Common use of OTHER COVENANT Clause in Contracts

OTHER COVENANT. 18.01 It is expressly agreed and understood that in case of irreconcilable conflict between the provisions of this Contract and the provisions of any of the contract documents, the former shall be controlling. 18.02 It should also be clearly understood that any payment or failure of the PPA to demand compliance with any of the terms and conditions of this Contract or any act of liberality on the part of the PPA shall not be construed or considered as a waiver on the part of the PPA for the enforcement of this Contract. Nor shall it relieve the CONTRACTOR of any of its obligations provided thereunder. 18.03 Under no circumstances shall the PPA be held liable for the payment of any extra work, or extra cost of work, change of work, or change order undertaken without the prior written approval of the PPA to perform said work. 18.04 Notwithstanding any provision to the contrary, the PPA has the right to terminate, cancel and/or rescind this contract motu proprio, in case of breach thereof by the CONTRACTOR, without need of judicial action by giving at least Ten (10) days written Notice to that effect to the CONTRACTOR, which notice shall be final and binding on all the parties. In such event, the PPA may take over and continue the project, and the contracts and agreements entered into by the CONTRACTOR with third parties, which the PPA in its discretion, may want to assume are hereby conclusively deemed assigned to PPA. For this purpose, the CONTRACTOR hereby agrees and obligates itself to incorporate or cause to be incorporated in any contract or agreement with third parties, as same is connected with or related to the performance of any or all of the CONTRACTOR’s obligations and undertakings hereunder, a stipulation providing for its assignability to and assumption by the PPA, at the option of the PPA. It is further agreed and understood that upon receipt of the Notice mentioned above, the CONTRACTOR cannot remove, withdraw or pull-out any of the equipment, machinery, tools, materials, and/or supplies brought to the project site without the written approval of the PPA. Within thirty (30) days after termination, cancellation or rescission of this Contract, the parties shall settle their respective accountabilities as of the date of termination, cancellation or rescission, including the refund of any and all advances made plus legal interest from date of receipt of the amount or amounts advanced. 18.05 It is expressly agreed that whenever the CONTRACTOR’s delay in the completion of work exceeds a time duration equivalent to ten percent (10%) of the specified contract time plus any time extension duly granted to the contractor, the PPA may rescind the contract, forfeit the contractor’s performance security and takeover the prosecution of the project or award the same to a qualified contractor through negotiated contract pursuant to Section 53 – Negotiated Procurement of the IRR-A of R.A. 9184. Whenever, the contractor’s total sum of liquidated damages exceeded ten percent (10%) of the total contract price, in which event the contract shall automatically be taken over by PPA or award the same to a qualified contractor through negotiation and the erring contractor’s performance security shall be aside from the amount of the liquidated damages that the contractor shall pay the government under the provisions of IRR-A of R.A. 9184 and impose other appropriate sanctions. 18.06 The PPA has the right to require the CONTRACTOR to supply and provide the required tools, materials, supplies, equipment, facilities, and to increase the number of workers assigned to the work when exigencies of the service so require. Should the CONTRACTOR fail, refuse or neglect to comply with the same, PPA shall have the option to take over the project in whole or in part or award the same to another CONTRACTOR through negotiated contract at the current valuation price in accordance with P.D.1870 Any increase in cost which the PPA may incur as a result of its take-over of the project pursuant to paragraphs 18.04, 18.05 and 18.06 shall be borne by and charge to the CONTRACTOR. 18.07 The CONTRACTOR shall provide and do everything necessary to perform its obligations under this Contract according to the true intent and meaning of all the Contract Documents taken together, whether the same may or may not be shown or described particularly in the drawings, plans and specifications provided that the same can be inferred therefrom. Should the CONTRACTOR find discrepancy in the drawings, plans and specifications, it shall immediately refer the same to the PPA, whose decision shall be followed. 18.08 The CONTRACTOR shall undertake the repair works at his own expense during the defects liability period from project completion up to final acceptance by PPA of any damage to the project on account of the use of materials of inferior quality within ninety (90) days from the time the PPA has issued an order to undertake the repair. In case of failure or refusal to comply, the PPA shall undertake such repair works and shall be entitled to full reimbursement of expenses incurred therein upon demand. The CONTRACTOR who fails to undertake the repair works shall suffer perpetual disqualification from participating in any public bidding and his properties or properties shall be subject to attachment or garnishment proceeding to recover the costs. All payables in his favor shall be offset to recover the costs pursuant to IRR-A of R.A. 9184. 18.09 CONTRACTOR agrees and obligates itself to restore to its original condition on its own account, any public road, pavement, streets or open space and/or public or private property which are excavated or in any manner used by the CONTRACTOR in connection with the performance of its obligations under this Contract. 18.10 CONTRACTOR agrees and binds itself to hold and save PPA free and harmless from any damage, claims and rights of action arising out of or by reason of this contract and all injuries that may be suffered by PPA due to the failure, negligence, delay or conduct on the part of the CONTRACTOR and/or its employees in the performance of their obligation. 18.11 No final payment of the contract shall be made to the CONTRACTOR without the Certificate of Completion and/or Acceptance from the Office of the City Engineer of the City concerned of the local works to be restored mentioned in paragraph 18.09 hereof, otherwise the cost of restoration shall be made available out of any collectable/receivable by the CONTRACTOR from the PPA. 18.12 Notwithstanding any extra work, change of work or orders made, if any, by the PPA, it is agreed that the same shall be completed within the period herein fixed and provided. 18.13 The CONTRACTOR shall hold the PPA free and harmless from whatever suit and hereby binds and obligates itself to indemnify the PPA for any and all liabilities, losses, damages, judgment, awards, fines, penalties and all expenses, legal or otherwise, of whatever kind and nature, arising from and by reason of this Contract, due to the fault, negligence, act, omission, delay, conduct, breach of trust or non-observance or violation of this Contract or any stipulation and warranty by the CONTRACTOR and/or any of its employees, agents, representatives or sub- contractors. 18.14 The CONTRACTOR shall assume full responsibility for the contract work from the time project construction commenced up to final acceptance by PPA and shall be held responsible for any damage or destruction of the works except those occasioned by force majeure and by other parties. The CONTRACTOR shall be fully responsible for the safety, protection and security, and convenience of his personnel, third parties and the public at large, as well as the works, equipment, installation and the like to be affected by this construction work and shall be required to put up a warranty security in the form of cash, bank guarantee, letter of credit, GSIS or surety bond callable on demand, in accordance with the following schedule: Form of Warranty Minimum Amount in Total Contract Price 1. Cash or letter of credit issued by Universal or Commercial bank: provided, however, that the letter of credit shall be confirmed or authenticated by a Universal or Commercial bank, if issued by a foreign bank Five percent (5%) 2. Bank guarantee confirmed by Universal or Commercial bank: provided, however, that the letter of credit shall be confirmed or authenticated by a Universal or Commercial bank, if issued by a foreign bank. Ten percent (10%) 3. Surety bond callable upon demand issued by GSIS or any surety or insurance company duly certified by the Insurance Commission. Thirty percent (30%) The warranty security shall be stated in Philippine Pesos and shall remain effective for one year from the date of issuance of the Certificate of Final Acceptance by the Procuring Entity, and returned only after the lapse of said one year period.