Construction Agreement Template
Construction Agreement Template
Construction Agreement Template
(2) Sta. Elena Properties, Inc., a corporation duly organized and existing
under the laws of the Republic of the Philippines, with principal office
address at the 21st Floor, Enterprise Center Tower 2, Ayala Avenue,
Makati City, and herein represented by its duly authorized Vice-
President for Business Development and Marketing, Guillermo V.
Tantoco (hereinafter referred to as “SEPI” which expression shall
include its successors-in-title and permitted assigns)
WITNESSETH: That
WHEREAS, the OWNERS, desire to construct the first phase of section 2 of the spine
road (hereinafter referred to as the “Project”) inside Sta. Elena Golf Course
Community in Cabuyao and Sta. Rosa City in Laguna, where the OWNERS’ respective
lots are located and adjoin each other;
WHEREAS, the CONTRACTOR, which has already been appointed to undertake the
construction and completion of the first phase of section 1 of the spine road, has
Page 1 of 14
manifested and warranted to the OWNERS that it is a duly licensed and experienced
contractor, offered to undertake the construction and completion of the Project;
WHEREAS, the OWNERS have accepted the offer of the CONTRACTOR to undertake
the construction and completion of the Project on the basis of the CONTRACTOR’s
Final Bid Proposal with Scope of Works dated 25 May 2011 (the scope of all the
works required under this Project is hereinafter referred to as the "Works");
ARTICLE I
CONTRACT DOCUMENTS
1.1 The term “Contract Documents” shall mean all the instruments, agreements,
information, proposals and instructions submitted or issued to prospective
bidders, relating to the design, construction and implementation of the
Project, and shall include this Contract, General Conditions of Contract,
Instruction to Bidders, CIAP Document 102, Letter of Award dated 08 June
2011, and the Contractor's Final Bid Proposal dated 25 May 2011 issued to
and signed by the CONTRACTOR.
1.2 The Contract Documents are mutually complementary. What is noted in one
although not shown in the others shall be considered contained in all. In case
of conflict, the Contract Documents shall have the sequence of priority and
importance, prevailing over the other, in so far as their specific statement(s),
phrase(s), intent and requirements conflict:
1.2.1 Contract
1.2.2 Letter of Award (hereinafter referred to as
“LOA” together with its Annex A)
1.2.3 General Conditions of Contract
1.2.4 CIAP Document 102, Uniform General Conditions
of Contract for Private Construction
1.2.5 Bid Documents and/or Bid Bulletins
1.2.6 Technical Specifications
1.2.7 Plans and Drawings
1.2.8 Contractor’s Proposal
1.2.9 Instructions to Bidders.
ARTICLE II
SCOPE OF WORKS
2.1 The Project shall be divided into two (2) packages as follows:
Page 2 of 14
Package I shall be based on a design-build (“D/B”) project delivery
system with a guaranteed maximum price (“GMP”). The quantities set
out in Annex A of the LOA shall be guaranteed by the CONTRACTOR
and shall not be subject to remeasurement. For avoidance of doubt,
no claim for price escalation shall be entertained.
2.2 The CONTRACTOR shall properly execute the Works for the construction and
completion of the Project in strict accordance with the Contract Documents
and subject to all conditions and requirements of the OWNERS and other
related documents hereto attached and made integral parts of this Contract.
2.3 The Works comprise the scope of work as specified in the Scope of Works
attached to the CONTRACTOR’s Final Bid dated 25 May 2011, as well as any
revisions and alterations, as agreed to by both Parties, including any
additional works and/or change order approved by the OWNERS.
ARTICLE III
OWNERS’ REPRESENTATIVE
3.1 The OWNERS shall be represented in this Contract by its Project Manager,
Ascendas Services Philippines Corporation (hereinafter referred to as the
“Project Manager”).
3.2 The Project Manager shall be the authorized representative of the OWNERS
to oversee and coordinate the execution of the Project, either directly or
through properly authorized agents, such agents acting within the scope of
the particular duties assigned to them.
Page 3 of 14
ARTICLE IV
CONTRACT PRICE
4.1 The Contract Price is the total amount that the OWNERS are obligated to pay
the CONTRACTOR under this Contract for the execution and completion of
the Works. Each OWNER shall pay half of the Contract Price as well as all
amounts due to, and all billings from, the CONTRACTOR under this Contract.
All costs for the supply of materials, CONTRACTOR-owned or supplied labor,
supervision, vehicles, tools, equipment, labor, overhead, insurance
premiums, taxes, materials, scaffoldings, dewatering system, use of
equipment, fuel, oils, tools, including the cost of continence, overtime or
extra shift work, site and national income, personal and corporate taxes for
its employees, required bonds and insurance policies, testing of materials, all
permits, fees, temporary facilities, water and power requirements, and all
other costs necessary to properly complete the Works shall be for the
account of the CONTRACTOR.
4.2 The Contract Price as proposed by the CONTRACTOR and accepted by the
OWNERS to properly execute the Works to complete the Project is the
amount of Thirty Five Million Six Hundred Eighty Thousand
(PhP35,680,000.00), Philippine Currency, broken down as follows:
Unless otherwise authorized in this Contract, the Contract Price is not subject
to escalation for any reason whatsoever.
ARTICLE V
ADJUSTMENT IN LABOR COST
5.1 Except as provided in item b of Section 4.2 and strictly in accordance with
Section 2.1 (B), the CONTRACTOR shall not be granted any adjustment in the
Contract Price in case of any government legislated change in the minimum
wage, whether such legislated change be made before, during or after the
commencement of this Contract or the Works required herein. The
CONTRACTOR is deemed to have included all the costs for all activities of the
CONTRACTOR on schedule during the period(s) in which the possible change
in minimum wage will take effect. Any claim for adjustment due to change in
minimum wages shall not be entertained whatsoever.
Page 4 of 14
ARTICLE VI
SCHEDULE OF PAYMENT
6.2 The CONTRACTOR shall apply for progress payments for such portion of the
Works it shall have already accomplished in accordance with the construction
schedule in Article VII herein below. The application for progress payments
shall be submitted to the OWNERS through the Project Manager once a
month and not later than the last day of the month. Payment shall be made
to the CONTRACTOR within thirty (30) days after the presentation of the
corresponding invoice or statement of account and the approval thereof by
the Project Manager.
6.3 The OWNERS shall retain a sum equivalent to ten percent (10%) of the
Contract Price (hereinafter referred to as the "Retention Sum"), which
includes all progress payments. The Retention Sum shall be released to the
CONTRACTOR in accordance with Article IX.
6.4 If during the period of construction, there shall be other forms of financial
accommodations or advances made to the CONTRACTOR or collectibles due
to the OWNERS from the CONTRACTOR, the same shall be effected as
outright deductions from any and all payable to the CONTRACTOR.
6.5 Notwithstanding the aforestated conditions, the OWNERS shall have the right
to withhold any payments due to the CONTRACTOR in the event that a
legitimate claim against the CONTRACTOR is made and is coursed through
the OWNERS by a party for the payment of labor, services, supplies and/or
materials, or for rentals for the use of tools and equipment, or in case of non-
compliance or defective or irregular compliance with any of the
CONTRACTOR's obligations under the Contract Documents. The OWNERS
shall release the amounts withheld after the CONTRACTOR shall have settled
or rectified such claims, defects, and other obligations. Article VIII herein
below shall apply.
6.6 The payments, including the release of the last progress payment by the
OWNERS to the CONTRACTOR, shall not be construed as admission by the
OWNERS that the CONTRACTOR has satisfactorily performed or is
satisfactorily performing the Works in accordance with the Contract
Documents, or that such Works or any part thereof is free from defects of
any kind, hidden or otherwise, or that the CONTRACTOR is not guilty of
violating the Contract Documents, or that the CONTRACTOR is complying or
Page 5 of 14
has complied with the provisions, terms and conditions of the Contract
Documents and of its obligations hereunder.
6.7 Before the last progress payment is made, the CONTRACTOR shall, aside from
the specific requirements in the Contract Documents, submit the following:
6.8 Each OWNER shall pay half of all amounts due to the CONTRACTOR under
this Contract. For this purpose, the CONTRACTOR shall bill each OWNER
separately.
ARTICLE VII
CONSTRUCTION PERIOD AND MILESTONE DATES
7.1 The CONTRACTOR shall commence with the Works upon receipt of the LOA
on the date specified therein. The CONTRACTOR shall complete the Works in
accordance with the plans, specifications and conditions specified in the
Contract Documents within the contract period of six (6) calendar months
(hereinafter referred to as the “Completion Period”).
7.2 Likewise, CONTRACTOR shall comply with and meet the milestone dates
specified in its submitted master construction program.
7.3 The Contract Period and the Completion Dates are inclusive of the Scope of
Works of the CONTRACTOR. Upon the completion of the Works required
under the Contract Documents to be performed in specific areas of the
project site, the CONTRACTOR shall make these areas accessible to other
specialty contractors hired by the OWNERS to perform the other contract
packages. By doing so, the CONTRACTOR shall not be solely responsible to
these areas.
7.4 The Completion Period shall be extended only when the OWNERS approve of
the CONTRACTOR’s submission of a written application for such extension.
The CONTRACTOR shall inform the OWNERS in writing of any event giving rise
Page 6 of 14
to excusable delay under the pertinent provisions of the Contract Documents
within five (5) days from the date it occurs.
7.5 Excusable delays are those falling under Force Majeure of Acts of God, which
include catastrophic earthquake, tidal wave, typhoons, flood, rebellion, war,
and other cataclysmic phenomenon or misfortune which is beyond the
prudence and foresight of the CONTRACTOR and which it could not prevent
by any means. Natural occurrences and other events that are within the
control of the CONTRACTOR and as provided for in GC-23 of the General
Conditions of Contract and Article 1.01 of CIAP Document 102, shall not be
considered for the purpose of adjusting the Contract Period. No reparation
shall be made to the CONTRACTOR for damages resulting therefrom. Claims
for time extensions of the Contract Period by reason of Force Majeure shall
be subject to the approval of the OWNERS, at no cost to the OWNERS.
ARTICLE VIII
LIQUIDATED DAMAGES
8.1 It is understood that time is the essence of this Contract. Upon failure of the
CONTRACTOR to complete the stages of the Project within the master
construction program stipulated under Article VII above, the CONTRACTOR
agrees to pay the OWNERS the amount equivalent to one tenth of one per
cent (1/10 of 1%) of the total contract amount for each and every calendar
day of delay (Sundays and regular/legal holidays included) up to a maximum
amount equivalent to ten percent (10%) of the Contract Price. Said amount
shall be considered as liquidated damages and not by way of penalty. It shall
be automatically deductible from any amount due or to become due to the
CONTRACTOR under this Contract or from any other contracts and
transactions entered into by the CONTRACTOR with the OWNERS and/or its
subsidiaries.
ARTICLE IX
GUARANTY
9.1 The CONTRACTOR guarantees the Works as well as the workmanship and the
materials supplied by it for a period of one (1) year from the date of the
issuance by the OWNERS of the Completion Certificate.
9.2 For the purpose of the above guaranty, the OWNERS shall retain the amount
allowed under Article VI from the CONTRACTOR's billing.
9.3 The OWNER may, upon representation by the CONTRACTOR and approval of
the OWNERS, release the amounts retained before the expiry of the one-year
guaranty period; provided that, the CONTRACTOR submits a Retention Bond
in favor of the OWNERS for an amount equivalent to the amount to be
released. Such Retention Bond shall be in force and effect during the
Page 7 of 14
warranty period and shall be hold for cancellation only upon written advice
by the OWNERS before its expiring date.
ARTICLE X
BONDS
10.1 The CONTRACTOR shall have delivered to the OWNERS the following bonds
and insurance policy issued jointly in favor of the OWNERS before
commencement of the Works:
It is understood that before these bonds and policy are cancelled or released,
the CONTRACTOR shall execute an affidavit to the effect that it has
performed all its duties under the Contract Documents and has paid all its
obligations due thereunder, including its obligations relating to the payment
of wages, materials, supplies, or equipment applied or used in the Project.
10.2 The Retention Bond shall be supplied in lieu of retention money being
withheld by the OWNERS on the condition stated in Article VI prior to release
of the Retention Sum. The Retention Bond, which shall serve to guarantee
Page 8 of 14
the performance of the warranty obligations of the CONTRACTOR, shall have
full force and effect of no less than one (1) year from the Completion Date
corresponding to the period of the CONTRACTOR's warranty.
ARTICLE XI
CONTRACTOR'S LIABILITY/INSURANCE
11.1 The workers employed in the Project shall be the CONTRACTOR's employees.
The CONTRACTOR shall be exclusively responsible to them and shall be liable
for any claim or damage resulting from any accident, injury or sickness they
may suffer while performing their duties. There shall be no employer-
employee relationship between them and the OWNERS. The CONTRACTOR
shall have all its employees properly covered under all legally required
benefit programs, including the Social Security System, Medicare and
Employees Compensation Fund and/or other life insurance programs.
11.2 The CONTRACTOR hereby holds the OWNERS free and harmless from any
claim for injury and damage caused to the person or the property of third
parties, including its representatives and employees. For this purpose, the
CARI mentioned in Section 10.1.3 shall be in place.
ARTICLE XII
TERMINATION OF CONTRACT AT OWNER'S CONVENIENCE
12.1 The OWNER reserves the right to terminate this Contract and/or take over
the Works upon the occurrences of any of the following events:
12.2 Should any one of the aforecited events occurs, the OWNERS shall have the
sole option to take over the remaining Works, with or without terminating
this Contract. Upon the exercise of such option by the OWNERS, the OWNERS
shall be entitled to call upon the CONTRACTOR's Performance Bond and the
Page 9 of 14
Downpayment Bond (if applicable) and withhold the payment of all amounts,
which would otherwise have been due to the CONTRACTOR. Additionally, the
applicable provisions of General Conditions of Contract 22 shall take effect.
ARTICLE XIII
CONTRACTOR'S REPRESENTATIONS AND WARRANTIES
13.1 The CONTRACTOR guarantees the Works as well as the workmanship and the
materials supplied by it for a period of one (1) year counted from the date of
the issuance of the Certificate of Acceptance by the OWNERS of the entire or
one hundred percent (100%) of the completed Works.
13.2 The CONTRACTOR warrants that it has inspected the project site; that it has
been fully informed of the conditions which affect the nature, extent and cost
of the Works; that the OWNERS shall in no way be responsible for any costs
or expenses which may develop on account of failure of the CONTRACTOR to
make an accurate examination of present or future factors that may affect
the cost of execution of Works.
13.3 The CONTRACTOR represents that the Contract Price accepted by the
OWNERS has taken into account the possible escalation in the cost of labor
arising from any cause except as provided for in Article V, or the cost of
CONTRACTOR-provided tools and equipment, or the escalation in the
foregoing costs by reason of any delay in completing the Works due to causes
directly or indirectly attributable to the national, provincial, city or municipal
government, or any agency, entity or official of the government, or any
company or person.
13.4 The CONTRACTOR warrants that it has sufficient operating capital to perform
and complete the Works without relying upon advances or payments from
the OWNERS; has sufficient and adequate equipment, tools and other
materials that may be needed in the Works; has the required knowledge,
experience and professional competence to undertake the Works; has
experienced, skilled and professionally equipped personnel to be assigned for
this purpose; that the materials to be used in the Project shall be the best
available or obtainable and shall conform to the specifications under the
Contract Documents; will follow such method or process that will best
accomplish the desired result; and will provide workmanship which is first
class.
13.5 The CONTRACTOR warrants that: (a) it is a corporation duly incorporated and
registered with the Securities and Exchange Commission; (b) its franchise to
exist as such or to engage in business has not been terminated, cancelled or
suspended; (c) it is not under investigation by any competent governmental
authority for the purpose of terminating, cancelling or suspending such
franchise; (d) its Board of Directors has approved this Contract; (e) the person
signing for the CONTRACTOR have been fully empowered and authorized to
Page 10 of 14
sign this Contract and the other Contract Documents; (f) all the obligations
incurred by the CONTRACTOR under the Contract Documents will not violate
any agreement binding upon it or any of its property and will not violate its
Article of Incorporation and By-Laws; (h) that it is not insolvent or in
imminent danger of insolvency; (i) there is no pending petition, action or
proceedings, whether judicial or extrajudicial, seeking to declare the
CONTRACTOR insolvent or to suspend its payment to creditors; (j) it does not
plan to suspend payments of its debts; and (k) until completion of the Works
and the expiry of the warranty period, there will be no action, petition or
proceeding initiated by the CONTRACTOR or by any person seeking to declare
the CONTRACTOR insolvent or to suspend payments of its debts.
ARTICLE XIV
TITLE TO THE WORKS
14.1 Upon completion of the Works, Title to the Works, all materials, and
equipment covered under this Contract and the Contract Documents shall be
deemed transferred to the OWNERS, free from all liens and encumbrances.
No Works, materials, or equipment shall be acquired by the CONTRACTOR.
ARTICLE XV
ARBITRATION
15.1 Any dispute arising in the course of the execution of this Contract by reason
of differences in interpretation of the Contract Documents which the
OWNERS and CONTRACTOR are unable to resolve between themselves, shall
be submitted by either party for resolution or decision, as provided for in
CIAP Document 102, to a Board of Arbitrators composed of three (3)
members, to be chosen as follows:
15.1.1 One (1) member each shall be chosen by the OWNERS and
CONTRACTOR. The said two (2) members, in turn, shall select a
third member acceptable to both of them. The decision of the
Board of Arbitrators shall be rendered within fifteen (15) days
from the first meeting of the Board. The decision of the Board of
Arbitrators when reached through the affirmative vote of at least
two (2) of its members shall be final and binding upon the
OWNERS and CONTRACTOR.
Page 11 of 14
15.2 It is hereby agreed that the submission of any matter to arbitration shall not
be reason for the CONTRACTOR to suspend the Works under this Contract
nor shall it affect the Contract Period set forth in Article VIII hereof, except
for the portion of the Works subject to arbitration.
ARTICLE XVI
OTHER CONDITIONS
16.1 The Contract Documents shall be binding upon the successors and assigns of
both Parties; provided that, the prior written consent of the OWNERS shall be
required for the assignment of this Contract by the CONTRACTOR.
16.2 If any provisions of this Contract shall be declared null and void by the court,
the remaining provisions shall remain in full force and effect.
16.3 When the extent of the Works originally contemplated under this Contract is
changed, the determination of the difference in value between the originally
envisaged amount of the Works and the changed work for the purpose of
adjusting the Contract Price shall be agreed upon in writing between the
OWNERS and CONTRACTOR.
16.4 The CONTRACTOR agrees not to sub-let or sub-contract any portion of this
Contract without the prior written consent of the OWNERS as stipulated in
Article 34.02 of CIAP Document 102.
16.6 The CONTRACTOR shall comply with all applicable laws, decrees, rules and
regulations that may be promulgated from time to time by governmental
authorities, and shall hold the OWNERS free and harmless from any liability
that may arise from the CONTRACTOR's violation thereof.
16.7 It is hereby agreed that the submission of any matter to arbitration shall not
be reason for the CONTRACTOR to suspend the Works under this Contract
nor shall it affect the Contract Period set forth in Article VIII hereof, except
for the portion of the Works subject to arbitration.
16.8 Nothing herein shall be deemed to constitute the Parties as partners, agents
or joint venturers nor constitute either Party the agent of the other Party or
otherwise entitle either Party to have authority to bind the other Party for
any purpose.
IN WITNESS WHEREOF, the Parties have caused the due execution of this
Construction Contract on the date and at the place first above-stated.
Page 12 of 14
OWNER: OWNER:
ASCENDAS BUSINESS PARK STA. ELENA PROPERTIES, INC.
CORPORATION By:
By:
CONTRACTOR:
J. C. RODRIGUEZ CONSTRUCTION CORPORATION
By:
_________________________ ___________________________
A C K N O W L E D G M E N T
- - - - - - - - - - - - - - -
Republic of the Philippines )
Taguig City, Metro Manila ) SS.
BEFORE ME, a Notary Public for and in ____________, Philippines, on this ____ day
of _______, personally appeared:
Page 13 of 14
who are personally known to me and who represented to me that they are the same
persons who executed the foregoing instrument and they acknowledged to me that
the same is their own free and voluntary act and deed, as well as that of the entities
represented herein.
IN WITNESS WHEREOF, I have hereunto set my hand on the day, year and place first
above-written.
NOTARY PUBLIC
Doc. No. ____;
Page No.____;
Book No.____;
Series of 2011.
Page 14 of 14