|
1. Contractor and Surety, jointly and severally, bind themselves, their
<br />heirs, executors, administrators, successors, and assigns to Owner to pay
<br />for labor, materials, and equipment furnished by Claimants for use in the
<br />performance of the Contract, which is incorporated herein by reference.
<br />2. With respect to Owner, this obligation shall be null and void if
<br />Contractor:
<br />2.1 Promptly makes payment, directly or indirectly, for all sums due
<br />Claimants, and
<br />2.2 Defends, indemnifies, and holds harmless Owner from all
<br />claims, demands, liens, or suits alleging non-payment by
<br />Contractor by any person or entity who furnished labor,
<br />materials, or equipment for use in the performance of the
<br />Contract, provided Owner has promptly notified Contractor and
<br />Surety (at the addresses described in Paragraph 12) of any
<br />claims, demands, liens, or suits and tendered defense of such
<br />claims, demands, liens, or suits to Contractor and Surety, and
<br />provided there is no Owner Default.
<br />3. With respect to Claimants, this obligation shall be null and void if
<br />Contractor promptly makes payment, directly or indirectly, for all sums
<br />due.
<br />4. Surety shall have no obligation to Claimants under this Bond until:
<br />4.1 Claimants who are employed by or have a direct contract with
<br />Contractor have given notice to Surety (at the addresses
<br />described in Paragraph 12) and sent a copy, or notice thereof, to
<br />Owner, stating that a claim is being made under this Bond and,
<br />with substantial accuracy, the amount of the claim.
<br />4.2 Claimants who do not have a direct contract with Contractor:
<br />1. Have furnished written notice to Contractor and sent a
<br />copy, or notice thereof, to Owner, within 90 days after
<br />having last performed labor or last furnished materials or
<br />equipment included in the claim stating, with substantial
<br />accuracy, the amount of the claim and the name of the
<br />party to whom the materials or equipment were furnished
<br />or supplied, or for whom the labor was done or performed;
<br />and
<br />2. Have either received a rejection in whole or in part from
<br />Contractor, or not received within 30 days of fumishing
<br />the above notice any communication from Contractor by
<br />which Contractor had indicated the claim will be paid
<br />directly or indirectly; and
<br />3. Not having been paid within the above 30 days, have sent
<br />a written notice to Surety and sent a copy, or notice
<br />thereof, to Owner, stating that a claim is being made under
<br />this Bond and enclosing a copy of the previous written
<br />notice furnished to Contractor.
<br />5. If a notice by a Claimant required by Paragraph 4 is provided by
<br />Owner to Contractor or to Surety, that is sufficient compliance.
<br />6. When a Claimant has satisfied the conditions of Paragraph 4, the
<br />Surety shall promptly and at Surety's expense take the following actions:
<br />6.1 Send an answer to that Claimant, with a copy to Owner, within
<br />45 days after receipt of the claim, stating the amounts that are
<br />undisputed and the basis for challenging any amounts that are
<br />disputed.
<br />6.2 Pay or arrange for payment of any undisputed amounts.
<br />7. Surety's total obligation shall not exceed the amount of this Bond,
<br />and the amount of this Bond shall be credited for any payments made in
<br />good faith by Surety.
<br />FOR INFORMATION ONLY — Name, Address and Telephone
<br />Surety Agency or Broker
<br />Owner's Representative (engineer or other party)
<br />8. Amounts owed by Owner to Contractor under the Contract shall be
<br />used for the performance of the Contract and to satisfy claims, if any, under
<br />any performance bond. By Contractor furnishing and Owner accepting this
<br />Bond, they agree that all funds eamed by Contractor in the performance of
<br />the Contract are dedicated to satisfy obligations of Contractor and Surety
<br />under this Bond, subject to Owner's priority to use the funds for the
<br />completion of the Work.
<br />9. Surety shall not be liable to Owner, Claimants, or others for
<br />obligations of Contractor that are unrelated to the Contract. Owner shall not
<br />be liable for payment of any costs or expenses of any Claimant under this
<br />Bond, and shall have under this Bond no obligations to make payments to,
<br />give notices on behalf of, or otherwise have obligations to Claimants under
<br />this Bond.
<br />10. Surety hereby waives notice of any change, including changes of
<br />time, to the Contract or to related Subcontracts, purchase orders and other
<br />obligations.
<br />11. No suit or action shall be commenced by a Claimant under this Bond
<br />other than in a court of competent jurisdiction in the location in which the
<br />Work or part of the Work is located or after the expiration of one year from
<br />the date (1) on which the Claimant gave the notice required by Paragraph
<br />4.1 or Paragraph 4.2.3, or (2) on which the last labor or service was
<br />performed by anyone or the last materials or equipment were furnished by
<br />anyone under the Construction Contract, whichever of (1) or (2) first
<br />occurs. If the provisions of this paragraph are void or prohibited by law, the
<br />minimum period of limitation available to sureties as a defense in the
<br />jurisdiction of the suit shall be applicable.
<br />12. Notice to Surety, Owner, or Contractor shall be mailed or delivered to
<br />the addresses shown on the signature page. Actual receipt of notice by
<br />Surety, Owner, or Contractor, however accomplished, shall be sufficient
<br />compliance as of the date received at the address shown on the signature
<br />page.
<br />13. When this Bond has been fumished to comply with a statutory
<br />requirement in the location where the Contract was to be performed, any
<br />provision in this Bond conflicting with said statutory requirement shall be
<br />deemed deleted herefrom and provisions conforming to such statutory
<br />requirement shall be deemed incorporated herein. The intent is that this
<br />Bond shall be construed as a statutory Bond and not as a common law
<br />bond.
<br />14. Upon request of any person or entity appearing to be a potential
<br />beneficiary of this Bond, Contractor shall promptly furnish a copy of this
<br />Bond or shall permit a copy to be made.
<br />15. Definitions
<br />15.1 Claimant: An individual or entity having a direct contract with
<br />Contractor, or with a first -tier subcontractor of Contractor, to
<br />furnish labor, materials, or equipment for use in the
<br />performance of the Contract. The intent of this Bond shall be to
<br />include without limitation in the terms "labor, materials or
<br />equipment" that part of water, gas, power, light, heat, oil,
<br />gasoline, telephone service, or rental equipment used in the
<br />Contract, architectural and engineering services required for
<br />performance of the Work of Contractor and Contractor's
<br />Subcontractors, and all other items for which a mechanic's lien
<br />may be asserted in the jurisdiction where the labor, materials, or
<br />equipment were furnished.
<br />15.2 Contract: The agreement between Owner and Contractor
<br />identified on the signature page, including all Contract
<br />Documents and changes thereto.
<br />15.3 Owner Default: Failure of Owner, which has neither been
<br />remedied nor waived, to pay Contractor as required by the
<br />Contract or to perform and complete or comply with the other
<br />terms thereof.
<br />Payment Bond
<br />00 6113-2
<br />
|