CIRCULAR

ISSUING CONTRACT FORM OF TECHNICAL INFRASTRUCTURE WORKS COMMONLY USED AND CONTRACT OF MANAGEMENT AND OPERATION OF TECHNICAL INFRASTRUCTURE WORKS COMMONLY USED

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

Pursuant to Decree No. 72/2012/ND-CP dated September 24, 2012 of the Government on management and common use of infrastructure works;

At the proposal of Director of Technical Infrastructure Department

The Minister issues the Circular guiding the contract form of technical infrastructure works commonly used and contract of management and operation of technical infrastructure works commonly used.

Article 1. Issuing together with this Circular the “form of contract of technical infrastructure works commonly used and contract of management and operation of technical infrastructure works commonly used”.

Article 2. The terms defined in the "Contract form" issued together with this Circular is mandatorily applicable, based on specific conditions and instructions in the note. When signing contract, the parties may have additional terms and contents accordingly.

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Article 4. Ministers, heads of ministerial-level agencies, government-attached agencies, Chairman of People's Committee of centrally-affiliated provinces and cities and the organizations and individuals concerned are liable to execute this Circular. /.

FOR THE MINISTER
DEPUTY MINISTER




Cao Lai Quang

FORM OF CONTRACT OF TECHNICAL INFRASTRUCTURE WORKS COMMONLY USED

(Issued together with Circular No.: 03/2013/TT – BXD on April 02, 2013 of Minister of Construction)

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Socialist Republic of Vietnam

Independence - Freedom - Happiness

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                                            Place.....date … month … year …

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CONTRACT OF TECHNICAL INFRASTRUCTURE WORKS COMMONLY USED

No⁽¹⁾ …/(Year)/(Contract symbol)

Works: ⁽²⁾

Location: ⁽³⁾

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Between

⁽⁴⁾ (Owner or works management and operation authorized unit )

And

⁽⁴⁾ (Organization and individual using works in common)

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Index

Part I. Grounds for contract signing

Part III. Terms and conditions of contract.

+ Article 1. Contract documents and language used;

+ Article 2. Contract content;

+ Article 3. Lease term, installation time and contract guarantee;

+ Article 4. Contract value, advance and method of payment;

+ Article 5. Documents and progress of payment;

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+ Article 7. Rights and obligations of Party A;

+ Article 8. Rights and obligations of Party A;

+ Article 9. Suspension and termination of contract.

+ Article 10. Dispute and settlement of dispute;

+ Article 11. Contract insurance;

+ Article 12. Force majeur;

+ Article 13. Contract liquidation;

+ Article 14. Contract validity;

+ Article 15. Other terms;

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Part I. Grounds for contract signing

- Civil Code No. 33/2005/QH11 dated June 14, 2005;

- Construction Law No. 16/2003/QH11 dated November 26, 2005;

- Law amending and supplementing a number of articles of the laws relating to capital construction No.38/2009/QH12 dated June 19, 2009;

- Decree No. 72/2012/ND-CP dated September 24, 2012 of the Government on management and common use of technical infrastructure works;

- Circular No  / 2013/TT-BXD dated  /   / 2013 by the Ministry of Construction issuing contract form of technical infrastructure works commonly used and contract of management and operation of technical infrastructure works commonly used

- Inter-ministerial Circular No. / 2013/TT-BTC dated   /   / 2013 by the Ministry of Finance, Ministry of Construction ... guiding the mechanism, control principles and methods of determining the rent ...

- Based on ⁽⁵⁾ ...

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Today, at........(place), we consist of:

Party A (the lessor): owner (or operation management unit authorized by the owner)

- Transaction name ……..

- Representative (or authorizd representative):……….. Position:……………..

- Address:……………

- Tel No.:………                    Fax:………       E-mail:…………………

- A/C No.: ………….               At:…..                           

- Unit code (tax code): ………..

Party B (Lessee): Unit, organization (individual)

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- Representative (or authorizd representative):……….. Position:……………..

- Address:……………

- Tel No.:………                    Fax:………       E-mail:…………………

- A/C No.: ………….                                            

- Tax code: ………..

Both parties have agreed as follows:

Article 1. Contract documents and language used

1. Contract documents include the grounds for contract signing; the terms and conditions of this contract and attached documents as follows:

            a) Diagram (drawing), location, list, volume (wires, cables, pipes and equipment) installed in the works and list of works for installation;

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            c) Power-of-attorney for contract signing No..........dated.......month......year.....(in case of authorization from owner or organization);

            d) Contract annex;

            đ) Other relevant documents.

2. Language used in this Contract is Vietnamese⁽⁶⁾.

Article 2. Content of contract

Party A has agreed to lease Party B the works ⁽²⁾.... for installation and operation, maintenance of wires (cables or pipes) and equipment ⁽⁷⁾ …with the following contents:

1. Installation.

a) Request for installation permit as prescribed;

b) Making diagram (drawing) of installation place;

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d) Making list and asset volume to be installed;

e) Organizing installation.

2. Operation, and maintenance of installed assets

a) Formulating operation and maintenance process of Party B’s assets installed in the works;

b) Making list of assignment of operation and maintenance ⁽⁸⁾;

c) Organizing operation and maintenance under process

3. Other tasks.....

Article 3. Lease term, installation time and contract guarantee

1. Lease term: ⁽⁹⁾…

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3. Installation time.........day (s)

4. End date of lease term: ⁽¹¹⁾…

5. Contract guarantee… ⁽¹²⁾

Article 4. Contract value, advance and method of payment

1. Contract value ⁽¹³⁾: ...                      In words: ...

2. Advanced funding ⁽¹⁴⁾: ...                 In words: ...

3. Method of payment: ⁽¹⁵⁾…

Article 5. Documents and payment term ⁽¹⁶⁾

1. Payment documents:

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Article 6. Modification of contract

1. Cases of modification of contract: Change of legal grounds, technical regulations and standards, scope of work and polices directly affecting the change of conditions for contract performance.

2. Principle of modification of contract: ⁽¹⁷⁾...

Article 7. Rights and obligations of Party A

1. Party A’s obligations:

a) Developing and issuing the process of management and operation of works to ensure the commonly used capacity by the design approved by the competent authorities. Organizing operation and maintenance of commonly used works under the process.

b) Performing tasks related to maintenance and operation of wires, cables, pipelines and equipment of Party B installed in the works in the list of assignment at Point b, Clause 2 of Article 2;

c) Extending contract or signing new contract if Party B has written confirmation of the need to continue the use of the works after the expiration of the signed contract ⁽¹⁸⁾;

d) Notifying in writing Party B for coordination  upon any change of its representative, change or supplementation of units or individuals involved in common use or occurrence of changes as well as prior to taking the measures to strengthen, repair or upgrade works;

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g) Restoring the integrity or compensating damaged assets caused to Party B by Party A.

h) Other responsibilities ⁽¹⁹⁾…

2. Party A’s rights:

a) Requiring Party B to make payment in due time as agreed in the signed contract.

b) Suspending or terminating the implementation of contract as specified in Article 9 of this contract.

c) Requiring Party B to restore the integrity or compensate the damaged assets of Party A or a third Party caused by Party B.

d) Other powers ⁽¹⁹⁾…

Article 8. Rights and obligations of Party B

1. Party B’s bligations:

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b) ....day(s) before the expiry date of the contract, there must be written confirmation of the needs to continue the use of works (if any) sent to Party A. In case of no need for further use, there must be written notice to Party A of the time limit for removal to ensure the completion before the end day of the lease term of the contract (unless otherwise agreed in writing );

c) Immediately notifying Party A in writing for coordination upon any change of its representative, or occurrence of changes as well as prior to taking the measures to strengthen, repair or upgrade ....(wires, cables, pipes) and the above equipment;

            d) Ensuring environmental sanitation, safety for people and assets of the parties involved in common use with all responsible persons for coordination with Party A in the inspection and monitoring as well as processing the contingencies;

e) Making full and timely payment as in the signed contract. Do not intentionally lease its portion to other units without Party A’s consent;

g) Restoring the integrity or compensating damaged assets  caused to Party A or a third Party by Party B;

h) Other responsibilities ⁽¹⁹⁾…

2. Party B’s rights:

a) Requiring Party A to take immediate remedial measure of damages and incidents of the works or the installation, maintenance and operation of a third Party to impede or harm the maintenance and operation...(wires, cables, pipes) and its equipment.

b) Suspending and terminating the implementation of contract as specified in Article 9 of this Contract.

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d) Other powers ⁽¹⁹⁾…

Article 9. Suspension and terminiation of contract

1. Suspension of contract

a) Cases of suspension of contract: ⁽²⁰⁾ …

b) Principle of settlement upon suspension of contract: ⁽²¹⁾ …

c) Regulations on order and procedures for suspension of contract: ⁽²¹⁾ …

2. Termination of contract

a) Cases of termination of contract: Upon expiration of lease or as agreed by both parties on the termination before expiration and other cases prescribed by law.

b) Principle of settlement upon termination of contract: ⁽²¹⁾ …

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Article 10. Dispute and settlement of dispute

1. Principle of settlement upon occurrence of dispute: ⁽²¹⁾ …

2. Court to settle dispute: As prescribed by law.

Article 11. Contract insurance: When the contract is effective, each party is responsible for signing contract of insurance of  person and property, civil liability as prescribed.

Article 12. Force majeur: ⁽²²⁾ …

Article 13. Contract liquidation

The Parties shall execute contract liquidation within....days but not in excess of 90 days after the Parties have completed their obligations of the contract or when the contract is terminated.

Article 14. Contract validity

The contract is valid on...... ⁽²³⁾ until both Parties liquidate the contract as prescribed.

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Article 16. General term

1. Both Parties have committed to seriously perform all contents of this Contract.

2. Other terms and conditions not specified in this Contract shall be complied with current regulations by both Parties.

3. This Contract is made into......copies with the same validity, each Party shall keep .....copy for performance.

          Party A’s representative                                           Party B’s representative

            (Signature and seal)                                                      (Signature and seal)

Note:

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Note: The time for contract commitment may be the time when the technical works of common use are in the stage of preparation for investment (development and approval of scheme, capital mobilization....), stage of works construction (asking for construction permit, site clearance, performance of works construction...), or the works are completed partially or entirely and put into use (works are being used, upgraded, renewed or newly built....) shall be an important factor governing a number of contents of agreement on several terms of the contract.

⁽²⁾       Name of one or many works in an area, for example: “The works of cable, sewer, trench and technical tunnel in the area of Thanh Xuan district (with attached list)."

⁽³⁾       Place for writing the name of street, ward (commune), district, city (province) where the works are located. In case the works go through a lot of lines, specify the name of ward (commune), district where the works are located.

⁽⁴⁾       Other grounds, for example: "... Based on the document of Thanh Xuan District People's Committee on management and maintenance of sewage system, cable tank, trench and technical tunnel in the area."

⁽⁵⁾       May be translated into another language with the Vietnamese contract as the original

⁽⁶⁾       For example: “ For installation, operation, maintenance of wires and equipment of the project of infrastructure improvement and telecommunication service upgrade in Thanh Xuan district.

In case the installation of wire and pipe may be conducted during the works construction: “ Party A has committed to finish the works on date.....month.....year....and agreed to lease Party B....for installation and operation, maintenance of cable...”

⁽⁷⁾       Determining tasks done by Party B and Party A and coordinated by the parties (third party). For example: Making a list in which Party A may perform maintenance of wires and pipes (industrial sanitation, establishment and maintainance of identification signs...) and Party B’s specialized work when Paty A is capable of performance, or the parties may coordinate during the installation or dismantlement in order to resolve the subsidence or incidents of the works....

⁽⁸⁾       The lease term shall be agreed by both parties.

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⁽¹⁰⁾     The end date of lease term shall be agreed by both parties including the installation time, lease term and dismantlement time.

⁽¹¹⁾     As agreed on the grounds of current regulations.

⁽¹²⁾     Value of the contract as agreed on the basis of guidance of the Ministry of Finance.

⁽¹³⁾     Advanced funding: As agreed with or without advance for completed or unfinished works.

⁽¹⁴⁾     Method of payment in cash or transfer in VND. In case of payment in foreign currency, specify the exchange rate in VND announced by the State Bank of Vietnam at the time of payment.

⁽¹⁵⁾     Documents and payment term: Both parties shall agreed on the basis of the contents of the list and the characteristics of each type of lines, pipes and equipment installed in each type of works of technical infrastructure of common use and process of management and operation, maintenance and contract value. For example: the payment documents include the written request for payment, payment term of 06 months or escrow agreement through automatic payment via bank (when the bank does not receive letter of payment refusal upon maturity).

⁽¹⁶⁾     As agreed by both parties, for example “ Adjustment upon 10% of workload generated and 15% difference of unit price of raw materials... " or by current regulations

⁽¹⁷⁾     Applicable for particular works or with limited competition market, exclusive properties for lease or exclusive lease or the lessor and lessee are interdependent and irreplaceable.

⁽¹⁸⁾     On the basis of provisions in the Civil Code the parties shall agree upon their obligations and other rights.

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⁽²⁰⁾     As agreed on the basis of general and particular characteristics of each type of commonly used works, types of wires, cables or pipes installed and local customs and culture (see Article 424 and 491 of the Civil Code).

⁽²¹⁾     Beyond the parties’ control such as: Natural disasters (floods, earthquakes, tsunamis ...), war, fire ... and according to current regulations.

⁽²²⁾     As agreed by both parties, for example: “ After 10 days from the date of contract signing or from the date Party A hands over the site to Party B for installation...”

CONTRACT FORM OF MANAGEMENT AND OPERATION OF TECHNICAL INFRASTRUCTURE WORKS COMMONLY USED

(Issued together with Circular No.: 03/2013/TT - BXD dated April 02, 2013 of the Minister of Construction)

Socialist Republic of Vietnam

Independence - Freedom - Happiness

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Place..., date … month … year…

CONTRACT OF MANAGEMENT AND OPERATION OF TECHNICAL INFRASTRUCTURE WORKS COMMONLY USED

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No. ⁽¹⁾ …/(Year)/(Contract symbol)

Works: ⁽²⁾ Name of technical infrastructure works of common use

Location: ⁽³⁾ Place or area where technical infrastructure works of common use

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Between

⁽⁴⁾ (Owner of works or owner’s representative)

And

⁽⁴⁾ (Unit of management and operation of technical infrastructure works of common use)

Index

Part I. Grounds for contract signing

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+ Article 1. Contract documents and language used;

+ Article 2. Contents of contract and workload;

+ Article 3. Time of performance and contract guarantee;

+ Article 4. Contract value, advance and method of payment;

+ Article 5. Documents and progress of payment;

+ Article 6. Modification of contract;

+ Article 7. Party A’s rights and obligations;

+ Article 8. Party B’s rights and obligations;

           + Article 9. Suspension and termination of contract;

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+ Article 11. Contract insurance;

+ Article 12. Force majeur;

+ Article 13. Contract liquidation;

+ Article 14. Contract validity;

+ Article 15. Other terms;

+ Article 16. General term

Part I. Grounds for contract signing

- Civil Code No. 33/2005/QH11 dated June 14, 2005;;

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- Law amending and supplementing a number of articles of the laws relating to capital construction No.38/2009/QH12 dated June 19, 2009;

- Decree No. 72/2012/ND-CP dated September 24, 2012 of the Government on management and common use of technical infrastructure works;

- Circular No  / 2013/TT-BXD dated  /   / 2013 by the Ministry of Construction issuing contract form of technical infrastructure works commonly used and contract of management and operation of technical infrastructure works commonly used

- Based on ⁽⁵⁾ ...

Part II. Terms and conditions of contract

Today, at.......(place), we consist of:

Party A: Owner (or representative authorized by owner)

- Transaction name ……..

- Representative (or authorized representative) is:……….. Position:……………..

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- Tel No.:………                    Fax:………       E-mail:…………………

- A/C No.: ………….             At:…..                           

- Unit code (Tax code): ………..

Party B: Operation management unit

- Transaction name ……..

- Representative (or authorized representative) is:……….. Position:……………..

- Address:……………

- Tel No.:………                    Fax:………       E-mail:…………………

- A/C No.: ………….             At:…..                           

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Both parties have agreed as follows:

Article 1. Contract documents and language used

1. Contract documents include the grounds for contract signing, terms and conditions of this contract and documents attached to the contract as follows:

            a) Diagram (drawing), location, volume of technical infrastructure works of common use and diagram of design and installation of wires, cables and pipes into the works (if any);

            b) Documents of current condition of wires, cable, pipes and equipment installed in the technical infrastructure works of common use

            c) Power-of-atorney for contract signing No.......dated........(in case of authorization by owner);

            d) Contract annex;

            e) Other relevant documents.

2. Language of this Contract is presented in Vietnamese⁽⁶⁾.

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Party A  assigns and Party B agrees to manage the operation of the works⁽²⁾ .., the contents include the main tasks as follows:

1. Operation and maintenance of works.

a) Formulation of operation management documents as prescribed;

b) Formulation and implementation of maintenance plan, orders (if any) according to the instructions of the designers, procedures, and regulations issued by competent state agencies;

c) Development and issuance of management and operation procedures for each works;

d) Other tasks…

2. Safety and protection of assets.

a) Performing safety assurance for people and assets, environmental sanitation, fire prevention and fighting as prescribed;

b) Making list of assets assigned for management;

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d) Tổ chức định kỳ kiểm tra, đánh giá chất lượng tài sản Periodically inspecting and assessing asset quality;

e) Making periodic reports on the condition of assets assigned for management.

3. Signing and executing the terms of contract with the units and individuals that have a need for commonly using the works (installation of wires, cables and pipes...) under authorization.

a) Scope and content of tasks authorized;

b) Regulation on the proceed from the contract under authorization.

4. Other tasks

Article 3. Time of performance and contract guarantee

1. Starting day of operation management activities:......days after the date ⁽⁷⁾...

2. Asset hand-over time: From date ... to date ...

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4. Contract guarantee (if any): ⁽⁹⁾…

Article 4. Contract value, advance and method of payment

1. Contract value: ⁽¹⁰⁾ ...                        In words:...

2. Advanced funding: ⁽¹¹⁾ ...                   In words:...

3. Advance return: ⁽¹²⁾ ...

4. Method of payment: ⁽¹³⁾ ...

Article 5. Documents and term of payment

1. Documents of payment:

a) Certificate of acceptance of completed work;

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c) Other relevant documents.

2. Term of payment: ⁽¹⁴⁾ ...

Article 6. Modification of contract

1. Cases of modification of contract: Change of legal grounds, technical regulations and standards, scope of work and polices directly affecting the change of conditions for contract performance

           2. Principle of modification of contract: ⁽¹⁵⁾ ...

Article 7. Party A’s rights and obligations

1. Party A’s rights:

a) Formulating and approving under the competence or sumitting the competent authorities for approval and notifying Party B of the yearly plan for improvement, upgrading and maintenance of the above works to ensure the common use as prescribed.

b) Making a list and assessing asset value and handing them over to Party B;

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d) Periodically inspecting and assessing Party B’s performance of contract once for ....month(s), collecting opinions and proposals of the units involved in common use of the above works and considering the settlement under competence;

e) Advancing and making timely payment to Party B;

g) Other responsiblities⁽¹⁶⁾ ...

2. Party A’s rights:

a) Refusing to certify the completion of payment upon unsatisfactory test under the regulation on acceptance;

b) Supsending or terminating the execution of contract as specified in Article 9 of this Contract.

c) Other powers ⁽¹⁶⁾ ...

Article 8. Party B’s rights and obligations

1. Party B’s obligations:

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b) Inspecting, monitoring and guiding on the requirements and notices for units and individuals to use upon starting installation of equipment of private ownership in the commonly used works until completing installation and putting into operation

c) Periodically inspecting specifically and in detail activities of the units involved in common use under the contract signed and making a written report to Party A;

d) Notifying in writing Party A for coordination upon any change of its representative, or occurrence of incidents sent to parties concerned.......days before taking the measures to strengthen, repair or upgrade works;

          e) Ensuring environmental sanitation and safety for people and assets of the parties involved in common use and placing responsible persons for coordination with Party A with the parties involved in common use in the inspection, monitoring as well as settlement of unexpted situations.

g) Making record and reporting the asset condition periodically;

h) Other responsibilities ⁽¹⁶⁾ ...

2. Party B’s rights:

a) Requiring Party A to make payment in due time as agreed in the signed contract.

b) Suspending or terminating the implementation of contract as specified in Article 9 of this contract.

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Article 9. Suspension and terminiation of contract

1. Suspension of contract

a) Cases of suspension of contract: When both parties have agreed without affecting a third party (unit involved in common use, for example: suspension of contract as required by the competent agencies);

b) Principle of settlement upon suspension of contract: ⁽¹⁷⁾ ...

c) Regulations on order and procedures for suspension of contract: ⁽¹⁷⁾ ...

2. Termination of contract

a) Cases of termination of contract: Upon expiration of work operation and management assignment or as agreed by both parties on termination ahead of time and other cases as prescribed by law;

b) Principle of settlement upon termination of contract: ⁽¹⁷⁾ ...

c) Regulations on order and procedures for termination of contract: ⁽¹⁷⁾ ...

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1. Principle of settlement upon occurrence of dispute: ⁽¹⁷⁾ ...

2. Court to settle dispute: As prescribed by law

Article 11. Contract insurance: When the contract is effective, each party is responsible for signing contract of insurance of  person and property, civil liability as prescribed.

Article 12. Force majeure: ⁽¹⁸⁾ ...

Article 13. Contract liquidation

The Parties shall execute contract liquidation within....days but not in excess of 90 days after the Parties have completed their obligations of the contract or when the contract is terminated.

Article 14. Contract validity

1. The contract is valid on...... ⁽¹⁹⁾ until both Parties liquidate the contract as prescribed.

Article 15. Other terms: Depending on specific condition of each locality, there may be other additional terms in the contract as agreed by the sponsors.

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1. Both Parties have committed to seriously perform all contents of this Contract.

2. Other terms and conditions not specified in this Contract shall be complied with current regulations by both Parties.

3. This Contract is made into......copies with the same validity, each Party shall keep .....copy for performance.

          Party A’s representative                                           Party B’s representative

            (Signature and seal)                                                      (Signature and seal)

Note:

⁽¹⁾       Number, document symbol including ordinal number, year of contract signing and abbreviations of unit (lessor) signing contract.

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⁽³⁾       Place for writing the name of street, ward (commune), district, city (province) where the works are located. In case the works go through a lot of lines, specify the name of ward (commune), district where the works are located.

⁽⁴⁾       Specify  the right name in the business license.

⁽⁵⁾       Other grounds, for example: "... Based on the document of Thanh Xuan District People's Committee on management and maintenance of sewage system, cable tank, trench and technical tunnel in the area."

⁽⁶⁾       May be translated into another language with the Vietnamese contract as the original

⁽⁷⁾       Installation may be performed while the commly used works are being built or one section has been completed as agreed by both parties. For example: “ After 05 days from the effective date of the contract, or from the date Party A hands over the site or Party A has completed 03 km of technical trench on the line”.

⁽⁸⁾       End date of work operation management period includes the time of asset handover, operation management period or any fixed date agreed by both parties.

⁽⁹⁾       As agreed on the grounds of current regulations.

⁽¹⁰⁾     For capital source of which the State makes estimate as prescribed. For personal capital source agreed on the basis of estimate or by order.

⁽¹¹⁾     For example: “ The latest time is within 10 days from the effective date of contract, Party A shall make an advance of 30% of contract value corresponding to the amount of.......(or making an advance to Party B an amount of....).

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⁽¹³⁾     Method of payment in cash or transfer in VND. In case of payment in foreign currency, specify the exchange rate in VND announced by the State Bank of Vietnam at the time of payment.

⁽¹⁴⁾     Payment term as agreed.

⁽¹⁵⁾     As agreed by both parties, for example “ Adjustment upon 10% of workload generated and 15% difference of unit price of raw materials... " or by current regulations

⁽¹⁶⁾     On the basis of provisions in the Civil Code the parties shall agree upon their obligations and other rights.

⁽¹⁷⁾     As agreed on the basis of general and particular characteristics of each type of commonlu-used works, types of wires, cables or pipes installed and local customs and culture (see Article 424 and 491 of the Civil Code).

⁽¹⁸⁾     Beyond the parties’ control such as: Natural disasters (floods, earthquakes, tsunamis ...), war, fire ... and according to current regulations.

⁽¹⁹⁾     As agreed by both parties, for example: “ After 10 days from the date of contract signing or from the date Party A hands over the site to Party B for installation...”

Thông tư 03/2013/TT-BXD về Mẫu hợp đồng sử dụng chung công trình hạ tầng kỹ thuật và hợp đồng quản lý vận hành công trình hạ tầng kỹ thuật sử dụng chung do Bộ trưởng Bộ Xây dựng ban hành