Keren Kayemeth LeIsrael - The Jewish National Fund Of... Annex C to the Living Green in Israel Competition documents Design of a demonstration structure for green construction Agreement with the designer Made and signed in on of Between Keren Kayemeth LeIsrael - The Jewish National Fund Whose address for the purpose of this agreement is: (Hereinafter: the KKL-JNF ) And between (Hereinafter: the Designer ) Whereas Whereas Whereas the KKL-JNF wishes to contract the Designer for the execution of the design work specified in this agreement; and the Designer has examined the KKL-JNF guidelines, the quality of the services ordered and the required design terms, and based on his examination he hereby agrees to take on the implementation of the design work; and the Designer is a registered designer under the Engineers and Architects Law, 5718 1958, at the appropriate sector for the purpose of performing the work subject of this agreement and warrants that he has the suitable knowledge, resources, experience, qualifications and skills to perform the work and services subject of this agreement and that he shall work diligently and perform the services in a superior manner to the KKL-JNF s complete satisfaction and comply with the terms of this agreement and its annexes; and 1
Whereas the Designer is experienced and knowledgeable, has professional qualifications, reputation, equipment and personnel suitable in all respects for the purpose of performing his obligations under this agreement in their entirety; and Whereas based on the Designer s representations, the KKL-JNF wishes to enter into an agreement with the Designer pursuant to the terms of this agreement; Now therefore it is agreed, declared and stipulated between the parties as follows: 1. The preamble to this agreement and the exhibits hereto constitute an integral part of this agreement. 2. The KKL-JNF hereby tasks the Designer and the Designer hereby undertakes to perform in a superior manner and at a high level the following design work: Detailed design of a demonstration structure for green construction, as detailed in the Definition of Work Annex hereinafter: the Design Work. 3. Upon completing the work the Designer shall give the KKL-JNF all of the original plans and two CDs (DWG), according to the agreement made with him in practice, in addition to the Designer s undertaking to give the KKL-JNF any material required by it at any time as specified in this agreement. 4. The Designer will perform the Design Work according to the steps and services listed in Annex B and in this section as follows: a. Formulating a program for the structure, together with the KKL- JNF to adapt it to the organization s needs, tours of the construction site as required, updating the cost estimate for the execution of the structure b. Handling of temporary or perpetual building permits c. Planning the quantity to be performed, including coordination and cooperation with other consultants involved in the design of the structure (constructor, water cave, electricity, telecommunications, etc.) d. Designing the changes to the structure for its conversion to another use as needed e. Planning the mobilization of the structure and the ways to dismantle and transport it between sites f. Accompaniment and oversight during the construction of the structure 2
g. Accompaniment and oversight of the dismantling and transportation of the structure between different sites including its rebuilding in up to three sites h. Proposals for tours of the structure and planning aids to support the tour of the structure and its presentation to the public i. Participation in the team to formulate a guide program for the tour of the structure j. Presenting the structure at various public and internal events 5. a. The KKL-JNF representative for the purpose of this agreement, including for the provision of instructions, orders, approval of plans and accounting will be: Mr. (Full name, address and phone) (hereinafter: the Representative ) b. The Designer will perform the Design Work in coordination and while maintaining constant and effective contact with the KKL- JNF and with the aforementioned Representative. c. The Designer will act immediately upon the execution of this agreement to collect and receive all relevant material required to carry out the Design Work in accordance with the terms of this agreement. 6. a. The Designer will execute the Design Work according to the schedule as specified in Annex B to this agreement. Adhering to the aforesaid schedule is a key condition of this agreement. b. The Designer shall submit all of the plans for KKL-JNF s approval according to the above schedule. The plans will not be deemed complete until receiving the KKL-JNF s approval. Once the KKL-JNF gave its comments to the Designer, the Designer will amend the plan within a reasonable time to be agreed upon between him and the KKL-JNF in accordance with the circumstances of the amendment required, but will not exceed any reasonable period of time required for the amendment as estimated by the KKL-JNF. c. The Designer undertakes to submit work plans for the approval of all relevant authorities, for the inspection of the existing infrastructure plans and the authorities reservations regarding the execution of the project, if required. The design will be only in accordance with signed permits from all the relevant authorities and after receiving the Representative s approval, if required. The determination of all the relevant authorities, if required, rests with the Designer and he must ensure that he does not disregard any relevant authority. 3
The foregoing does not release the Designer from his absolute professional liability, and these permits do not to impose on the Representative and/or the KKL-JNF or anyone on its behalf, any liability in connection with the quality of the plans or of said documents. d. The Designer will perform any service or stage included in the Design Work for which no date was set, whenever it is necessary from a professional aspect and for a reasonable period of time, which will ensure the execution of all the Design Work or services or other steps related to the service or that stage, according to the schedule in Annex B. e. In the event that additional work as defined below is required, a schedule for the additional work will be determined, in proportion to the scope of the Design Work according to the existing schedule. f. In the event of a delay in the execution of any of said stages on the dates set forth in this agreement or in its annexes in the Design Work due to force majeure or due to other conditions or other circumstances over which the KKL-JNF believes the Designer had no control and which to the KKL-JNF s opinion could not have been avoided by the Designer, the schedule will be extended for that period of time during which the delay continued or by the duration of the suspension caused by the delay. All this is provided that the Designer shall notify the KKL- JNF in writing within a week from the beginning of the delay. In the absence of such notice, the schedule shall not be extended. g. In any event the Designer will not be entitled to any compensation for the extension of the duration of the Design Work or additional work caused by circumstances beyond the KKL-JNF s control. 7. The KKL-JNF undertakes to provide the Designer with all the data and permits required for the Design Work, pertaining only to areas for which data is required, and whose attainment is not possible without the KKL-JNF or which is not one of the services the Designer is tasked with according to this agreement, in the event such data is required. It is clarified that in the event of computerized data, these files will be transferred to the Designer in the existing software found at the KKL-JNF, and any conversion of files or software will be the responsibility of the Designer alone and at his expense. 8. The KKL-JNF will contract at its own expense and in consultation with the Designer, consultants in required professions such as a constructor, a green construction consultant, a water and electricity consultant, etc. In agreement with the consultants the schedule of execution of their architectural work will be linked to the Designer s schedule. In the event that due to the contracting of consultants a delay may occur in 4
the schedule, the Designer must provide the KKL-JNF prior written notification of the fact. 9. The Designer will give the KKL-JNF a full and detailed account on the progress of execution of the Design Work. The KKL-JNF and/or the Representative may visit the Designer s office or other workplaces and review the progress and the execution of the Design Work according to this agreement, at any time, and may receive from the Designer any material in any form they ask for at any stage. 10. a. The Designer s consideration for executing the Design Work will be paid by the KKL-JNF at the times and in accordance with Annex C of the tariff and the annexes to this agreement. b. The consideration for the Design Work is 60,000 ILS (excluding VAT). sixty thousand New Israeli Shekels (excluding VAT) (in words). c. The above consideration is final, complete and includes all of the Designer s expenses associated with the execution of the Design Works, including without limitation, assistants fees, counseling services (except as noted above), office services, phone calls, computer costs, adjusting or converting software, etc., office expenses, travel expenses and any other service or work required for the fulfillment of the Designer s obligations and/or the obligations of anyone on his behalf. It is clarified that the consideration does not include any linkage, provided the work complies with the original schedule. d. The Designer will not be entitled to any payment in the event that the KKL-JNF would require minor changes in the Design Works and also in the event the Design Works exceed those planned, if for example, the discussion of the plan is split between several planning committees. e. However, in the event that significant and material changes will be required in the Design Works, or changes originating with the KKL-JNF, the KKL-JNF will pay the Designer for the additional Design Work in accordance with the hours of work presented in detail by the Designer, and that do not exceed the hours of work required of a reasonable designer for the additional work, at a rate to be agreed upon with the KKL-JNF, which does not exceed the standard rate at government offices (hereinafter: the Additional Work ) provided that the KKL-JNF and the Designer will agree and conclude in advance and in writing the Additional Work and all conditions associated with it. f. The Designer shall provide the KKL-JNF confirmation on bookkeeping and tax withholding at the source and any other confirmation required by the KKL-JNF to make a consideration payment. 11. a. On account of this consideration the KKL-JNF shall pay the Designer interim payments according to the progress of work 5
and according to the accounts submitted by the Designer pursuant to Annex C. Notwithstanding the foregoing, the KKL- JNF will be entitled at its sole discretion, to authorize additional interim payments to the Designer, in respect of any service or any stage of the Design Work even before it is completed by the Designer, that will be in the aforementioned rates for that service or stage of the Design Work. All said interim payments are advances only on account of the consideration due to the Designer. b. Any account presented by the Designer according to Annex C will be approved by the KKL-JNF within 30 days from the date of submittal of said account. In the event the KKL-JNF does not challenge said account, or any part thereof, within said period, the account or account parts will be deemed as being uncontested by the KKL-JNF and approved, and will be paid by the KKL-JNF within 60 days at the latest. 12. The Designer will not slow down the pace of work or otherwise impair the continued execution of the work despite their differences and the KKL-JNF makes all payments accordingly, without any delay. 13. a. Notwithstanding the provisions in this agreement, the KKL-JNF may terminate this agreement at any time and for any reason, by giving the Designer written notice of the fact. In the event that such notice has been given, the agreement will be terminated within 30 days of delivery of the notice. b. In the event that the KKL-JNF has exercised the option given it under this section, the Designer will be obliged to submit to it, within 30 days, all the material in his possession pertaining to the execution of the design, including the design deliverables as defined below, as these may be until the date of said termination of the agreement, even in the event there are differences regarding the consideration, in addition to the Designer s obligation to give the KKL-JNF any material required by it in any way at any time. c. In the event that the execution of the Design Work was halted in accordance with the above section, the KKL-JNF will pay the Designer only the relative share of the consideration, according to the progress of the work pursuant to the steps outlined in Annex C and that in no event will exceed the amount of the unpaid balance of the consideration (hereinafter: the Relative Consideration ). The amount of the Relative Consideration will not change due to linkage or price increase and will not bear any interest. d. Notwithstanding the foregoing, it is hereby agreed and clarified that in the event that the execution of the Design Work was halted by the KKL-JNF due to the fact that the Designer did not properly carry out the Design Work to the KKL-JNF s satisfaction, or in the event he did not meet the schedule, the KKL-JNF will be entitled not to pay the Designer the 6
consideration, and the Designer must return to the KKL-JNF any part of the consideration paid by it together with duly accrued linkage and interest differentials. 14. a. It is agreed and declared between the parties that the KKL-JNF will have all the rights and all intellectual property rights of any kind in connection with the Design Work and the Additional Work and their deliverables, including all material collected and/or obtained and/or prepared and/or processed and/or arranged by the Designer or his employees and/or anyone on his behalf (hereinafter: the Design Deliverables ). It is hereby clarified that the KKL-JNF will be entitled to utilize the Design Deliverables itself or through others, and treat them as an owner without requiring the Designer s consent or making any payment, and the Designer undertakes to take all actions as may be required by the KKL-JNF to register said rights in its name under the law. b. The Designer must transfer to the KKL-JNF all the Design Deliverables immediately when required to do so by the KKL- JNF, without derogating from the other provisions of this agreement. c. The Designer hereby represents and undertakes that no use will be made of text, photos, pictures, works or any other material, whether such use constitutes a violation of copyrights, goodwill, or any other intellectual property right, or if such use is contingent upon any kind of payment to any person and/or entity and/or institution, unless the Designer has made such payment in full, at his own expense and without any intention, right or ability to demand its reimbursement from the KKL-JNF. The Designer undertakes to submit confirmation on an exemption from payment or lawful use, at the KKL-JNF s request. d. The Designer undertakes to indemnify the KKL-JNF and return to it any amount it will be required to pay to any person and/or entity and/or institution for the violation of the Designer s abovementioned undertaking, without derogating from any relief and/or remedy the KKL-JNF may be entitled to under any law. e. Without derogating from the provisions above, the KKL-JNF may use as it sees fit at any time, including transfer to third parties, any material and information, document or other details provided to the Designer while performing the work, and to publish the material or any part thereof in any way it deems fit, all at its sole discretion and without need to obtain the Designer s consent. f. The Designer undertakes that his business and professional activity or his business ties with any other have no connection or pertinence, directly or indirectly, to the work, and there is no concern of conflict of interest between his other businesses and 7
the work subject of this agreement and he shall not enter into business contracts that involve a conflict of interests with the KKL-JNF. It is hereby clarified that in respect of the provisions of this section, the Designer may bring any matter in which there is concern of a conflict of interests before the KKL-JNF for discussion and the KKL-JNF may examine whether the provision of the services and/or his business relationship constitute a conflict of interests. The KKL-JNF's decision in this regard shall be final and may not be appealed. g. It is hereby agreed that any material or information reaching the Designer in connection with the Design Work will be the exclusive property of the KKL-JNF, and the Designer will not be entitled to make any use of it except for the KKL-JNF and for the execution of the Design Work under this agreement only. During the period of his employment and thereafter, the Designer undertakes not to transfer or use information on the KKL-JNF or information reaching him while working for the KKL- JNF in connection with the KKL-JNF and which is not common knowledge, to maintain secrecy regarding the KKL-JNF s business and interests and not to harm in any way the KKL- JNF s reputation. The Designer will have his employees sign a statement of confidentiality, in which they would undertake not to transfer, inform, deliver or disclose to any person any information reaching them in connection with the performance of the agreement or due to its execution, during the agreement period, before it or thereafter. The person signing the statement shall state that he is aware that failure to comply with the obligations under this section constitutes an offense under the Penal Code. 15. a. Nothing in this agreement creates any employer employee relationship between the Designer and the KKL-JNF and/or between the Designer s employees and the KKL-JNF. The relationship between the KKL-JNF and the Designer is that of a client contractor and there will be no employer employee relationship between the Designer and/or anyone on his behalf and the KKL-JNF and/or anyone on its behalf and/or its employees. All employees employed by the Designer will be deemed only as employees of the Designer, and all payments to the Designer s employees will be made by him alone. 16. a. The Designer s undertaking is personal and may not be transferred and/or performed by another person. b. The Designer may not assign this agreement or any part thereof and may not transfer or deliver to another any right or obligation under this agreement without receiving the manager s prior written consent. 8
c. The Designer may not deliver to another the execution of the work, in whole or in part, without receiving the manager s prior written consent. d. In the event the Designer transferred all of his rights or obligations under this agreement, in whole or in part, or gave the execution of the work to another, without the KKL-JNF s prior written consent, he will remain responsible for the obligations imposed on the Designer under this agreement, in addition to any other remedy available to the KKL-JNF under this agreement and under any law. 17. a. The Designer is responsible for any damage or loss caused to the KKL-JNF as a result of the execution of the work in a negligent manner and faulty design, non-compliance with all the provisions in this agreement above and the Designer must compensate the KKL-JNF for any such damage or loss it incurs, according to a final judgment of a competent court. b. The Designer is responsible towards third parties for damages caused in connection with the Design Work or due to the Design Work, and in the event the KKL-JNF will be charged by the court to pay to any third party any amount for damages the Designer is responsible for, the Designer will be liable for full compensation of the KKL-JNF of any amount the KKL-JNF will be charged with, including all losses and expenses incurred by the KKL-JNF in connection with said matter. In the event of the filing of a lawsuit against the KKL-JNF, the KKL-JNF will notify the Designer of the fact in writing within a reasonable time. c. The Designer must take out the insurance required under Annex D. 18. In the event the KKL-JNF waived a violation of any of the provisions of this agreement, the waiver shall not constitute a waiver of any subsequent breach of the same provision or of any other provision of this agreement. Any waiver, extension or concession made by the KKL-JNF will not be valid unless it is in writing and signed by the KKL-JNF. 19. Exclusive jurisdiction over any litigation regarding this agreement, including with respect to its interpretation, application and any matter related to it and/or arising from it shall be given to the courts in Jerusalem only, and the law applicable to the agreement is Israeli law only. 20. The KKL-JNF may offset any amount and/or payment that will be owed it by the Designer from any amount and/or payment payable to the Designer by the KKL-JNF for any reason, not just by virtue of this agreement, according to a final judgment. 21. Any waiver, extension or concession on the part of one of the parties will not be valid unless it is in writing and signed by said party. 22. In any instance requiring the KKL-JNF s authorization of any matter arising from this agreement or relating to it, the authorization shall 9
be in writing and signed by the KKL-JNF or the Representative or any person authorized on its behalf. 23. The Designer undertakes to take all additional actions required for the implementation of this agreement and its execution, in letter and in spirit. 24. Any document regarding this agreement may be sent via registered mail to the parties address as stated below and any document sent via registered mail shall be deemed to have been received by the sender within 72 hours from the date of mailing. The KKL-JNF s Address The Designer s Address In witness whereof the parties have signed: The KKL-JNF The Designer 11
Enclosed annexes Annex A the Work Plan Annex B Schedule and the stages of preparation of the Design Work Annex C Payment Schedule Annex D Insurance annex 11
Annex D The Designer s Insurance, Contract No. Without derogating from the Designer s liability under this agreement and/or under any law, the Designer undertakes to prepare at his expense, to execute and maintain at an Israeli insurance company all the insurance policies listed in Annex D1 Confirmation on the existence of the Designer s insurance policies (hereinafter: the Designer s Insurance Policies ) for the duration of his activities under the agreement. General the above policies include: 1. The Designer alone is responsible for paying the premiums for the policies and the deductibles in case of an insurance event. We hereby confirm that non-payment of the deductible by the Designer will not constitute grounds for not handling a claim. 2. The Designer undertakes to provide to the company Annex D1 Confirmation on the existence of the Designer s insurance policies, signed by the insurer, within 14 days from the date of signing of this agreement. 3. In the event the Designer did not fulfill one of his obligations in connection with the this annex, including not providing the KKL-JNF on time with the confirmation on the existence of the insurance policies, it would amount to a fundamental breach of contract, but shall not release him from any liability in connection with the insurance policies mentioned above. 4. The KKL-JNF and/or anyone on its behalf will be allowed to examine the insurance confirmation provided by the Designer, and in the event their adjustment will be required so they suit the requirements under this agreement, the Designer undertakes to execute the adjustments without delay. It is hereby agreed that KKL-JNF s right of examination and auditing, does not impose on it any obligation and liability in respect of the insurance policies, their nature, scope, validity or lack thereof, and does not derogating from the Designer s liability. 5. The preparation and/or failure to prepare the above insurance policies, in the event they are not prepared in contravention of this agreement by the Designer and/or their preparation, in whole or in part, by and/or the KKL-JNF and/or anyone on its behalf and/or the making of any payments related thereto by the KKL-JNF and/or anyone on its behalf, do not minimize or detract in any way from the Designer s liabilities under this agreement, or release him from his obligation to compensate the KKL-JNF and/or anyone on its behalf and/or any person for any damage caused directly or indirectly as a result of his activity and/or as a result of the Designer s failure to comply with the provisions of this agreement. 6. For the avoidance of doubt it is hereby clarified that the determination of the limit of liability as set forth above is a minimal requirement imposed on the Designer and he should examine his exposure to liability and determine the limits of liability accordingly. 12
The Designer hereby represents and confirms that he will be precluded from raising any claim and/or demand against the KKL-JNF and/or anyone on its behalf regarding the above minimum limits of liability. 7. The Designer undertakes to continue to hold professional liability insurance for a period of no less than 7 years from the date of completion of his activity subject of this agreement or as long as his liability under law is in effect, the later of the two. 8. In the event the Designer believes there is need to take out additional and/or supplementary insurance policies to the KKL-JNF policies, the Designer may take out and maintain the supplementary and/or the additional insurance and/or amend it, as applicable, when any additional and/or supplementary insurance in respect of property insurance shall include a provision regarding the waiver of the right of subrogation in favor of the KKL-JNF and/or anyone on its behalf and such insurance will be extended to indemnify the KKL-JNF and/or anyone on its behalf. In respect of liability insurance, coverage will be expanded to include cross-liability. Date The Designer s signature 13
Annex X-1 Confirmation on the existence of the Designer s insurance policies Date To The Keren Kayemeth LeIsrael - Jewish National Fund Of (Hereinafter: the KKL-JNF ) Dear Sir/ Madam, Re: Confirmation on the existence of the Designer s insurance policies We hereby confirm that we took out in the name of (hereinafter: "the Designer") the insurance specified below, inter alia for the provision of consultation design and oversight services for various KKL-JNF projects or projects run by the KKL-JNF or by anyone on its behalf (hereinafter: the Services ): 1. Professional Liability Insurance, policy no.: from to Professional liability insurance with a limit of liability of no less than 2,000,000 ILS per event and per period, for the Designer s liability under law and/or demand first filed in the course of the insurance period for a violation of professional duty, originating in an act or omission, negligence, error or lapse on the part of the Designer and/or anyone on his behalf in the Designer s capacity and profession or due to any of his other liabilities. The policy is extended to cover: Liability arising from an exceeding in good faith of the authority granted to the Designer and/or to anyone on his behalf by another, including the KKL-JNF, in the course of the insured s occupation. The Designer s liability and/or that of his anyone on his behalf for loss of documents and other means of information. Oversight The policy will be extended to cover fraud/ dishonesty of an employee. The policy will be extended to cover a delay or suspension due to an insurance event. 14
The insurance includes retroactive coverage from. After the termination or cancellation of the insurance in our company, there will be a discovery period of 6 months, and any claim and/or event in respect of which notice will be given during the discovery period will be deemed to have been given in the course of the policy period. The insurance is extended to cover the KKL-JNF and/or anyone on its behalf, for their liability for the acts and/or omissions of the Designer and anyone on his behalf, subject to the cross-liability clause under which it shall be deemed to have been taken out separately for every one of the insured s individuals. A violation of the terms of the policy in good faith by the insured will not affect the KKL-JNF s rights under the policy. The Designer's deductible for an insurance event or a series of events arising from one original cause will not exceed 60,000 ILS. 2. Employer Liability Insurance (policy no. ) Employer liability insurance under the Torts Ordinance (New Version) and the Defective Products Liability Law, 5740 1980, insuring the Designer s liability, towards all his employees, in respect of physical, emotional or mental damage, or death resulting from an accident or illness, in an amount of no less than 6,000,000 ILS per case and plaintiff and 20,000,000 ILS per period. The insurance is expanded to cover the KKL-JNF and/or anyone on its behalf, in the event a claim is made regarding the occurrence of any accident at work that they bear any employer liability toward any of the Designer s employees and/or those operating on his behalf. Said insurance shall include an explicit provision regarding the waiver of the insurer's right of subrogation towards the KKL-JNF and/or anyone on its behalf, provided the waiver of the right of subrogation does not apply to a person causing malicious damage. 3. Third Party Liability insurance (policy no. ) Third party liability insurance, according to the laws of the State of Israel, insuring the liability of the Designer and/or anyone on his behalf against the loss, injury or damage, to the person and/or property of any person and/or entity, due to the Designer s activity, with a limit of liability of no less than 1,000,000 ILS per event and cumulatively for the insurance period. The insurance is extended to cover the KKL-JNF and/or anyone on its behalf, in respect of liability for the acts and/or omissions of the Designer and/or anyone on his behalf, subject to the cross-liability clause under which it shall be deemed to have been taken out separately for every one of the insured s individuals. 15
4. General these policies include: 4.1 The policies will not be canceled or be reduced during the insurance period, unless notice of the fact is given to the company via registered mail 30 days before the entry into force of the cancellation or reduction. 4.2 The above Designer s insurance policies precede any other insurance taken out by the KKL-JNF and/or anyone on its behalf without the right to participate in the KKL-JNF s insurance and/or anyone on its behalf insurance, and without the right to demand from the KKL-JNF s insurers and/or the insurers of anyone on its behalf to bear the liability under section 59 of the Insurance Contract Law, 5741 1981. 4.3 The Designer alone is responsible for paying the premiums for the policies and the deductible in case of an insurance event. We confirm that non-payment of the deductible by the Designer will not constitute grounds for not handling the claim. 4.4 Violation of the terms of the policy in good faith will not affect the rights of other insured parties for indemnification. Subject to the terms and reservations of the original insurance policies insomuch as they have not been explicitly changed according to the above and provided said change does not detract from the terms of the original policies. Name of insurer Signature and stamp of insurer Name of person signing Position of person signing 16