Art. 104. Guarantees for the performance of works of significant value
1. In the case of contracts with general contractors of any amount and, where provided for in the call for tenders or the notice of invitation to tender, for tenders of an auction amount of more than 100 million euros, the successful tenderer shall present in the form of a security or bond issued by the parties referred to in Article 93 paragraph 3, in place of the final guarantee provided for in Article 103, a guarantee of the fulfilment of all contractual obligations and compensation for damage resulting from the possible failure of the obligations, referred to as a "effective fulfilment guarantee" and a conclusion guarantee for the work in the case of the termination of the contract stipulated by the Civil Code and this Code, called a "termination guarantee".
2. In the case of assigning jobs to a new party, the new party also provides the guarantees provided for in paragraph 1
3. The effective fulfilment guarantee shall be determined in accordance in the manner provided for in Article 103 paragraphs 1 and 2, and shall be equal to a fixed 5% of the contractual amount resulting from the non-application of the rebate increments referred to in Article 103 paragraph 1 and shall remain until the date of issue of the provisional test certificate or certificate of proper performance, or in any case up to 12 months from the date of completion of the works resulting from the relevant certificate.
4. The fiduciary “termination guarantee”, which is of an ancillary nature, works in cases of the termination of the contract provided by the Civil Code and this Code and is in the amount of 10% of the contractual amount, without prejudice to the fact that, if the amount in absolute value were to exceed 100 million euros, the guarantee would, however, be limited to 100 million euros.
5. The “termination” guarantee covers, within the limits of the damage actually incurred, the costs for the reassignment procedures by the contracting entity or the awarding party and the possible higher cost between the contractual amount resulting from the original award of the works and the contractual amount of the reassignment of the works, to which the sums of payments already made or to be made on the basis of the progress of work are added .
6. The “termination guarantee” is effective from the conclusion of the contract and up to the date of issue of the work completion certificate, when it terminates automatically. The “termination guarantee” shall cease automatically except for its enforced payment pursuant to paragraph 1, even after three months from the date of the reassignment of the works.
7. The guarantees in this Article expressly provide for the waiver of the right to enforce prior payment by the principal debtor and the waiver of the objection referred to in Article 1957, second paragraph of the Civil Code.
8. In the event of enforcement, the payment shall be made within 30 days, by simple written request from the contracting entity or the awarding party indicating the title for which the contracting entity or the awarding party is requesting the enforcement.
9 The policy forms relating to the fiduciary bonds referred to in paragraph 1 shall be adopted in the manner provided for in Article 103, paragraph 9.
10. The guarantees referred to in this Article and Articles 93 and 103 provide for the reimbursement of the contractor and the right of recourse against the contracting entity or the awarding party for any unjust enrichment and may be issued jointly by several guarantors. The guarantors designate an agent or delegate for relations with the contracting entity or the awarding party.
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