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1. Contractor and Surety,jointly and severally, bind themselves, their 6. After Owner has terminated Contractor's right to complete the
<br /> heirs, executors, administrators, successors, and assigns to Owner for the Contract,and if Surety elects to act under Paragraph 4.1,4.2,or 4.3 above,
<br /> performance of the Contract,which is incorporated herein by reference. then the responsibilities of Surety to Owner shall not be greater than those
<br /> of Contractor under the Contract, and the responsibilities of Owner to
<br /> 2. If Contractor performs the Contract, Surety and Contractor have no Surety shall not be greater than those of Owner under the Contract. To a
<br /> obligation under this Bond,except to participate in conferences as provided limit of the amount of this Bond,but subject to commitment by Owner of
<br /> in Paragraph 3.1. the Balance of the Contract Price to mitigation of costs and damages on the
<br /> 3. If there is no Owner Default, Surety's obligation under this Bond Contract,Surety is obligated without duplication for:
<br /> shall arise after: 6.1 The responsibilities of Contractor for correction of defective
<br /> 3.1 Owner has notified Contractor and Surety, at the addresses Work and completion of the Contract;
<br /> described in Paragraph 10 below, that Owner is considering 6.2 Additional legal,design professional,and delay costs resulting
<br /> declaring a Contractor Default and has requested and attempted from Contractor's Default, and resulting from the actions or
<br /> to arrange a conference with Contractor and Surety to be held failure to act of Surety under Paragraph 4;and
<br /> not later than 15 days after receipt of such notice to discuss 6.3 Liquidated damages, or if no liquidated damages are specified
<br /> methods of performing the Contract. If Owner,Contractor and in the Contract,actual damages caused by delayed performance
<br /> Surety agree, Contractor shall be allowed a reasonable time to or non-performance of Contractor.
<br /> perform the Contract, but such an agreement shall not waive 7. Surety shall not be liable to Owner or others for obligations of
<br /> Owner's right, if any, subsequently to declare a Contractor Contractor that are unrelated to the Contract, and the Balance of the
<br /> Default;and Contract Price shall not be reduced or set off on account of any such
<br /> 3.2 Owner has declared a Contractor Default and formally unrelated obligations.No right of action shall accrue on this Bond to any
<br /> terminated Contractor's right to complete the Contract. Such person or entity other than Owner or its heirs,executors,administrators,or
<br /> Contractor Default shall not be declared earlier than 20 days successors.
<br /> after Contractor and Surety have received notice as provided in
<br /> Paragraph 3.1;and 8. Surety hereby waives notice of any change, including changes of
<br /> 3.3 Owner has agreed to pay the Balance of the Contract Price to: time, to Contract or to related subcontracts, purchase orders, and other
<br /> 1. Surety in accordance with the terms of the Contract; obligations.
<br /> 2. Another contractor selected pursuant to Paragraph 4.3 to
<br /> perform the Contract. 9. Any proceeding,legal or equitable,under this Bond may be instituted
<br /> in any court of competent jurisdiction in the location in which the Work or
<br /> 4. When Owner has satisfied the conditions of Paragraph 3,Surety shall part of the Work is located and shall be instituted within two years after
<br /> promptly and at Surety's expense take one of the following actions: Contractor Default or within two years after Contractor ceased working or
<br /> within two years after Surety refuses or fails to perform its obligations
<br /> 4.1 Arrange for Contractor,with consent of Owner,to perform and under this Bond,whichever occurs first.If the provisions of this paragraph
<br /> complete the Contract;or are void or prohibited by law,the minimum period of limitation available
<br /> 4.2 Undertake to perform and complete the Contract itself,through to sureties as a defense in the jurisdiction of the suit shall be applicable.
<br /> its agents or through independent contractors;or
<br /> 4.3 Obtain bids or negotiated proposals from qualified contractors 10. Notice to Surety,Owner,or Contractor shall be mailed or delivered to
<br /> acceptable to Owner for a contract for performance and the address shown on the signature page.
<br /> completion of the Contract,arrange for a contract to be prepared
<br /> for execution by Owner and Contractor selected with Owner's 11. When this Bond has been furnished to comply with a statutory
<br /> concurrence, to be secured with performance and payment requirement in the location where the Contract was to be performed, any
<br /> bonds executed by a qualified surety equivalent to the bonds provision in this Bond conflicting with said statutory requirement shall be
<br /> issued on the Contract, and pay to Owner the amount of deemed deleted herefrom and provisions conforming to such statutory
<br /> damages as described in Paragraph 6 in excess of the Balance of requirement shall be deemed incorporated herein. The intent is that this
<br /> the Contract Price incurred by Owner resulting from Contractor Bond shall be construed as a statutory bond and not as a common law bond.
<br /> Default;or 12. Definitions.
<br /> 4.4 Waive its right to perform and complete, arrange for
<br /> completion, or obtain a new contractor and with reasonable 12.1 Balance of the Contract Price: The total amount payable by
<br /> promptness under the circumstances: Owner to Contractor under the Contract after all proper
<br /> 1. After investigation, determine the amount for which it adjustments have been made,including allowance to Contractor
<br /> may be liable to Owner and, as soon as practicable after of any amounts received or to be received by Owner in
<br /> the amount is determined, tender payment therefor to settlement of insurance or other Claims for damages to which
<br /> Owner;or Contractor is entitled,reduced by all valid and proper payments
<br /> 2. Deny liability in whole or in part and notify Owner citing made to or on behalf of Contractor under the Contract.
<br /> reasons therefor. 12.2 Contract: The agreement between Owner and Contractor
<br /> identified on the signature page, including all Contract
<br /> 5. If Surety does not proceed as provided in Paragraph 4 with reasonable Documents and changes thereto.
<br /> promptness, Surety shall be deemed to be in default on this Bond 15 days 12.3 Contractor Default: Failure of Contractor, which has neither
<br /> after receipt of an additional written notice from Owner to Surety been remedied nor waived,to perform or otherwise to comply
<br /> demanding that Surety perform its obligations under this Bond,and Owner with the terms of the Contract.
<br /> shall be entitled to enforce any remedy available to Owner. If Surety 12.4 Owner Default: Failure of Owner, which has neither been
<br /> proceeds as provided in Paragraph 4.4, and Owner refuses the payment remedied nor waived, to pay Contractor as required by the
<br /> tendered or Surety has denied liability,in whole or in part,without further Contract or to perform and complete or comply with the other
<br /> notice Owner shall be entitled to enforce any remedy available to Owner. terms thereof.
<br /> FOR INFORMATION ONLY-Name,Address and Telephone
<br /> Surety Agency or Broker
<br /> Owner's Representative(engineer or other party)
<br /> Performance Bond
<br /> 00 61 11-2
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