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Consultancy Agreement

Project Title

Concept Master Planning and Schematic Design Master Planning

Contract # CON-098-01

3-Oct-11

The Owner

Consultancy Agreement 3-Oct-11 Page 1 of 27

The Designer

Table of Contents
~AGREEMENT~
1. DESCRIPTION OF WORK 2. CONTRACT PRICE 3. 4. APPLICATION FOR PAYMENT DRAWINGS AND SPECIFICATIONS

3
3 3 4 6 7 7 7 9 9 10 10 11

5. REPRESENTATIVES 6. ASSIGNMENT 7. TERMINATION FOR CAUSE 8. FORCE MAJEURE 9. TIME IS OF THE ESSENCE 10. CHANGES and EXTRA WORK 11. STANDARD OF REASONABLE CARE/DESIGNER TEAM/REPRESENTATIONS AND WARRANTIES 12. INSURANCES

12.1 Designer shall obtain and maintain at its own cost and expense from a qualified insurance company licensed to do business in the state of Designers operation separate polices for (i) Commercial General Liability Insurance and (ii) standard Errors and Omissions Insurance, naming Owner as an additional insured. Such policies shall provide protection against any and all claims, demands and causes of action arising out of any defects or failure to perform, alleged or otherwise, of the activities contemplated hereunder. The amount of coverage for the Commercial General Liability Insurance policy shall be no less than USD $3,000,000 per occurrence and no less than USD $4,000,000 in the aggregate. The amount of coverage for the Errors and Omissions Insurance policy shall be no less than USD $1,000,000 per occurrence and no less than USD $1,000,000 in the aggregate. The policies shall provide for 30 business days notice to Owner from the insurer below in the event of any modification, cancellation or termination thereof. Designer agrees to furnish Owner with Certificates of Insurance evidencing the same prior to final execution of this Contract. 12 13. OBLIGATIONS OF OWNER 14. CONFIDENTIALITY 15. NOTICES 16. INTELLECTUAL PROPERTY 17. OMMISSIONS 18. CODES AND APPLICABLE LAWS 19. ARBITRATION 20. MEDIATION 21. MISCELLANEOUS PROVISIONS 22. REMEDIES 23. SURVIVAL OF OBLIGATIONS 24. ENTIRE AGREEMENT 1. SUMMARY OF ACTIVITIES AND DELIVERABLES 4. SUMMARY OF ACTIVITIES AND DELIVERABLES (continued) 4. SUMMARY OF ACTIVITIES AND DELIVERABLES (continued) The Owner Consultancy Agreement 3-Oct-11 Page 2 of 27 12 13 14 14 15 16 16 17 17 18 18 18 20 21 22 The Designer

6. SUMMARY OF ACTIVITIES AND DELIVERABLES (continued)

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EXHIBIT B - AREA OF WORK Image indicated below is for general reference only. 24 EXHIBIT D - PROJECT TRAVEL POLICY

24 24

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~AGREEMENT~
WHEREAS, Owner agrees that any scope of work beyond that described in this Contract or Exhibits hereto will be the subject of future revisions or Change Orders to the language and intent of this Contract in accordance with the terms herein; and, WHEREAS, Owner and Designer agree to be bound by the applicable terms of the language contained in this Contract;

WITNESSETH
In consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. DESCRIPTION OF WORK

1.1

Designer shall design, provide, and/or complete in a professional and substantial manner, all of the Work in accordance with the following Exhibits: Exhibit Exhibit Exhibit Exhibit Exhibit A Scope of Work B Area of Work C Payment Schedule D Project Travel Policy E Preliminary Project Schedule CONTRACT PRICE

2.

2.1

Designer shall perform all of the Work as described herein for a flat sum of USD $ (hereinafter referred to as the Contract Price), subject only to adjustment for Change Orders or early termination. This amount shall include the cost of labor incurred by the Designer in completing the Work and all other costs and expenses except for the following: the cost of travel as defined in Exhibit D Project Travel Policy, any locally required insurance and permits obtained for purposes of the Project, bank transfer fees, and any applicable Vietnamese taxes, all of which shall be separately invoiced and paid by Owner.
Consultancy Agreement 3-Oct-11 Page 3 of 27 The Designer

The Owner

3.

APPLICATION FOR PAYMENT 3.1 Provided Designer has met each applicable milestone, payment of the installment of the Contract Price shall be made in accordance with Exhibit C Payment Schedule, attached hereto and incorporated herein by this reference. 3.2 Upon the execution of this Contract the Designer shall submit an invoice for the Project Deposit. The Owner agrees that this Contract will not become effective until such invoice is paid to the Designer. 3.3 At the end of each month, the Designer may by the delivery of an invoice to the Owner seek payment from the Owner in respect of the Work or any part thereof completed within the particular month. 3.4 The invoice shall state the basis of the calculation of the amounts claimed including as a minimum:(a) (b) the milestones completed during the month; and details of any Change Orders claimed.

3.5 In addition to the Contract Price, the Designer shall be reimbursed for travel expenses as described in Exhibit D Project Travel Policy hereto, in each case as incurred in performing the Work herein. 3.6 All travel expenses as contemplated herein shall be invoiced by the Designer monthly and separately from the invoice submitted pursuant to Clause 3.3 herein with supporting receipts and/or documents. All travel expense invoices shall be settled by the Owner in the same currency as paid unless agreed otherwise by the Owner. 3.7 The Owner shall, within ten (10) days after receipt of a claim for payment in the form of an invoice issue a payment for the amount specified in the invoice provided that the Designer has performed the Work in accordance with the terms hereof.

The Owner

Consultancy Agreement 3-Oct-11 Page 4 of 27

The Designer

3.8 to: 3.9 transferred to:

All invoices shall be addressed

All payments shall be wire

3.10 Owner is to confirm all wire transfers to Designers office by fax notice on the day of transfer (e.g., copy of SWIFT order), and payment shall be deemed to have been made upon Designers receipt of funds. Upon confirmation of receipt of funds, the Designer shall fax a confirmation of receipt of funds notice to the Owner. 3.11 The Parties agree to use Hong Kong Dollar as an optional currency of the Contract. Accordingly, monetary amounts of the Contract, including Contract price, professional fees or the others, which were agreed in United States Dollar, can be changed or converted to Hong Kong Dollar, and vice versa. The change or conversion from this United States Dollar to Hong Kong Dollar and vice versa shall be made upon the prior agreement in writing by the Parties and at the exchange rate published on the website http://www.xe.com at the time of payment. 3.12 Owner agrees and acknowledges that any deficiencies in the Contract payments made by Owner to Designer that result from the change or conversion from United States Dollar to a different currency shall be reimbursed by the Owner to the Designer within 30 days of Owner receiving an invoice from Designer for the deficiency accompanied by the confirmation of the rate of the receiving bank at the time the payment is received by Designer. 3.13 The Designer herein designates his bank account for payment in Hong Kong Dollar as follow: Accordingly, all payment from Owner to Designer in Hong Kong Dollar (if any) shall be made to the aforesaid bank account. 3.14 In the event the Owner delays payment for any invoice submitted by the Designer, Designer shall have the option to stop work until such a time as Designer receives payment from Owner for such invoice. Upon receipt of the said payment the schedule shall be adjusted for any delays in payment (1 day longer for the Designer to meet the next milestone delivery for each day the payment is delayed). Payment delays beyond forty-five (45) days shall be considered a breach of a material covenant; in such an instance, Designer shall not be obligated to recommence Work and shall have the option to terminate the contract in accordance with Clause 7 herein. 3.15 a 3.00% per annum penalty. Past due payment are subject to

The Owner

Consultancy Agreement 3-Oct-11 Page 5 of 27

The Designer

4.

DRAWINGS AND SPECIFICATIONS 4.1 The performance, quality, materials, acceptability, fitness and progress of the finished work shall be in conformance with attached Exhibit A Scope of Work and subject to Owners approval, (such approval shall not be unreasonably withheld), provided that, in the event that such condition is the result of causes which are outside of the Designers Scope of Work, the costs associated with any necessary corrections shall be the subject of a Change Order, to be generated in a timely manner. 4.2 All the Work will be based on International Codes in compliance with the requirements and relevant regulations including Vietnamese Governments Codes. 4.3 Owner Approval

4.3.1 Approvable Item is defined as each deliverable, Design Document (as defined below), document, material or item required to be submitted by Designer to Owner for approval pursuant to the terms and conditions of this Contract. 4.3.2 Designer shall submit each Approvable Item to Owner, in writing, for Owner's approval at the address set forth in 5.2 below. Owner shall approve or disapprove each Approvable Item in writing within ten (10) business days of receipt. Owner shall not unreasonably withhold its approval of each Approvable item. If any Approvable Item is disapproved, Owner shall inform Designer in writing ("Disapproval Notice"), stating: (i) the reason(s) for Owner's disapproval; and (ii) any modifications which would render the Approvable Item acceptable to Owner. Items deemed to be a change in scope shall be subject to a Change Order to be issued by the Owner. Upon receipt of such Disapproval Notice, Designer shall make changes to such Approvable Items, including such changes to each Approval Item as are required to correct any deficiencies set forth in the Disapproval Notice, (provided such changes are not a change to the scope of work per this Contract), at no additional costs to Owner, and Designer shall thereafter resubmit such Approvable Item to Owner. The foregoing process will be repeated with each Approvable Item until Owner approves the Approvable Item. 4.3.3 In any case in which Owner fails to provide Designer with an approval or Disapproval Notice for an Approvable Item within the ten (10) business day period, Owner approval shall be deemed to have occurred.

The Owner

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The Designer

5.
5.1

REPRESENTATIVES

Designers representative shall be...; provided however, that Designer may, without liability, unilaterally amend this Article from time to time by designating a different person or organization to act as its representative by advising Owner, in writing, at which time the person or organization so designated shall be Designers representative for purposes of this Contract. Owners Representative shall be....; provided however, that Owner may, without liability, unilaterally amend this Article from time to time by designating a different person or organization to act as its representative by advising Designer, in writing, at which time the person or organization so designated shall be Owners representative for purposes of this Contract. 6. ASSIGNMENT

5.2

6.1

The interests, rights, powers, duties, and liabilities of the parties hereto shall be binding upon and shall endure to the benefit of the respective successors and assigns of the parties. The Owner shall have the right to assign all of its rights powers, duties, and liabilities hereunder to any person or entity providing the Designer has provided written approval of any proposed assignment. The Designer shall not unreasonably withhold or delay such approval. Notwithstanding any approved assignment, Owner shall at all times remain jointly and severally liable with any assignee for any of its obligations hereunder which Owner assigns or delegates and Owner shall include same in any assignment to Owners assignees, and to execute whatever documentation may reasonably be required to effect any assignment of this Contract. Designer may only assign this Contract or any right arising hereunder including any guaranties or warranties of workmanship or materials subject to Owners prior written approval of such assignment, such approval shall not be unreasonably withheld or delayed. Notwithstanding any approved assignment, Designer shall at all times remain jointly and severally liable for any of its obligations hereunder which Designer assigns or delegates and Designer shall and include same in any assignment to Designers assignees, and to execute whatever documentation may reasonably be required to effect any assignment of this Contract. 7. TERMINATION FOR CAUSE

6.2

7.1

This Contract may be terminated:

a. i.

by either party (Non-Defaulting Party) at any time for: a breach of a material covenant (including but not limited to failure to make payment or breach of confidentiality undertaking according to the terms hereof) by the other party (Defaulting Party); or
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The Owner

ii.

a failure to perform a material obligation of this Contract by the Defaulting Party; provided that:

i.

the Non-Defaulting Party has provided the Defaulting Party a written notice of its intention to exercise its right of termination and specifically notifying the Defaulting Party of its basis for termination and that the Defaulting Party does not within fourteen (14) days from the receipt of such notice remedy the breach, or such reasonable additional time as may necessary if the breach cannot reasonably be remedied within the said fourteen (14) days; the Non-Defaulting Party has initiated dispute resolution as provided by this Contract; the arbitrator(s) rule that the Defaulting Party is in breach of this Contract and that the NonDefaulting Party is entitled to terminate this Contract due to such breach;

ii. iii.

b.

in the event that the Defaulting Party goes into liquidation (except for the purpose of a bona fide reconstruction or amalgamation) or bankruptcy or it shall become insolvent or enter into any composition or scheme of arrangement with its creditors, the Non-Defaulting Party may, by giving written notice, terminate the Contract with immediate effect; and

c.
7.2

pursuant to the Force Majeure provisions of this Contract in Section 8.1 below.

In the event of such termination 7.2.1 The Designer shall be paid for the Work or any part thereof performed and not yet paid by the Owner incurred prior to the effective date of termination. Where the termination is not due to the default of the Designer, a reasonable amount to include all of the Designers and its Sub-Consultants out-of-pocket expenses properly incurred in the course of the Work arising out of irrevocable commitments made up to the date of termination plus their respective projected residual profit for the Project as at the time of termination as agreed with the Owner or failing such agreement as shall be determined in accordance with Section 20 or, if necessary, Section 19 herein, or; 7.2.2 The Owner, without limitation of any other remedies hereunder or in law or equity, Owner shall have the right to deduct from such payments all amounts representing damages incurred by Owner due to Designers breach of the Contract as shall be determined in accordance with Section 20 or, if necessary, Section 19 herein.

The Owner

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The Designer

7.3

Any terms or conditions of this Contract which are capable of having effect after the termination or expiration of this Contract shall remain in full force and effect following the termination of this Contract. The termination of this Contract shall be without prejudice to all rights and liabilities of the parties accrued up to the time of termination. 8. FORCE MAJEURE

7.4

8.1

Neither Party shall be liable for any failure to perform its duties under this Contract where such failure shall be caused by an event of Force Majeure. Should the performance by either Party of its obligations or any part thereof under this Contract be prevented or adversely affected by Force Majeure, the Party suffering from the inability to perform (the Affected Party) shall forthwith give notice in writing to the other Party (the Non-Affected Party). Should the performance by the Affected Party of its obligations or any part thereof under this Contract be prevented or adversely affected by Force Majeure for a period of not less than sixty (60) consecutive days such period, measured from the date of commencement of the event of Force Majeure, the Non-Affected Party shall be entitled at the expiry of such period of sixty (60) days to give the Affected Party not less than seven (7) days written notice terminating this Contract. The Affected Party shall use all reasonable good faith efforts to mitigate any delays caused by any event of Force Majeure, and in the event any such event of Force Majeure is covered by any of the Affected Partys insurance policy, the Affected Party shall be responsible for using best efforts to mitigate any delays caused by such covered event of Force Majeure. The term Force Majeure will be applicable to the following occurrences which occurs in either the United States or Vietnam: war (whether declared or not), invasion, acts of terrorism, civil war, rebellion, revolution, insurrection or military or usurped power, riot, commotion or disorder otherwise than amongst the employees of the Designer, earthquake, tidal wave and/or tsunami, typhoon, flood, fire, tempest, hurricane, other natural disasters, epidemics or other natural disaster or other similar calamity beyond the control of the Parties which substantially or wholly prevents or materially and adversely affects the performance of the Services under this Contract and/or the Project or material part thereof. 9. TIME IS OF THE ESSENCE

9.1

The Designer shall perform the Work within the respective milestone dates for the different stages of the Work set out in the Project Schedule contained in Exhibit G hereto as amended or revised from time to time pursuant to Clause 9.2, Clause 9.3 and Clause 9.4 hereunder. The Owner acknowledges that the first date in the Project Schedule contained in Exhibit G hereto shall be adjusted to the date this Contract is executed and received by both Parties and the Project Deposit is received by the Designer. All subsequent milestones shall be adjusted later for each day the first date is adjusted in this Clause 9.2 herein.
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9.2

The Owner

9.3

The Parties acknowledge that if necessary under the relevant circumstances, the Designer may by written notice to the Owner seeking its prior written consent (such consent not to be unreasonably withheld or delayed by the Owner) to adjust the then prevailing Project Schedule in the light of the actual progress of the Work and or the development of other part(s) of the Project and when considering such request from the Designer, the Owner shall act in good faith taking into account the discussion with and advice from the Designer and/or other third parties connected to the Project. The Owner acknowledges that all delays in making payments to the Designer shall result in an adjustment to the Project Schedule contained in Exhibit G herein. Upon a payment being delayed, the Designer shall have the option to stop Work until such a payment is received by the Designer. For each day a payment is delayed, all milestones that follow the delayed payment shall be adjusted one day later for each and every day the payment is delayed. 10. CHANGES and EXTRA WORK

9.4

10.1

Owner has the right to request changes to the Work without affecting the validity of any of the terms hereof, through the issuance of Change Orders. No changes or substitution in the work shall be allowed nor made by Designer nor required by Owner without prior receipt of a written Change Order to this Contract signed by both the Owner and the Designer. Upon identification of a potential change to the Work, whether identified by Designer or Owner, the identifying party shall notify the other and provide a full explanation or rationale for such a change. The Designer shall submit a proposed price to perform such a change in the Work or submit a statement that the change will be performed at no change to the Contract Price. The Designers proposal must clearly describe in detail all of the extra work to be performed, a schedule for performance of the extra work, and pricing detail. In no event shall Designer have the right to suspend any Work while awaiting Owners reply with respect to any Change Order. Owner will consider and decide in a timely manner regarding any proposed Change Order to the Contract in a timely manner. Upon receipt of the fully executed Change Order, Designer shall proceed with and complete the extra Work in accordance with the schedule established in the Change Order, and if provided for in the approved Change Order, adjusted for any extra time it takes to execute the Change Order.

10.2

10.3

11.
11.1

STANDARD OF REASONABLE CARE/DESIGNER TEAM/REPRESENTATIONS AND WARRANTIES

Designer shall perform its Work in a first class manner to be expected of a first class vendor undertaking services similar to the Work in connection with projects of similar size, scope and complexity using appropriately qualified and experienced personnel and in this respect, at all times delegate a team of experienced and qualified staff to perform the Work.
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The Owner

11.1.1The Designer shall adjust its design content and/or the Design Documents in a timely fashion with a view to conforming to the relevant life safety, local building and/or governmental requirements in Vietnam as shall be directed by the Owner. 11.1.2The Designer shall provide design services in accordance with internationally recognised codes, standards and recommended practices (including provision for disabled persons), except where in conflict with mandatory local and statutory requirements, in which cases local regulations shall take precedence. Owner shall be responsible for making Designer aware of such conflicts and directing related adjustments. 11.1.3To the extent possible, the Designer shall maximize the use of local products and materials in the design and at the same time ensure that state-of-the-art concepts and technologies are applied to the design. Emphasis shall be placed on innovative design solutions and energy conservation measures and techniques. 11.1.4The Designer shall liaise closely and coordinate with other parties that may be employed by the Owner to provide services. 11.1.5The Designer shall advise on a regular basis on the status of the design programme and / or any other pertinent issues that effect the Project and the completion of deliverables included in this Contract. 11.1.7Designer represents, warrants and covenants as follows: (i) it has the full corporate right, power and authority to enter into this Contract and to perform the obligations required under this Contract, (ii) the execution of this Contract and performance of its obligations under this Contract do not and shall not violate any other agreement to which it is a party, (iii) this Contract constitutes the legal, valid and binding obligation of such Party when executed and delivered; (iv) any and all activities it undertakes in connection with this Contract shall be performed in compliance with all applicable laws, rules and regulations; and (v) the Work shall not violate any applicable laws, rules or regulations or infringe any right of any person or entity, including, without limitation, any rights under patent, copyright, trademark, trade secret etc. 12. INSURANCES

The Owner

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The Designer

12.1 Designer shall obtain and maintain at its own cost and expense from a qualified insurance company licensed to do business in the state of Designers operation separate polices for (i) Commercial General Liability Insurance and (ii) standard Errors and Omissions Insurance, naming Owner as an additional insured. Such policies shall provide protection against any and all claims, demands and causes of action arising out of any defects or failure to perform, alleged or otherwise, of the activities contemplated hereunder. The amount of coverage for the Commercial General Liability Insurance policy shall be no less than USD $3,000,000 per occurrence and no less than USD $4,000,000 in the aggregate. The amount of coverage for the Errors and Omissions Insurance policy shall be no less than USD $1,000,000 per occurrence and no less than USD $1,000,000 in the aggregate. The policies shall provide for 30 business days notice to Owner from the insurer below in the event of any modification, cancellation or termination thereof. Designer agrees to furnish Owner with Certificates of Insurance evidencing the same prior to final execution of this Contract.

13.
13.1

OBLIGATIONS OF OWNER

Owner shall be responsible for confirming the direction for the Designers Work, the review of the Design Documents (herein the Design Documents defined as all documents, including but not limited to plans, designs, graphics, drawings, sketches, specifications, schedules, reports, calculations, patterns, software [whether in object or source code], bills of quantities, cost and other estimates, models, algorithms, written instruction manuals, works and other materials in whatever form [whether in electronic or otherwise] relating to the design and/or development of the Project or any part thereof) prepared by the Designer and payment of the relevant fees and expenses stated herein to the Designer in accordance with the terms of this Contract. Nothing contained in this Clause 13.1 shall modify, reduce or absolve Designer of any of its obligations under this Contract, and Designer shall not have the right to alter any milestone or otherwise alter the schedule of the Work due to Owners failure to perform any of the obligations in this Clause 13.1 without first giving Owner three (3) business days to meet such obligation after its receipt of written notice from Designer in connection therewith. Owner shall promptly provide Designer with all documents and information that may affect the Work including reasonably accurate details, authorizations, and drawings of the Project property (geological testing report, site planning, co-ownership or subdivision regulations, boundary details, any preliminary authorizations necessary for the undertaking of all or part of the construction work [water bylaws, etc.], existing technical infrastructure and environment map, rate 1/500, particular rules and regulations specific to the Project of which the Owner has knowledge, detailed site survey, existing buildings survey, architectural, engineering, site services and mechanical/electrical information, along with any other studies that may exist regarding the potential uses of the property), and the written requirements of the Owner (budgetary limitations, site requirements, phasing, interfacing details, future expansions, etc.). Owner is also to
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13.2

The Owner

provide descriptive intent of the desired process, procedure and sequence of the environment, and sufficient business model information, allowing for analysis by Designer and facilitation of design parameter development. In the event Designer deems any of the materials Owner provides pursuant to this Clause 13.2 insufficient or incomplete, or in the event Owner fails to deliver any such materials, Designer shall promptly notify Owner, with specificity, of such deficiencies. 13.3 Owner shall, at its cost, engage the relevant Professionals (herein the Professionals defined as all such professionals, advisers, consultants and/or specialists other than the Designer [and any successors and replacement of them] as may be from time to time engaged by the Owner in relation to the development of the Project or any part thereof). Owner shall respond to the Design Documents submitted whether by the Designer and/or the Professionals within a reasonable time frame. The Owner and its representatives shall use reasonable endeavors to render decisions within reasonable time pertaining to all information, comments and/or Design Documents submitted by the Designer in order to avoid delay in the sequential progress of the Designers Work in accordance with the Milestone Schedule. Owner shall allow Designer and Designers sub-vendors to include representations of the design of the Project, including articles and photographs of the Project, among publications and Designers and Designers sub-vendors promotional and professional materials. Such material shall not include Owners confidential or proprietary information, if the Owner has previously advised Designer in writing of specific information consider by the Owner to be confidential. Whenever possible, the Owner will consult with Designer concerning all promotional materials pertaining to the Project prior to the release of such materials. 14. CONFIDENTIALITY

13.4

13.5

14.1

The Owner agrees to keep the processes, methods and designs used or applied in the Work by the Designer confidential. The Owner shall ensure its employees and sub-consultant(s), if any, comply with the provisions of this requirement. The Designer agrees to keep any information whatsoever relating to the Project, the Owner, the Owners business operations, financial statements, intellectual property, customer lists, trade secrets, trademarks, logos, and other intellectual property confidential unless the Designer obtains the prior consent of the Owner. The Designer may disclose such information to its affiliates, employees and vendors only on a need-to-know basis and will have executed or shall execute appropriate written agreements with its affiliates, employees and vendors sufficient to enable it to enforce all the provisions of this Contract. The above restrictions in Clauses 14.1 and 14.2 shall not however apply to:
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14.2

14.3
The Owner

14.3.1disclosures required by law, statutory bodies or regulatory authorities; 14.3.2disclosures to its employees and/or sub-consultant(s) who have a need to know and only to the extent necessary for each of them to perform his/her duties; or 14.3.3disclosures with the prior written approval from the Designer or Owner, 14.4 The Owner/Designer shall ensure their employees and sub-consultant(s), if any, comply with the provisions of this requirement. 15. 15.1 NOTICES

Notices required or permitted to be given hereunder shall be in writing, may be delivered personally to an office or designated representative of the party to be served or sent by first class mail, facsimile or courier service and shall be deemed given when received by the addressee. Notices shall be addressed as follows: If to Owner: : If to Designer: Or to such other address as either party may direct by written notice given to the other as hereinabove provided.

15.2

Notwithstanding the foregoing, any notice sent to the last designated address of the party to whom a notice may be or is required to be delivered hereunder shall not be deemed ineffective if actual delivery cannot be made due to a change of address of the party to whom the notice is directed or the failure or refusal of such party to accept delivery of the notice after reasonable efforts to locate such new address. 16. INTELLECTUAL PROPERTY

16.1

Any and all intellectual property owned by the parties (Existing IP) before the execution of this Agreement will remain the property of such respective parties as if such Agreement did not exist. For the avoidance of doubt, the non-originating party may only use said intellectual property outside of the final agreement with the express written permission of the originating party. Any designs prepared by the Designer specifically for this Project which shall be unique to this Project (herein after referred to as the Results and Proceeds) shall remain the property of Designer until all payments for the Work are paid in full by Owner to Designer. Upon full payment for the Work, the Results and Proceeds shall be deemed work made for hire on behalf of Owner. Accordingly, Owner shall become the sole owner of all right, title and interest in such Results and Proceeds.
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16.2

The Owner

17.

OMMISSIONS

The following components are not included in the Scope of Work: a) Government / Building Regulation / Planning Approvals - The local project team would be responsible for obtaining all local government consents, approvals to meet planning, construction and all other requirements. Production of Detailed Specification, Bills of Quantities and other information to be provided by the local design, consultant, and construction team. Interior Design Site Management The description of requirements regarding use, siting criteria, parking, signage, landscaping and other key elements of quality site management, as well as application and procedural processes utilized to obtain permits and enforce the code shall be the responsibility of the local project team. Design, Schematic Design of, Design Development, Construction Documentation, Construction Administration, Project Management, Attraction Design, Cost and Quantity Surveying, Operations and Facilities Management, Facility Logistics, Security, Engineering Reports, Engineering Drawings and total liability for Architecture, Structural, Mechanical and Electrical components, Building Services and all other aspects to be dealt with by the local project team. Interior design and design of specialty areas (kitchen, cable car equipment, lighting, etc.) of the cable car station building at the top of the mountain. Work applied to beyond four (4) unique unit layouts and beyond three (3) common area buildings. Procurement or installation of any system or hardware. Design of custom systems or fixtures and development of new technologies. Descriptions of the selection and quality of materials, finishes (internal and external), construction methods and systems to be implemented to be provided by the local design consultant, and construction team. Site Survey and Analysis, Zoning and Land-Use Study, Site Engineering Study, Regional and Regulatory Study The local project team shall be responsible for these reports. Fees charged by local authorities such construction license, environment, etc. Project models.
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b) c) d)

e)

f)

g)
h) i) j)

k)

l) m)
The Owner

as

permits,

fire

protection,

n) o)

Marketing documents requested by Owner. Revisions and changes to approved drawings. Any major changes in design or other works not outlined within this Contract shall be negotiated on a lump sum basis separately. The additional fees will be mutually agreed in advance. Travel, locally-required insurance and locally-levied taxes (including VAT). 18. CODES AND APPLICABLE LAWS

p)

q)

18.1

This Contract will be governed by and construed in accordance with the laws of Singapore, without regards to provisions pertaining to conflicts of laws. Each of the Parties hereto consents to jurisdiction in Singapore and acknowledges and agrees that any action (whether in court, arbitration, mediation or otherwise) shall be brought to Singapore International Arbitration Centre. If any legal action, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Contract, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. This Contract and Exhibits herein, as well as any subsequent Change Orders, may have both English and Vietnamese editions. Should there be any disputes about the Contract, the English edition shall control. Designer shall be solely responsible to ensure the Designers performance of its services hereunder shall not violate any regulations of Vietnam law and United States of America law (including, without limitation, any export controls or limitations and all employment and immigration laws). 19. ARBITRATION

18.2

18.3

19.1

Any dispute, claim or controversy arising out of or relating to this Contract or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Singapore in the English language before three arbitrators in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force which rules are deemed incorporated by reference to this Clause. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Allocation of Fees and Costs: The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys fees of the prevailing party.
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19.2

The Owner

20.

MEDIATION

The Parties agree that any and all disputes, claims or controversies arising out of or relating to this Contract shall be submitted to the Singapore Mediation Centre, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to the Singapore Mediation Centre, or its successor, for final and binding arbitration pursuant to the arbitration clause set forth above. Either Party may commence mediation by providing to the Singpore Mediation Centre and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties will cooperate with the Singapore Mediation Centre and with one another in selecting a mediator from the Singapore Mediation Centres panel of neutrals, and in scheduling the mediation proceedings. The Parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any Singapore Mediation Centres employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either Party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or 45 days after the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of arbitration if the parties so desire. Unless otherwise agreed by the Parties, the mediator shall be disqualified from serving as arbitrator in the case. The provisions of this Clause may be enforced by any Court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys fees, to be paid by the party against whom enforcement is ordered. 21. 21.1 21.2 MISCELLANEOUS PROVISIONS

The captions used herein are for convenience only and shall not be used in the interpretation of this Contract. If this Contract contains any provisions construed to be unenforceable or unlawful by a court of competent jurisdiction, the same shall be deemed modified to conform to applicable law, or if this would cause an illogical or unreasonable result, such provision shall be stricken from this Contract without affecting the binding force and effect of the Contract or any of its other provisions. Each Party agrees, at its own expense, at the request of the other Party, to do everything reasonably necessary to give effect to the Contract and to the transactions contemplated by it, including the execution of documents.

21.3

The Owner

Consultancy Agreement 3-Oct-11 Page 17 of 27

The Designer

22.

REMEDIES

22.1

The Designers responsibility for remedying any breach of its warranty obligations under this Agreement shall be to correct the defective Work, written notice of which shall have been promptly given by the Owner to the Designer during a period of one year from the day that such Work was completed. If errors, omissions, ambiguities, inconsistencies, inadequacies or other defects are found in the Designers Work, they shall be corrected at the Designers cost, notwithstanding any consent or approval under this Clause 22. 23. SURVIVAL OF OBLIGATIONS

22.2

23.1

The obligations of the Parties under this Contract, which by their nature would continue beyond the termination, cancellation or expiration of this Contract, including, by way of illustration only and not limitation, those in the Clause 14 Confidentiality, Clause 15 Notices, Clause 16 Intellectual Property, Clause 19 Arbitration, Clause 20 Mediation and Clause 22 Remedies shall survive termination, cancellation or expiration of this Contract. 24. ENTIRE AGREEMENT

24.1

This Contract supersedes any and all Agreements, either oral or written, between the parties hereto with respect to the rendering of services by Designer for Owner. Nothing in this Contract shall be deemed to create any association, partnership, joint venture or agency relationship between Owner and Designer. Designer understands that Designer shall perform Designers obligations hereunder as an independent contractor without the ability to bind Owner in any way. This Contract contains all the covenants and agreements between the Parties with respect to the rendering of the Work. Each Party to this Contract acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise not contained in this Contract shall be valid or binding. Any modifications of this Contract will be effective only if it is in writing and signed by both Parties. This Contract and Exhibits herein, as well as any subsequent Change Orders, are or may be written and executed in both Vietnamese and English. In the event of a discrepancy between the two versions, the English language version shall prevail.

24.2

24.3

24.4

The Owner

Consultancy Agreement 3-Oct-11 Page 18 of 27

The Designer

THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH AFFECTS YOUR LEGAL RIGHTS AND MAY BE ENFORCED BY THE PARTIES. IN WITNESS HEREOF, the Parties have caused this Contract to be duly executed on the day and year first above written.

Designer
Name: Title: Name: Title:

Owner

Compan y: Signatur e:

Company:

Signature:

Date:

Date:

The Owner

Consultancy Agreement 3-Oct-11 Page 19 of 27

The Designer

1. SUMMARY OF ACTIVITIES AND DELIVERABLES PHASE ACTIVITIES


Concept Master Plan Participate in a data inquiry session with Owner Conduct in-depth research and brainstorming sessions to generate a wide spectrum of concepts Visualize the development and conceive the overarching storyline Define the design approach for the entry to each zone Conceptualize the retail, restaurant and entertainment area development and zone relationships Conceptualize the initial facility layout for overall destination Establish a Project Development Plan that will fulfill established criteria of success Examine the proposed site layout of the Project with respect to operational processes and procedures, with a view to facilitate overall guest / vehicle flow and circulation Create a planning matrix or Planning Program to identify each area of development Calculate the spatial requirements for each area of development and their relationship with the other Identify areas such as deliveries, BOH services, restrooms, and maintenance Determine the facility needs required for appropriate phasing Develop a Master Plan, documenting a working proposal for the layout, configuration, and operating characteristics

DELIVERABLES
Area Schedule 50% Master Plan deliverables:

Conceptual written treatment of the overall venue Aerial perspectives Guest POVs Overall site sections Overall site plan Guest and vehicle flow Back-of-House access and flow Public facilities plan Recommended program mix Zone locations Planning Program 100% Master Plan deliverables:

Refined Conceptual written treatment of the overall venue Refined Zone Locations Guest flow diagrams Overall Site Plan 1:500 Project Development Plan

Color illustrations of key guest experiences Reference images, as needed Service area access routes and Back-of House plan plan Restroom and Service access Street lighting reference images

The Owner

Consultancy Agreement 3-Oct-11 Page 20 of 27

The Designer

4. SUMMARY OF ACTIVITIES AND DELIVERABLES (continued)


PHASE
Concept Master Plan Finalization

ACTIVITIES
Take the Master Plan and go step by step through the concept design to ensure full advantage is taken of every opportunity to enhance the guest experience Visualize the concept to demonstrate how the theme is applied to the faades and layout of the Project Focus on refining sections and plans by illustrating components of the preferred site development Show the critical configurations and layouts Confirm utility corridors and BOH operations Produce architectural studies to include footprints, sections and elevations, for the different building types Define the building type for a given parcel size along with the typical massing and parking configuration of the parcel Diagram unique mixed-use buildings with sections and parcel plans Prepare a Style Guide to provide guidance to the Architects and Builders with regards to the style architecture of the Master Plan Prepare a spreadsheet (the Development Code) showing CAD polygons at the parcel level Identify each parcel by number and detail the parent district and unit type(s) for each parcel Detail the unit counts and requisite space calculations by district and unit type Identify maximum building size, building height, and other conditions of development by parcel Tabulate population calculations, built-up area calculations and parking calculations for each land use Make closed polygons and number each polygon for all other areas (roads, landscape areas, etc.) and land uses (public buildings, amenity buildings, etc.) Ensure that the entire Master Plans area for each zone can be tallied in a summary sheet for each zone

DELIVERABLES

100% Concept Master Plan deliverables: Refined overall site sections and plans Critical configurations and layouts Style Guide Development Code Site Plan Diagram Zone-specific enlargements Birds-eye rendering of overall park Birds-eye rendering of each zone

Street-level perspective renderings of key views in each zone

Layouts, sections, and one to two (1-2) elevations of each building and identification of the public areas Definition of hardscape versus landscape Landscape reference images Rough topographical plan (not detailed) to be reviewed by local civil engineers communicating the creative intent Preliminary grading plan Electric data to include PDF and CAD formats, where applicable

The Owner

Consultancy Agreement 3-Oct-11 Page 21 of 27

The Designer

4. SUMMARY OF ACTIVITIES AND DELIVERABLES (continued) PHASE


Concept Master Plan Finalization (Continued)

ACTIVITIES
Ensure that the entire Master Plans area for each zone can be tallied in a summary sheet for each zone Incorporate design guidelines in a manner that is easy to understand and utilize Emphasize the use of tables, charts, graphics, examples, and other images to the fullest extent practical Provide one site plan diagram development for all guest areas (the Site Plan Diagram) to include key plan views of the entire site, as well as zonespecific enlargements of the plan as required (one for each zone) Deliver a birds-eye rendering of the overall Park, a birds-eye rendering of each zone, street-level perspective renderings of key views in each zone, one to two elevations of each building and identification of the public areas Define which areas are hardscape versus landscape and provide reference images of the envisioned foliage Locate the public open space reserved for recreational and buffer purposes Provide a rough topographical plan (not detailed) to be reviewed by local civil engineers Give careful consideration to guest flow, operations, retention and back-of-house space, all of which are integral to a good design Take into account and respect the fact that the intent of the Project is to create an enjoyable experience for its attendees

DELIVERABLES

Schematic Design Master Plan

Refine and detail the design Develop a concept area schedule showing all rooms and spaces Review the existing topographical survey for adequacy. If inadequate, submit a written brief and obtain proposals from specialists and recommend a specialist to be appointed Coordinate with Owner on a regular and frequent basis

50% Schematic Design Master Plan deliverables: High level area schedule

Key plan views and detailed enlargements of the plans as required (one for each zone) Site plan to show location of all buildings with co-ordinate (X,Y,Z), roads, parking, entrance, landscape elements Written brief on topographical survey, if necessary High level landscape site plan

The Owner

Consultancy Agreement 3-Oct-11 Page 22 of 27

The Designer

6. SUMMARY OF ACTIVITIES AND DELIVERABLES (continued) PHASE


Schematic Design Master Plan (Continued)

ACTIVITIES
Indicate overall dimensions of proposed new buildings, their relation to existing buildings, property lines, easements and roadways, indicate new elements and existing elements, and delineate project limit lines and preliminary spot level Provide floor plans indicating each room and space, including entrances, lobbies, corridors, stairs, basements, building cores, elevators, toilets, maintenance closets, storage rooms, mechanical/electrical/telecommunications shafts, utility plant and storage tanks, closets and equipment rooms, also indicating building elements, e.g. walls, columns, doors, windows, openings, major built-in equipment, a dimensioned grid, and room names Provide a general indication of the roof layout, locations of mechanical equipment areas, roof features, drains and slopes Show all elevations of the buildings, indicating grades, floor-to-floor dimensions, overall building heights and basic materials Provide sections, as necessary, to further explain design features Provide a parking plan indicating the total number of parking spaces, location, size and numbering Submit preliminary back of house layout showing prime equipment locations and storage requirements Refine the project program and refine the overall plan Develop color studies and incorporate reference imagery and color recommendations Prepare preliminary landscape documents which begin to describe the overall character, design intent and theme of the project All site amenities shall reflect the scale and relationship to the site Landscape concepts shall reflect tree groupings, shrub massing, ground covers and lawn areas Provide a quantified list of landscape and hardscape improvements and apply unit price based on quantity of area to develop a magnitude of cost

DELIVERABLES

90% Schematic Design Master Plan deliverables: Refined area schedule Site District Context Plan Floor plans Roof plan Overall Elevations and sections

Two (2) refined/updated exterior aerial perspectives Three (3) refined/updated guest pointof-view perspectives of exterior Parking plan Back of House study Refined project program Refined overall plan Color studies Refined overall landscape site plan Four (4) enlarged plans to cover the site

Eight (8) vignette plan areas of key design elements A palette of architectural amenities Photo references of landscape design intent

List of pools/ponds/water features/fountains and specifications/reference images Preliminary finishes reference images Electric data to include PDF and CAD formats, where applicable

100% Schematic Design Master Plan deliverables:

90% Schematic Design Master Plan Finalization deliverables with Owners comments integrated

The Owner

Consultancy Agreement 3-Oct-11 Page 23 of 27

The Designer

EXHIBIT B - AREA OF WORK


Image indicated below is for general reference only.

DEVELOPMEN T

SITE AREA Not to Exceed 60 hectares

KEY COMPONENTS

Water Park Hotel General community facilities F&B / Retail Venice Style F&B Aquarium Dolphin Show Water Show on the water Stage for Entertainment Wave Breaking Dyke for Yachts and Seaplanes Cable Car Station within the Water Park Cable Car Station at top of mountain, excluding interior design and any design for specialty areas (kitchen, cable car equipment, lighting, etc.) limited to: o Loading, Unloading & Storage (not exceed 500m) o Foyer/toilets (not to exceed 250m) o F&B outlet/kitchen/ back-of-house (not to exceed 500m) Note: Location of Cable Car Station at top of mountain has not been determined yet so it is not included on image below, but shall be included in the scope of work. Residential

Not to Exceed 223 hectares

The Owner

Consultancy Agreement 3-Oct-11 Page 24 of 27

The Designer

The Owner

Consultancy Agreement 3-Oct-11 Page 25 of 27

The Designer

EXHIBIT D - PROJECT TRAVEL POLICY 1.1


The Designer shall obtain the Owners pre-approval before incurring any expenses for travel, as detailed in paragraph 1.2 below, and for any other expenses not listed as travel expense but for which the Consultant intends to claim reimbursement. Travel Policy Details:

1.2

1.2.1 1.2.2 1.2.3 1.2.4

Reimbursed costs of air travel shall be limited to business class. Should the Designer wish to fly First Class, Owner shall reimburse the business class (or if business class is unavailable, the economy class) price equivalent. Accommodations at a 4-star or better hotel shall be reimbursed at cost. Costs of car rentals, shuttles, taxis, and airport parking during travel shall be reimbursed. A per diem for travel shall be payable to cover all incidental expenses during travel at origin and destination. The per diem shall not be deemed to cover items listed separately in this Clause 1.2. The per diem shall be deemed to cover all day to day living and travel expenses including but not limited to food, beverage, laundry, telecommunications (local and international) and the like. The per diem shall be payable as follows:-

(a) (b)

US$100 for each day (per diem). The number of days for which the per diem shall be payable shall be calculated from, and include, the day of departure from the city of origin up to, and including, the day of return.

2.

Invoices for travel expenses shall be accompanied by copies of the receipts. The invoices shall be submitted to the Owner for approval for payment monthly. .pdf copies of original receipts will be acceptable. Receipt copies shall include the travelers name at the top right of each receipt sheet. Receipts with combined traveler expenses shall clearly indicate the names of each traveler. Separate invoices shall be submitted for each unique currency. Currency exchange rates shall be effective the date of the transaction. Payments by Owner for travel expenses shall be paid directly to the Designer as per Clauses 3.5 and 3.6 of this Contract.

3. 3.1

Sun Group Corporation The Owner

Consultancy Agreement 3-Oct-11 Page 26 of 27

Falcons Treehouse LLC The Designer

Sun Group Corporation The Owner

Consultancy Agreement 3-Oct-11 Page 27 of 27

Falcons Treehouse LLC The Designer

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