Standart Contract for the Works (Unit Cost Works) - ANNEX 7

[admin]

Annex: 7
STANDARD CONTRACT FOR WORKS
(Unit Cost Works)

Article 1 – Parties to the Contract1
This Contract hereby has been executed by and between ................................................... (hereinafter referred to as "the Contracting Entity") on one part and ............................ ................ (hereinafter referred to as "the Contractor") on the other part on the following terms and conditions.

Article 2 – Information About the Parties
2.1. Address of the
Contracting Entity   : ............................................................................................
Phone         : ............................................................................................
Fax         : ............................................................................................
E-mail (if any)   : ............................................................................................

2.2. Name of contractor2: .......................................................................................
Notification Address
of the Contractor   : ...........................................................................................3
Phone         : ............................................................................................
Fax         : ............................................................................................
E-mail (if any)   : ............................................................................................

2.3. Both Parties hereby accept the addresses specified in Articles 2.1 and 2.2. as their notification addresses. Notifications to the last addresses informed shall be deemed to be sent to the respective Parties unless any change (to the) of addresses is notified to the other Party.

2.4. The Parties may send notifications to the other Party by means of delivery (personally, mail or) mail courier, (telex,) fax (or) e-mail or similar ways provided that the written notification is sent later within the stipulated duration.

Article 3- Name, Location, Nature, Type and Amount of Work

3.1. Name of Work: ................................................................................................

3.2. Location of Work: ............................................................................................

3.3. Nature, Type and Amount of Work: .......................................................................

Article 4 – Language of the Contract
The language of the Contract is Turkish.4
Article 5 – Definitions5
The definitions set forth in the Public Procurement Law No. 4734, Public Procurement Contracts Law No. 4735 and General Specification for Works as well as the definitions set forth in the tender document shall be applicable in implementing this Contract hereby.

Article 6 – Contract Type and Price
6.1. This Contract is a unit cost contract, and executed over the value of .................................... (in figures) and ................................ (in words), which is the sum of the multiplication of the unit costs proposed by the contractor for the items with each item given in the schedule drawn up by the contracting entity pursuant to the preliminary and/or final designs6 included in the tender document and the related location lists and unit cost tariffs.

6.2. The unit costs offered by the contractor in the unit cost offer schedule and used for determining the contract amount, and if any, the new unit costs that are determined later shall be taken as basis for the payment of the values of the works performed.

Article 7 – Costs Included in the Contract amount
Transportation, insurance, tax, levy, charge expenses for performing the contract shall be included in the contract amount. The Value Added Tax to be calculated as per the relevant legislation shall not be included in the contract amount, and shall be paid to the contractor by the Contracting Entity.

Article 8 – Taxes, Levies, Charges and Other Costs Concerning the Contract
All taxes, levies, charges and other related costs for execution of the contract shall be borne by the Contractor.

Article 9 – Annexes to the Contract
9.1. The Tender document shall be an annex to and an integral part of this Contract hereby, and shall bind the Contracting Entity and the Contractor. However, in the event that there is a conflict or discrepancy between the provisions of the Contract and provisions of the documents comprising the Tender document, the provisions specified in the Tender document shall be taken as basis.

9.2. The order of priority within the Tender document is as follows:
1) General Specification for Works
2) Administrative Specification
3) Draft Contract
4) Unit Cost Tariffs
5) Location Lists
6) Special Technical Specification
7) General Technical Specifications
Preliminary/ Final Design
9) Clarifications (if any)
10) Other Annexes7

9.3. Addenda of the documents listed above shall have the order of priority of the related documents.

9.4. The contractor shall be liable to comply with the provisions of the laws, ordinances, regulations and other similar legislations in force during the performance of work.

Article 10 – Date of Commencement and Completion of Work and Penalties Applicable for Delays
10.1. Date of commencement and completion of work:
10.1.1. The worksite shall be delivered and the work shall commence within .............. days following the notification by the Contracting Entity of the signature of the contract (registration by Court of Accounts if it is required) to the contractor or the address indicated for notification according to the General Specification for Works. The Contractor shall be liable to complete all works within .............. days as from the handover of the worksite and make available for temporary acceptance.

10.1.2. The days on which the work may not be carried out due to the adverse weather conditions    in scientific aspects are between ...................... However, this period shall not be taken into account at the completion of work and the Contracting Entity may require from the contractor to work within this period to complete the work by meeting the technical requirements.

10.1.3. The durations are on the basis of the calendar days. In the calculation of this duration, any extension of duration may not be claimed since the period of time that is not suitable due to the adverse weather conditions and the official holidays are taken into account. In respect of the works that are spread to the next year owing to the force majeure, the period that is not suitable for working shall be taken into account according to the appropriations and type of works.

10.1.4. If the work is completed early, the Contracting Entity shall complete the acceptance procedures in accordance with the provisions set forth in the General Specification for Works without waiting for the date of completion of the work.

10.2. Penalties applicable in the case of delays:
10.2.1. Except for the extension of duration graced by the Contracting Entity, the penalty at the rate of ......................8 of the contract amount shall be deducted from the progress payment of the contractor for each calendar day delayed if the work is not completed in a timely manner. The amount of the daily delay penalty includes the price differences calculated until that time.

10.2.2. The dates of completion of various parts of the work and if the works are not completed on such dates, the partial delay penalties that are applicable according to the percentage within the contract amount are indicated herein below:

Parts of Work      Dates of Completion of Parts      Partial Delay Penalties


10.2.3. The delay penalties shall be deducted from the progress payments without any necessity to issue notice to and procure judgment against the contractor. If these penalties are not covered from the progress payments, they shall be collected directly from the contractor.

10.2.4. If all works are not completed in a timely manner, the daily delay penalty shall be imposed for the whole works, and any other delay penalty shall not be imposed.

Article 11 – Provisions on the Performance Bond
11.1. Performance Bond:
11.1.1. The amount of performance bond concerning this work shall be .............................. (in figures) and .............................. (in words).
The Contractor has furnished ................................. (in figures) and ........................ (in words) as the performance bond.

11.1.2. If the performance bond is furnished in the form of a letter of guarantee, the duration of such performance bond shall be determined by the contracting entity in view of the date of completion of the work. If the duration set forth in the contract is exceeded owing to the cases laid down in the Law as well as the work under penalty, the duration of the performance bond shall also be extended in view of the duration of work.

11.2. Additional Performance Bond:
11.2.1. In the works requiring the payment of price difference, additional performance bond shall be received from the values accepted as guarantee by 6% of the amount payable as price difference and/or the amount of increase if the contract amount increases. The additional performance bond that is calculated over the amount that will be paid as the price difference can also be covered by deducting from the progress payments.

11.2.2. If the additional performance bond is a letter of guarantee, the duration of the additional performance bond shall be determined by the Contracting Entity, which shall not be less than the duration of the performance bond.

11.3. Performance bond and additional performance bond provided by the Contractor shall be changeable with the values that are accepted as guarantees.

11.4. Returning Performance Bond and Additional Performance Bond: 
11.4.1. After the Contracting Entity determines that the work has been performed in accordance with the provisions of the Contract and Tender document, and the deficiencies and defects of the works, if any, are remedied and the temporary acceptance protocol is approved, and the Contractor does not have any outstanding debt to the Contracting Entity due to this work, half of  the performance bond and the additional performance bond received shall be returned to the Contractor and the remaining half shall be returned after the certificate of no binding issued by the Social Security Institution is submitted to the Contracting Entity and the final acceptance protocol is approved.

11.4.2. In the event that outstanding debts of the Contractor to the Contracting Entity and social security institutions due to this work as well as the legal tax deductions made from prices and payments assumed as prices are not paid until the final acceptance date of the works, performance bonds and additional performance bonds shall be converted into cash and deducted against the incurred debts, and if any, the remaining amount shall be returned to the Contractor without any need for written protest and judgment by a court.

11.4.3. In the cases where it is not necessary to make deductions as per the provisions set forth hereinabove, the performance bonds shall be invalid and returned to the relevant bank or private financial institution because they are not demanded in spite of the written demand of the Contracting Entity within two years following the approval of the final account and the acceptance protocol. Guarantees other than the letters of guarantee shall be registered as revenue for the Treasury at the expiry of the period.
11.5 The bonds which are taken by the Contracting Entity can not be distrained and temporary injunctioned in any ways

Article 12 – Place and Terms of Payment
12.1. The progress payments of the contractor shall be effected by ..................................9

12.2. The progress payment reports shall be issued every ............... days10 following the legal deductions within the principles set forth in the General Specification for Works annexed to this contract, and accrued within thirty days following approval by the contracting entity and paid within fifteen days.

The following appropriations are foreseen for this work over the contract amount:
.............................. in 200...
.............................. in 200...
.............................. in 200...
.........................................

12.3. The appropriations listed hereinabove can be increased upon taking consent of the contractor provided that it remains within the boundaries of the total contract amount. The contractor is liable to apply the increased appropriations as (works and/or preparations)  production in compliance with the approved and revised work program in that year..

12.4. If the contractor performs more work than the work program, the contracting entity shall pay the value of this extra work if possible.

12.5. The contractor cannot assign any kind of progress payments and receivables to third persons without written consent of the contracting entity. The deeds of assignments must be issued by notaries and meet the terms and conditions required by the contracting entity.

Article 13- Work Program
13.1. The contractor shall draw up the work items, monthly works and quantity of works (preparations for the unit cost works stipulated to have payments for preparations), annual appropriations and the detailed work programs indicating their distribution to the months (minimum four copies) and submit to the contracting entity for approval in view of the samples given by the contracting entity and in view of the parts of works, dates of completion and amounts of annual payments set forth in Article 10 within fifteen days following the date of notification of the signing of the contract (registration by Court of Accounts for the works that are subject to such registration) by the contracting entity.

13.2. The provisions of General Specification for Works shall be applicable for drawing up and implementing the work program and other related matters.

Article 14 – Terms and Amount of Advance Payment
Advance payment ................................................................. for this work11.
Article 15 – Terms of Payment and Calculation of Price Difference
15.1. The contractor shall not be entitled to claim price difference due to any increase in taxes, levies, charges and similar financial liabilities until the complete performance of the contract or new financial liabilities during the performance of contract including any time extension.

15.2. ......................................................................................................12.

15.3. Principles and procedures concerning the price difference under this contract cannot be amended after the contract is concluded.

Article 16 – Information about Subcontractors and Their Responsibilities
............................................................................................................13.

Article 17- Terms of Support Services Such As Installation, Commissioning, Training, Maintenance- Repair and Spare Parts
......................................................................................................................14

Article 18- Protecting and Insuring the Work and Worksite
18.1. The contractor shall be liable to arrange "all risk" insurance according to the provisions set forth in Article 9 of Public Procurement Contracts Law #4735 and the General Specification for Works against the risks such as earthquake, flood, landslide, storm, fire etc. that may occur from the date of commencement to work until the date of final acceptance according to the features and characteristics for any tool, material, preparation work, work and service machinery, vehicles, facilities and the completed parts of the works performed.

18.2. The provisions of General Specification for Works shall be applied with respect to the liabilities of the contractor for protecting and insuring the work and worksite.

Article 19 – Cases and Conditions for Extension of Duration
19.1. In cases where it is compulsory to increase to contract amount up to 20% (Council of Ministers is authorized to increase this percentage up to 40%) owing to the events not anticipated in the contract, the time extension required for the additional work shall be graced to the Contractor.

19.2. The Contracting Entity shall accept the cases listed below as the events of force majeure provided that it is not caused by any defect attributable to the Contractor, it has the nature to hinder the performance of the contract, the contractor does not have sufficient power to eliminate this hindrance, and the contractor notifies the Contracting Entity in writing within twenty days following the day of occurrence of the case of force majeure, and this is documented by the competent authorities:

19.3. Events of force majeure:
   a) Natural disasters,
   b) Legal strikes,
   c) Epidemics,
   d) Announcements for partial or general mobilizations,
   e) Other similar cases to be determined by the Authority (PPI)  where necessary.

19.4. In the event that the Contracting Entity does not fulfill the contractual obligations (delay in handing over the worksite and approval of the projects and lack of appropriations etc.) within the stipulated duration without any default of the contractor as specified in this Contract and General Specification for Works, and any delay occurs with reasons not caused by the contractor, the situation shall be reviewed by the Contracting Entity upon the request by the contractor provided that this hinders the performance of the contract and the contractor does not have sufficient power to eliminate the hindrance, the Contracting Entity may extend the time for a part of or whole work according to the nature of the work but in this case the stipulation of writing within twenty days
to the Contracting Entity is not sought.
.

19.5. The pertinent provisions of the General Specification for Works shall be applied in other matters concerning the duration of work and time extension.

Article 20– Terms of Delivery, Examination and Acceptance
The terms and conditions of delivery and receipt of the work as well as the temporary and final acceptance of the work shall be governed by the provisions of the General Specification for Works.

Article 21- Duration of Performance Bond
The duration of performance bond shall be .................15 between the temporary acceptance and final acceptance, and this duration shall commence as from the date of temporary acceptance.

Article 22- Conditions for Inspection of Work and Liability
22.1. It shall be inspected by a work inspection group consisting of the officers of the Contracting Entity during the term of contract that the work is performed in compliance with the contract and annexes thereof as well as the scientific and artistic rules. The contractor shall be liable to comply with the instructions of the work inspection officer in compliance with the contract and annexes thereof as well as the scientific and artistic rules. Performance of the work under the inspection of the work inspection officer shall not release the contractor from any obligation and liability to perform the whole work undertaken in accordance with the projects, specifications, contract and other annexes thereto as well as the scientific and artistic rules.

22.2. The provisions of General Specification for Works shall be applicable for the inspection of works, powers of the work inspection officer, disputes between the contractor and work inspection officer and other matters.

Article 23- Conditions for Technical Liability of Contractor
The contractor shall be obliged to perform the work undertaken in compliance with the contract and annexes thereof as well as the scientific and artistic rules. The provisions of General Specification for Works shall be applicable for the issues concerning the technical liability of the contractor.

Article 24- Availability of technical personnel
24.1. The contractor shall be liable to keep continuously the technical personnel whose numbers and positions are given below within the worksite from the date of commencement to work.

Number
   Position
Professional Title
   Professional Skills16
1- .....................................................................................................................
2- .....................................................................................................................
3- .....................................................................................................................

24.2. If the Contractor does not make available the technical personnel, the number and positions of which are mentioned above, the penalty at the amount of ........................................... shall be deducted from the subsequent progress payment in view of;
1- TL/ day ........................... for ................ (professional title) .......................
2- TL/ day ........................... for ................ (professional title) .......................
3- TL/ day ........................... for ................ (professional title) .......................

24.3. The contractor shall be liable to inform the names and certificates (diploma, registration certificate of professional chamber, notarized letter of commitment, certificate etc.) of the technical personnel mentioned above together with the Technical Personnel Statement within fifteen days following the notification of the signature of the contract (registration by Court of Accounts for the works subject to such registration) to him. The Contracting Entity shall make the necessary investigation on these personnel and notify the contractor whether it has accepted them or not within twenty days. If this notification is not made by the Contracting Entity, the technical personnel notified shall be deemed accepted. The contractor shall be liable to comply with this notification. Otherwise, the daily penalties mentioned above shall be applied and the Contracting Entity shall be authorized to cease the work without sending any notice.

24.4. In respect of such personnel, the ones that are in charge of technical and administrative inspection of the work may leave the worksite by assigning representatives that are accepted by the Contracting Entity to have the same qualification under compulsory circumstances and the other personnel may leave the construction site due to the reasons such as disease, annual leave or business travels upon written approval of the Contracting Entity.

24.5. In respect of the technical personnel that must be available at the construction site temporarily during the term of work, the time and duration of availability of such personnel at work shall be entered into a protocol between the work inspection officer and the contractor. The contractor shall be liable to notify the names of such technical personnel to the Contracting Entity together with the certificates at least thirty days prior to the date of commencement to work. The Contracting Entity shall make the necessary investigation on these personnel and notify the contractor whether it has accepted them within twenty days. If this notification is not made by the Contracting Entity, the technical personnel notified shall be deemed accepted. The contractor shall be liable to comply with this notification.

Article 25- Conditions of Amendment to the Contract
25.1. The amendments to the following provisions of the contract may be made provided that the contract amount is not exceeded and the Contracting Entity and the contractor reach a mutual agreement after the contract is executed:

a) Location of work,
b) Duration of work and terms of payment according to this duration provided that the work is performed earlier than the stipulated duration.

Article 26- Failure to Perform the Contract
If the contractor fails to perform the contract in accordance with the tender document and the provisions of the contract (contrary acts to the contract such as failure to deliver the worksite, assigning the whole work to a single subcontractor or assigning unauthorized subcontractor for the works subject to approval, unauthorized assignment of the contract, unauthorized transfer, failure to extend the duration of the performance bond, the duration of which expires, significant delay in the work program etc.) or fails to complete the work in a timely manner, and provided that the same condition continues in spite of the notice of twenty days and provided with clear reasons of the Contracting Entity save as the delay penalty is applied at the percentage set forth in the tender document, the performance bond and the additional performance bonds, if any, shall be registered as revenue and the contract shall be terminated and the account shall be settled according to the general provisions without any necessity to issue a letter of protest.

Article 27- Terms of Termination of Contract
The provisions of Public Procurement Contracts Law #4735 and General Specification for Works shall be applicable with respect to the terms of termination of the contract by the Contracting Entity or the contractor and the other issues concerning the contract.

Article 28- Increased Works, Decreased Works and Dissolution Works Under Contract
If increased works arise in the contracts of works owing to the reasons that cannot be anticipated beforehand, the provisions laid down in Articles 22 and 48 of General Specification for Works shall be applicable.

Article 29- Liabilities of the Personnel for the Personnel to be Employed for the Work Under Contract
The liabilities of the personnel for the personnel to be employed for the work under contract and the related terms shall be governed by the provisions of General Specification for Works.

Article 30- Determination of Unit Costs for Works Not Included in the Contract
30.1. The costs of the new work items that are deemed necessary by the Contracting Entity for the performance of works, but the values of which are not indicated in the unit cost tender schedule in respect of works contracted under the preliminary and/or final design owing to natural disasters and the works contracted under the final design since they require land and ground surveys during the performance of works shall be paid to the contractor over the new unit costs determined with the contractor within the framework of the provisions set forth in the General Specification for Works upon the written demand of the Contracting Entity.

Article 31- Variation of Quantities of Work Items
If the quantity of any work item included in the unit cost tender schedule attached to the contract increased over 20% during the performance of work and this increase also exceeds 1% of the contract amount, the unit cost of the relevant work item shall be revised as follows relative to the percentage of the increase within the contract amount, and the payment shall be effected for the part of such work item exceeding twenty percent over the revised unit cost.

R= F x [1 – (AxF)/ S]

S= Contract amount (TL),
F= Contract unit cost of the work item (TL/ .....),
A= Measure of increase in the work item (Piece, m, m2 etc.)
R= Revised unit cost (TL/ .........).

Article 32- Final Calculations During the Performance of Work
32.1. The contractor shall be liable to retain the personnel necessary during the performance of work in order to ensure that the final calculations are completed in a timely manner, and draw up the calculations with the work inspection officer following the completion of each work item, and submit to the Contracting Entity for periodic inspections.

32.2. 90% of the amounts of work items that are completed, but the final calculations of which are not made and submitted to the Contracting Entity shall be included in the progress payment, and unless the final calculations are made and submitted to the Contracting Entity, all amounts concerning these items shall not be paid.

Article 33- Miscellaneous Provisions
......................................................................................................................17

Article 34- Settlement of Disputes
.....................................................................................................................18

Article 35 – Enforcement
This Contract hereby shall take force following the notification of the registration of the Contract by the Court of Accounts, and in cases where the registration by Court of Accounts is not necessary, the date when the contract is signed by the respective parties. This Contract hereby, which consists of ............................ Articles, has been issued and executed in ................. copy / copies after fully read and understood by the Contracting Entity and the Contractor on ....................... and ............ copy / copies has / have been delivered to the each party.


CONTRACTING ENTITY             CONTRACTOR