him

shall be approved by the Principal in writing in advance. 17.5 During the period in which the Services are under construction or installation, the Consultant shall provide [full- or part-time] resident [ the Principal. The resident [ (s)] as and when required by

(s)] shall be of sufficient seniority and adequate

12

experience to monitor the quality of construction and to ensure compliance with the requirements of the Building Contract. 17.6 The Principal shall be informed in writing of the names, designations and responsibilities of the Consultant's staff employed on the Works and the Consultant shall not change such personnel without the Principal's prior written consent. 18. 18.1 PROFESSIONAL INDEMNITY INSURANCE The Consultant warrants that there is in force a policy of professional indemnity insurance covering his liabilities in respect of any negligence of the Consultant under or in connection with this Agreement, with a limit of indemnity of not less than [ an excess of not more than [ ] and

] for any occurrence or series of occurrences arising out

of each and every event (or in the case of claims for pollution or contamination, with not less than such limit of indemnity in the aggregate for any and all claims notified in the year of insurance). The Consultant agrees to maintain such insurance at all times until 5 years after the date of commissioning of the whole of the Works under the Building Contract. 18.2 At the written request of the Principal, the Consultant shall provide to the Principal documentary evidence that the insurance required under this Agreement is being maintained. 19. 19.1 LIMITATION OF CONSULTANT'S AUTHORITY The Consultant shall not, without the prior written consent of the Principal: a. Enter into any contractual or any other form of commitment with any third party for and/or on behalf of the Principal; b. Waive, settle or compromise any contractual or other entitlement the Principal may have against any third party or which any third party may have against the Principal; c. Suspend or terminate any contract entered into by the Principal for the performance of any work, services or supplies pursuant to any contract entered into by the Principal; and d. Make, approve or permit any material alteration or addition to or omission or deviation, without the Principal's written consent, from those aspects of the design and/or specification of the Works and/or the budget of the

13

Works, cost plan and/or programme which have previously been approved or agreed by the Principal.

20. 20.1

REMEDIES If the Consultant fails to comply with any requirement of Clause 18 or if the Consultant becomes insolvent so that his covenant is impaired, the Principal shall be entitled to recover from the Consultant any premiums reasonably incurred to effect insurance (such as inherent defects insurance or other suitable cover) in order to obtain suitable alternative protection. This Clause 20 shall be in addition to any other remedy the Principal may have for breach of Clause 18.

21. 21.1

ASSIGNMENT AND NOVATION The Principal shall be entitled to assign the benefit of this Agreement by absolute assignment to any person without the Consultant's consent.

21.2

The Principal shall be entitled to charge and/or assign by way of security the benefit of this Agreement to any person without the Consultant's consent.

19.3

The Principal may at any time novate this Agreement to another party and the Consultant shall consent to the same. The Consultant shall not assign or charge the benefit of this Agreement to any person without the Principal's written consent.

19.4

22. 22.1

FORCE MAJEURE If the performance of this Agreement or any obligation under it is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the Party obliged to perform it, the Party so affected (upon giving prompt written notice to the other Party) shall be excused from performance to the extent of the prevention, restriction or interference, but the Party so affected shall do what is reasonably in its means to avoid or remove the causes of non-performance and shall continue performance under this Agreement with the utmost despatch whenever such causes are removed or diminished.

22.2

Either Party may, if such delay continues for more than [] weeks, terminate this Agreement forthwith on giving notice in writing to the other in which event neither party shall be liable to the other by reason of such termination save that the Principal shall pay the Consultant a reasonable sum in respect of any work carried out by it prior

14

to such termination and for that purpose the Consultant may deduct such sum from any amounts previously paid by the Principal under this Agreement (the balance (if any) of which shall be refunded to the Principal whether paid by way of deposit or otherwise). 23. 23.1 ARBITRATION All claims, disputes, differences and other matters in question or controversy between the Parties under, arising out of or in connection with or relating to this Agreement or the breach thereof, including any question as to the existence, validity or interpretation of this Agreement, shall be referred to arbitration for final decision by a sole arbitrator to be agreed by the Parties, or failing such agreement within thirty (30) days, by a sole arbitrator to be appointed by the Chairman of the Singapore International Arbitration Centre (hereinafter called the "SIAC"). 23.2 23.3 The seat of the arbitration shall be the Republic of Singapore. The arbitration shall be conducted in accordance with and subject to the Arbitration Act (Cap. 10) of the Republic of Singapore and any consolidation, modification, amendment or re-enactment thereof for the time being in force and the rules of the arbitration shall be the Domestic Arbitration Rules of the SIAC, for the time being in force. 23.4 24. 24.1 The arbitration shall be conducted in the English language. SUB-CONTRACTING The Consultant shall not sub-contract or delegate the whole or any part of the Services and/or its duties under this Agreement save on the Principal's written instruction or with the Principal's written consent. 25. 25.1 COPYRIGHT The Consultant hereby grants to the Principal an irrevocable, non-exclusive licence to use and reproduce any of the designs, drawings, details, plans, calculations and other documents produced for the purposes of this Agreement ('Drawings'). The Principal shall be entitled to use and to reproduce any of the Drawings for any purpose whatsoever connected with the Works, including the construction, advertisement, letting, sale, maintenance, repair, reinstatement, reconstruction and extension of the Works. The Principal shall be entitled to grant sub-licences in the terms of this licence. 22.2 The Consultant warrants that the use of the Drawings for the purposes of the Works will not infringe the rights of any third party.

15

22.3

Any work product and Intellectual Property Rights created by or on behalf of the Principal (including any work based on or otherwise derived from the Project Documents or Confidential Information of either Party) during the performance of, or otherwise in connection with, the Services or this Agreement (whether before or after the commencement date of this Agreement) is and will be owned solely by the Principal, and this Clause operates, to the extent necessary, to assign all such Intellectual Property Rights to the Principal.

26. 26.1

SUPPLY OF DRAWINGS For no additional fee the Consultant shall supply copies of the Drawings (as defined in Clause 25.1) to the Principal; and to the Principal's other consultants and to the Contractor as and when necessary to enable them to discharge their respective functions in relation to the Works.

26.2

After the termination or conclusion of the Consultant's employment under this Agreement, the Consultant shall supply the Principal with either physical copies or electronic or digital copies that are retrieved or retrievable from or stored or storable in a computer or computers or other equivalent device or appliance owned, managed or operated by the Consultant (hereinafter called "Soft Copies") of such of the Drawings as the Principal may from time to time request, and the Principal shall pay the Consultant's reasonable costs of producing such physical copies or Soft Copies.

27. 27.1

INSPECTION OF DOCUMENTS The Principal shall be entitled from time to time (after as well as before the termination or conclusion of the Consultant's employment under this Agreement) on reasonable notice in writing by itself or its appointee to inspect any of the Consultant's papers or any other form of record brought into being or received by the Consultant in the performance of his duties under this Agreement and relating to the Works (but excluding papers or other records relating to the internal management or administration or accounts of the Consultant) and to be provided with copies of any such records. The Principal shall pay the Consultant's reasonable costs of producing such copies.

28. 28.1

RECORD KEEPING All records in any medium (whether written, computer readable or stored or storable in a computer or computers or other equivalent device or appliance) including accounts, documents, drawings and private notes about the Principal and all copies and extracts of them made or acquired by the Consultant in the course of their engagement shall be:

16

a. b. c. d.

the property of the Principal; used for the purpose of the Principal only; returned to the Principal on demand at any time; and returned to the Principal without demand on the termination or expiry of the Consultant's engagement under the Agreement.

29. 29.1

TERMINATION AND SUSPENSION Without prejudice to its rights under the common law or otherwise, the Principal may, at any time after the occurrence of any of the following events terminate this Agreement, in whole or in part with immediate effect, by service of a written notice thereof to the Consultant: a. If the Consultant abandons or refuses to proceed diligently or at all with the Services under this Agreement; b. If the Consultant fails or ceases to perform his duties under this Agreement to the Principal's satisfaction; c. d. Upon the occurrence of an Event of Insolvency of the Consultant; The Consultant suffers any execution against its assets having adverse effect on its ability to perform this Agreement; e. f. The Consultant ceases, or threatens to cease, to carry on its business; The Consultant assigns its rights otherwise than in accordance with the requirements of this Agreement; g. The Consultant suffers a change in control which, in the reasonable opinion of the Principal, adversely affects the Consultants ability to perform the Services; h. The Consultant breaches any covenant, condition, undertaking or agreement contained in this Agreement to be performed or observed by the Consultant and such breach (if capable of rectification in the sole opinion of the Principal) is not remedied to the reasonable satisfaction of the Principal within thirty (30) days after a notice requiring rectification has been sent to the Consultant; i. This Agreement is not, or ceases for any reason (or is claimed by the Consultant not) to be, the legal and valid obligations of the Consultant, binding upon it in accordance with its terms;

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j.

It is or will become unlawful for the Consultant to perform or comply with any one or more of its obligations under this Agreement;

k.

There is a change in the ownership of the Consultant or any merger and acquisition involving the Consultant; or

l.

The Consultant has failed to perform or meet any service level or service standard stipulated by the Principal and/or in this Agreement to the Principal's satisfaction, or if the Principal determines that the Consultant has breached any provision of this Agreement. For this purpose, ratings worse than Needs Improvement (or equivalent wording or grading) awarded by the Principals internal audit department in relation to any audit of the Services, and/or procedures and processes by which the Services are delivered by the Consultant will be deemed to constitute a performance failure of the Consultant.

29.2

In the event where all or any part of the Basic Fee or instalment of the Basic Fee or expenses or any other amounts payable by the Principal to the Consultant under this Agreement shall remain unpaid for thirty (30) days after becoming due, the Consultant shall serve a written notice on the Principal requiring the Principal to make payment within thirty (30) days from the receipt of the written notice. If the Principal fails to make payment within thirty (30) days from the receipt of the written notice, the Consultant may terminate this Agreement with immediate effect by service of a written notice thereof to the Principal.

29.3

Where, before termination of this Agreement, the Principal has made any payment in advance to the Consultant for which it has not received any Services, the amount of that payment must be repaid by the Consultant to the Principal immediately on termination and, if not repaid, is recoverable by the Principal from the Consultant as a debt.

29.4

If this Agreement is terminated in whole or in part under this Clause 29.1: a. subject to this Agreement and Clause 29.5 in particular, the Parties are relieved from future performance, without prejudice to any right of action that has accrued at the date of termination; b. the Consultant must comply with Clause 29.5; and

the Principal must, subject to the other provisions of this Agreement, pay the Consultant for any Services that were performed in accordance with this Agreement prior to the date of termination.

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29.5

The Consultant must provide all reasonable assistance and cooperation necessary, prior to or during any termination notice period and on and from expiration or termination of this Agreement (in whole or part) for any reason, to transfer the Services to the Principal or an alternative Consultant in a manner which ensures continued provision of the Services or services similar to the Services (as the case may be) in accordance with the Services. The Consultant also agrees that it will not hinder in any way, the transition of the provision of services similar to the Services to a new Consultant upon termination or expiration of this Agreement or part of this Agreement. If this Agreement is terminated only in part, the obligations of the Consultant under Clause 29.5 in respect of that termination apply only to the extent necessary to ensure the orderly transition to the Principal or other Consultant of services similar to the Services which are the subject of the terminated part of this Agreement.

29.6

The Principal may in its absolute discretion, by notice in writing, suspend the performance of the Services under this Agreement.

29.7

In the event of a suspension of the Services under this Agreement for less than six (6) months, the Consultant may request in writing that the Services be resumed. In the event of a suspension of the Services under this Agreement for longer than six (6) months, unless written instructions to resume are given by the Principal within 28 days after the expiry of the six (6) months, the employment of the Consultant shall end upon the expiry of the said period of 28 days.

29.8

Termination of the employment of the Consultant shall not affect the operation of any provisions of this Agreement which remain capable of operation after such termination.

30. 30.1

REMUNERATION Save as otherwise expressly provided for in this Agreement, the whole of the Consultant's remuneration under this Agreement for performing the Services shall be the fixed lump sum of $[ ] ("Basic Fee").

30.2

The fee attributable to each [ proportionate to the rate at which each [

] is to be paid monthly and in amounts ] is performed, provided that such fee is

recorded in tax invoices issued by the Consultant . Except for the final instalment, payment for each of these tax invoices shall be made 35 days after the receipt of each corresponding tax invoice. The final tax invoice shall be paid 90 days after the expiry of the defects liability period under the Building Contract, or where this Agreement

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has been terminated pursuant to Clause 29 herein, the last tax invoice issued by the Consultant for the Services provided before the termination of this Agreement shall be paid 45 days after the termination of the Agreement. 30.3 If the amount of any fees or disbursements becoming due hereunder is wrongfully withheld after the relevant final date for payment, such amount shall bear simple interest at the rate of [ ]%, from the final date for payment to and including the

date on which such amount is paid or discharged. 30.4 The Principal has the right to set-off any sums due and owing to the Principal by the Consultant against monies due and owing to the Consultant. The Principal shall exercise such right of set-off after giving the Consultant fourteen (14) days' written notice of their intention to do so, stating in the notice the items for which monies are due and owing to the Consultant, the quantum of such monies, the items for which monies are due and owing to the Principal, the quantum of such monies and the remaining amount (if any) that is due to the Consultant or any remaining amount due to the Principal after such set-off. 31. 31.1 REMUNERATION FOR ADDITIONAL SERVICES The Consultant in performing the Additional Services under Clause 2.5 shall be remunerated at the hourly rates set out in Schedule 5, provided that the Consultant notifies the Principal in writing of the additional charge(s) that may be imposed on such Additional Services performed. 32. 32.1 DISBURSEMENTS The Principal shall reimburse all statutory fees and expenses properly incurred by the Consultant in connection with the Works. 32.2 The Consultant shall not otherwise be entitled to recover disbursements from the Principal unless the Principal so approves of the same in writing. 33. 33.1 ENTIRETY OF REMUNERATION Subject to Clauses 2.5 and 31 above, the fees and disbursements payable to the Consultant under Clauses 30 and 32 shall be the Consultant's entire remuneration under this Agreement. 33.2 The Consultant accepts that the nature of the Services to be provided under this Agreement are such as will require an amount of abortive work, reworking, renegotiation and repetition, the extent of which cannot be accurately forecast. The

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Consultant agrees that no amount of such abortive work, reworking, renegotiation or repetition shall entitle the Consultant to any additional fee, whether due to instructions of the Principal or to other circumstances brought about by the Principal or otherwise. 34. 34.1 TIME RECORDING The Consultant shall maintain records of all time spent by his professional and technical staff [(including partners)] in performing each service performed by such staff under this Agreement. 34.2 The Consultant shall from time to time upon request (and after as well as before the termination or conclusion of the Consultant's employment under this Agreement) make such records available to the Principal or his appointee for inspection and provide such copies as the Principal may request. 35. 35.1 GOODS AND SERVICES TAX All fees, costs, charges and expenses payable by the Principal to the Consultant under this Agreement do not include any goods and services tax ('GST'). 35.2 The Consultant must promptly provide the Principal with an invoice or receipt, which is in an approved form for GST purposes. 36. 36.1 CONFIDENTIALITY Save as may be necessary in the performance of the Services under this Agreement, or as the Principal may allow in writing, the Consultant shall treat as confidential all information relating to this Agreement and the Works, and shall take all reasonable steps to see that its employees do likewise. 37. 37.1 COUNTERPARTS This Agreement may be signed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Either Party may enter into this Agreement by signing any such counterpart and each counterpart may be signed and executed by the Parties and transmitted by facsimile transmission and shall be as valid and effectual as if executed as an original.

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38.

BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT

38.1

The following provisions set out hereafter shall apply insofar as this Agreement is governed by the Building and Construction Industry Security of Payment Act (Cap. 30B) ('the SOP Act').

38.2

It is agreed that the interest on any unpaid amount of a progress payment and/or Payment Claim (both as defined in the SOP Act) that has become due and payable by the Principal to the Consultant shall be at the rate of one percent (1%) per annum.

38.3

The Consultant shall be entitled to serve a Payment Claim on the [] day of each month. For the avoidance of doubt, the submission of a Payment Claim under the SOP Act shall be separate and distinct from and shall not be constituted by the invoice submitted under this Agreement.

38.4

In the event the Consultant serves a Payment Claim under the SOP Act, the Payment Claim shall state in the heading that it is a Payment Claim made under the SOP Act.

38.5

The Principal shall be entitled to serve a Payment Response (as defined in Section 11 of the SOP Act) within twenty-one (21) days of service of the Payment Claim by the Consultant.

39. 39.1

WORKPLACE SAFETY AND HEALTH ACT The Consultant warrants and undertakes that it is aware of and familiar with the provisions of the Workplace Safety and Health Act 2006 (Act No. 7 of 2006) [hereinafter called the "WSHA"] and any regulations made thereunder or other related regulations that are or may be applicable to the Works and that the Consultant shall comply fully with its statutory duties and obligations under the WSHA and any regulations made thereunder or other related regulations and shall further do all things necessary so as to enable the Principal to comply with and/or otherwise not to be in breach of its statutory duties under the WSHA and any regulations made thereunder.

39.2

No inspection or approval or review by the Principal or by any person acting on behalf of the Principal nor any omission to inspect or review or to disapprove shall negate or diminish any duty or liability of the Consultant under or in connection with this Agreement.

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40. 40.1

CONTRACTS (RIGHTS OF THIRD PARTIES) ACT This Agreement is not intended to confer any rights on any third person pursuant to the Contracts (Rights of Third Parties) Act (Cap. 53B).

41. 41.1 42. 42.1

GOVERNING LAW This Agreement is subject in all respects to the laws of the Republic of Singapore. INDEMNITY In addition, and without prejudice to the Consultants other covenants in this Agreement to indemnify the Principal but in addition thereto, the Consultant shall indemnify the Principal from and against any and all actions, proceedings, liabilities, claims, demands, losses, damages, charges, costs (including legal costs on a full indemnity basis) and expenses of whatever nature which the Principal may directly sustain, incur or suffer by reason of, or arising out of or in connection with (except to the extent such loss is caused or contributed to by the Principal, its employees, agents or subcontractors, in which event the Consultant shall only be liable for such proportion of the loss as is attributable to the actions of the Consultant):a. any breach by the Consultant, its agents, employees, personnel or subconsultants, of any of its obligations, warranties and duties under or in connection with this Agreement; b. any neglect or default of any Consultant's sub-consultants and/or subcontractors appointed under Clause 24 in the performance or purported performance of its obligations under its sub-contract; c. any negligence or unlawful or unauthorised exercise by the Consultant or any of its authorised officers of any powers or rights conferred on it or them by this Agreement.

43. 43.1

INDEPENDENT CONTRACTOR The Principal hereby acknowledges and agrees that the Consultant is and shall, in the performance of its duties and obligations under this Agreement, remain an independent contractor and nothing in this Agreement shall in any manner howsoever render the Consultant a partner, agent or employee of the Principal and neither of the Parties shall hold itself out accordingly for any purpose unless otherwise specified in this Agreement.

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44. 44.1

ENTIRE AGREEMENT This Agreement embodies and sets forth the entire agreement and understanding of the Parties in relation to its subject matter and supersedes all prior oral and written agreements, understandings or arrangements relating to the subject matter of this Agreement. Neither Party shall be entitled to rely on any agreement, understanding or arrangement (whether oral or written) which is not expressly set forth in this Agreement or any amendment thereto pursuant to Clause 45.

45. 45.1

AMENDMENTS This Agreement shall not be amended, modified, varied or supplemented except in writing signed by the duly authorised representatives of the Parties.

46. 46.1

FURTHER ASSURANCES Each party will sign, execute and deliver all documents, instruments and writings and will do all other acts, matters and things as may be necessary to give full effect to this Agreement.

47. 47.1

WAIVER No failure or delay on the part of either Party to exercise or in exercising any right or remedy under this Agreement shall be construed or deemed as a waiver thereof nor shall any single or partial exercise of any right or remedy under this Agreement preclude the exercise of any other right or remedy or preclude the further exercise of such right or remedy as the case may be. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any right or remedy provided by law or in equity.

48. 48.1

CONFLICT OF INTEREST The Consultant warrants that to the best of its knowledge no conflict of interest exists or is likely to arise in the performance of its obligations under this Agreement.

48.2

Should the Consultant inform the Principal of an actual or potential conflict of interest or should the Principal otherwise become aware of such an actual or potential conflict of interest, the Principal may by written notice to the Consultant seek the removal of that conflict within a reasonable time specified in the notice, and failure by the Consultant to remove the conflict shall constitute a breach of this Agreement entitling the Principal to terminate this Agreement or at the Principals option, that part of the Services in respect of which there is such an actual or potential conflict of interest.

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49. 49.1

NOTICES A Party giving notice under this Agreement must do so by notice: a. b. in writing; and addressed to the address of the recipient specified in this Agreement or as altered by notice given in accordance with this Clause: The Principals Representative is: [state full name and address] The Consultant's Representative is: [state full name and address] c. d. addressed to the address and designation of recipient by facsimile to the recipients last known facsimile number in the senders records; or e. by email to the recipients last known email address in the senders records.

49.2

A notice given in accordance with Clause 49.1 will be deemed received if:

(i) (ii)

left at the recipients address, on the day of delivery, with record of delivery; sent by pre-paid post, second day after the day of posting (provided that second day not being Sunday or public holiday);

(iii) (iv)

sent by facsimile, when the answer back is received; sent by email, if no message is received stating that the notice was undeliverable.

IN WITNESS whereof the Principal and the Consultant [by its partners] have caused this Agreement to be duly executed. Signed by ) .................................................. ) ) ) ) ..................................................
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for and on behalf of

Print Name -------------------------................................................................. Witness Signature ................................................................. Print Name Signed by ) .................................................. ) ) ) ) .................................................. Print Name

for and on behalf of

---------------------------................................................................. Witness Signature .................................................. Print Name

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