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• • 181ST ACTIVE PARK DRIVE APRIL 10,2005 ' I. The Contractor and the Surety,jointly and severally,bind themselves,their further notice the Owner shall be entitled to enforce any remedy available to the heirs, executors, administrators, successors and assigns to the Owner for the Owner. performance of the Construction Contact, which is incorporated herein by 6. After the Owner has terminated the Contractor's right to complete tl' reference. Construction Contract, and if the Surety elects to act under Subparagraph 4 2. If the Contractor perfonns the Construction Contract, the Surety and the 4.2,or 4.3 above,then the responsibilities of the Surety to the Owner shall not L. Contractor shall have no obligation under this Bond, except to participate in greater than those of the Contractor under the Construction Contract, and the conferences as provided in Subparagraph 3.1. responsibiHbea of the Owner to the Surety shall not be greater than those of the 3. If there is no Owner Default,the Surety's obligation under this Bond shall Owner under the Construction Connect. To the limit of the amount of this Bond, arise after: but subject to co.mdtmn by the Owner of the Balance of the Contract Price to 3.1. The Owner has notified the Contractor and the Surety at Its address mitigation of costs and damages on the Construction Contract, the Surety is described in Paragraph 10 below, that the Owner is considering obligated without duplication fon declaring a Contractor Default and has requested and attempted to 6.1. The responsibilities of the Contractor for correction of defective arrange a conference with the Contractor and the Surety to be held work and completion of the Construction Contract: not later than fifteen days after receipt of such notice to discuss 6.2. Additional legal, design professional and delay costs resulting methods of performing the Construction Contact. If the Owner, from the Connector's Default, and resulting from the actions or • the Contractor and the Surety agree, the Contractor shall be failure to act of the Surety under Paragraph 4: and • allowed a reasonable time to perform the Construction Contract, 6.3. Liquidated damages, or if no liquidated damages are specified in but such an agreement shall not waive the Owner's right, B any, the Construction Contract, actual damages caused by delayed subsequently to declare a Contractor Default: and performance or non-performance of the Contractor. 3.2. The Owner has declared a Contractor Default and formally 7. The Surety shall not be liable to the Owner or others for obligations of the terminated the Contractor's right to complete the contract. Such Contractor that are unrelated to the Construction Cohan,and the Balance of the Contractor Default shall not be declared earlier than twenty days Contract Price shall not be reduced or set off on account of any such unrelated • after the Contractor and the Surety have received notice as obligations. No right of action shall accrue on this Bond to any person or entity provided in Subparagraph 3.1: and other than the Owner or its heirs,executors,administrators,or successors. 3.3. The Owner has agreed to pay the Balance of the Contract Price to 8. The Surety hereby waives notice of any change,including changes of time, • the Surely in accordance with the terms of the Construction to the Construction Connect or to related subcontracts,purchase sodas and other Contract or to a contractor selected to perform the Construction obligations. Contract in accordance with the tams of the contract with the 9. Any proceeding, legal or equitable, under this Bond may be instituted in Owns. any court of competent jurisdiction in the location in which the work or part of 4. When the Owner has satisfied the conditions of Paragraph 3, the Surety the work is located and shall be instituted within two years after Contractor shall promptly and at the Surety's expense take one of the following actions: Default or within two years after the Contractor ceased working or within two 4.1, Arrange for the Contractor,with consent of the Owner,to perform yearn after the Surety refines or fails to perfonn its obligations under this Bond, • and complete the Corumatioi Contract: or whichever ocean Mc If the provisions of limitation available to sureties as a 4.2. Undertake to perform and complete the Construction Contract defense in die jurisdiction of the suit shall be applicable. itself,through its agents or through independent contactors: or 10. Notice to the Surety, the Owner or the Convector shall be mailed or 4.3. Obtain bids or negotiated proposals from qualified contractors delivered to the address shown on the signature page. acceptable to the Owner for a contract for performance and II, When this Bond has been furnished to comply with a statutory or other completion of the Construction Contract,arrange for a contract to legal requirement in the location where the construction was to be perforce be prepared for execution by the Owner and the contractor selected any provision in this Bond conflicting with said statutory or legal requirermc. with the Owner's concurrence,to be seared with performance and shall be deemed deleted herefrom and provisions conforming to such statutory or payment bonds executed by a qualified surety equivalent to the other legal requirement shall be deemed incorporated herein. The intent is that bonds issued on the Construction Contract, and pay to thc Owner this Bond shall be construed as a statutory bond and not as a common law bond. the amount of damages as described in Paragraph 6 in excess of the 12. Definitions. Balance of the Contract Price incurred by the Owner resulting from 12.1. Balance of the Contract Price: The total amount payable by the ' the Contractor's default: or Owner to the Contractor under the Construction Contract after all 4.4. Waive its right to perform and complete, arrange for completion, proper adjustments have been made including allowance to the • or obtain a new contractor and with reasonable promptness under Convects ofany amounts received or to be received by the Owner the circumstances: in settlement of insurance or other claims for damages to which the I. After investigation,determine the amount for which it may Contractor Ls entitled, reduced by all valid and proper payments be liable to the Owner and, as soon as practicable after the made to or on behalf of the Contractor under the Construction amount is determined,tender payment therefor to the Owner: Contract. or 12.2. Construction Contract: The agreement between the Owner and the 2. Deny liability in whole or in pat and notify the Owner citing Contactor identified on the signature page,including all Contract reasons therefor. Documents and changes thereto. 5. If the Surety does not proceed as provided in Paragraph 4 with reasonable 12.3. Contractor Default: Failure of the Contractor,which has neither promptness,the Surety shall be deemed to be in default on this Bond fifteen days been remedied nor waived,to perforin or otherwise to comply with after receipt of an additional written notice from the Owner to the Surety the tenor of the Construction Contract. demanding that the Surety perform its obligations under this Bond, and the 12.4. Owner Default: Failure of the Owner, which has neither been Owner shall be entitled to enforce any remedy available to the Owner. If the remedied nor waived, to pay the Contractor as required by the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the Consnction Contract or to perform and complete or comply with payment tendered or the Surely has denied liability,in whole or in pan.without the other term thereof. ' (FOR INFORMATION ONLY—Name,Address and Telephone) ' AGENT or BROKER: OWNER'S REPRESENTATIVE(Architect,Engineer or other party): I 00601-2 ' EJCDC No. 1910-28A(1984 Edition) Prepared through the joint efforts of the Surety Association of America,Engineers'Joint Contract Documents Committee,The Associated General Contractors of America,American Institute of Architects,American Subcontractors Association,and the Associated Specialty ' Contractors.