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<br />01/18/2004 15:08 FAX 8545100702
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<br />TENEX_ENTERPRISES_INC,
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<br />~ 002/002
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<br />c Comracror and the: Surcl}'. jointly and $e\'e~l1y, bind thclIlllelves,
<br />iT hein, executors, administrators, successors and assigns to thc Owner for
<br />the performance of the Conslnlclion Contract, which ~ mCQtpOraced herein by
<br />rcfereocc:.
<br />2. If the Contractor pcrfonns the COn!tNedol1 Contract, lttc Surety and the
<br />COnttllctor shall bave no obligation UndCT this :Sond, cltcept to panicipare in
<br />confcrcnccs as provided in SUbpal1lgIllph 3.1.
<br />3. If there is no Owner Oefll\1l~, the Surety's obligation undcr this lIond shall
<br />arise after: .
<br />3. L The Owner has notified the Conrracror and the Surety al hs
<br />address desctlbed in Paragraph 10 below, rhat the OWDer is
<br />considering declari.JIg a Contractor Defaul~ and has requested ami
<br />attempted to mange a conference wlrh rhe Contractor" and the
<br />SUrety to be held not later than fifteen days after receipt of such
<br />notice to discllM methods of perform~ the Construction
<br />Contract. If the Owner, thc Contractor ~ ~e SureI}' agree, thc
<br />Contractor shaU be allowed a reasollab1e time lO pcrform me:
<br />ConstrucnoD Conmct, but &uch all aSRlcment shall no~ waive rhe
<br />Owner's right. If any, aubsequernly to declare a Contractor
<br />Defaul~: and
<br />3.2. The Owner has declared a Contractor Default and formally
<br />lermUlated lhll Concnetor's righr to complete the contract, Such
<br />COlllrllclOr Default shall not bc dcclarcd elltlier lban lWemy days
<br />after the Connaccor and lhe SurelY have received notice as
<br />provided in Subpangraph 3.1: and
<br />3.3. Tbe Owner us agreed to pay rhe Balance of the Contnet Price to
<br />lbe Surety in. aeeordance with the terms of the COlUlIUCtion
<br />Contract or to a comractor seleCted to perfOtm lhe COllstnlcnon
<br />Contract in accordance with the tcnns of the conrnet with the
<br />OWMr.
<br />4, When the Owner ha, satisfied the conditions of Pll1"agrapb 3, die SureI)'
<br />shall promptly and al die Surety's expense take one of the fonowing actions;
<br />4.1, Arrange faT the: Contractor, with consel1f of thc Owner, to
<br />pctform and complete the COIISlIUcuon Contracl: or
<br />4,2. Underrake 10 perform and complete the ConslJUction Contract
<br />Itself, through Its agenrs or througb indcpcnde:nl contractors: or
<br />4.3. Obtain bids Ot negotlall:d proposals from quallfied conlral:tors
<br />acceptible tg the Owner tor a contnlet for performance and
<br />completion of the ComttUctioll Contrac~. arrange tor a COnInlel ro
<br />be prepared for execution by the Owner and thc cODlractor
<br />selected with the Owner's cOllCUffence, to be secured with
<br />perfonnancc: and payment bo11ds executed by a qualified surel)'
<br />equivalem lO rhe bond, issued on the Constnlction COl\traCI, and
<br />pay to the Owner the BJI10\lnl of damages as described in
<br />Paragraph 6 in eJ;ceS5 of lbe Balance of the Contract Price
<br />incurred by the Owner resultillg from the Contractor's default:
<br />or
<br />4.4, Waive: its nibt to perform and complete, amange for compleno!'.
<br />or obral4 a rtew COl1tn1Clor and with reasonable promptness ulldor
<br />rbe circumstances:
<br />1. Afrer invesdgadon. detenniru: the amgunt for which Ir may
<br />be liable to the OWJICr and. as soon as practicable after \fu:
<br />amount is detennined, tender paymcl1f therefor tg tile
<br />Owner: pr
<br />2. Deny liability in whole or in part and notify rbe Owner
<br />citing reasons therefor.
<br />S. If the Sure:ly ~ nOI proceed as proYidcd in Paullraph 4 with reasonable
<br />prompmess, the SUrely shall be deemed to be in dcfault 011 this Bond fUleen
<br />days afll:r receipt of an additional wriltcn notice from the Owner co the SureI}'
<br />demanding that lbe Surety perfonn its obli!luion, \lDder tI1.is. Bond, and rhe
<br />Owner ,hall be enllded to enfon:e any remedy avaDable lO rhe Owner. If the
<br />SUTCty proceeds u provided in SUbparagraph 4.4. and the Owner refu5cs the
<br />paymelU tendered Dr the SUrety has denied liability, in whole or in pan,
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<br />wilhoUI funher notice the Owner sha.1I be entitled to enforce any remedy
<br />available to the Owner.
<br />6. After the Owner has terminated rh,e Contractor's rigbt to complete !be
<br />Construction COlUCact, and if the Surety elects to ace under SubpanB'TIph 4.1,
<br />4.2, or 4.3 abovr;, lben the responsibUlties of thc Surety 10 the Owner shall not
<br />be grealer than those of the ConlIllolor Ul)der the Construction Contract, and
<br />the responsiblliries of dJc Owner to the Surety shall not be grelrer than rhose of
<br />rhe Owner ullllcr the Construction Contracr. To the limit of rhe artlgum of this
<br />Bond, bUt subject to eornmilrl1e:nt by the Owner of the Balance: of the Conlfllct
<br />Price to mitigation of cOSts and damair;, on the Constnlction ContfllCt, the:
<br />SurelY is obligated withoul duplication for:
<br />6.1. The responslbilltics of tile Contractor fot cOrrection of defective
<br />work and completion of the ConstNClion Conllllc~
<br />6.2. Additional legal, design professional a.ml delay C:OStS r~lting
<br />from lbe: Contractor's Default, and reS\llting from tM actions or
<br />failure to act of the Surcty \Inder Plllllgtaph 4: and
<br />6,3. Liquidated damascs. or If no liquidated damaSC8 are Ipecmed Ut
<br />the Conslruction Contract, at;lWll damages caused by delayed
<br />performance Or non.performance of the Contractor.
<br />7, The SUfOty shall not be Hable to the Owner or other:s fot obligatiON of me
<br />Contl1lCIOr rhal are unrelalCd to lhc ConslJUction COlltIllet, aIld the Balaru:e of
<br />the Contracl Price &hall nol be reduced or set off on account of any such
<br />unrclatc4 obligations. No right of action shall aceNe on this Bond w any
<br />puson or endty orher than the OWner or irs heirs, executors. adminiStrators, or
<br />successors.
<br />8. The Surcty hereby waives notice of any change, including changcs of
<br />limr;. to the Consrrucdon COnlTllct or 10 related sUbCOntrllclS, purchase orders
<br />and other obligatioll5.
<br />9. Any proceeding, legal or equitable, under this Bond may be insdtUted in
<br />any court of competcnt jurisdiclion in the location in which the work or part of
<br />lIle \IOorlc u located and shall be InStlUlled within two years after ContIllctor
<br />Dc(auJt or within tWo yeats alter the Contl1lctor ceased wodeins' or within !WO
<br />years atrer the Surety refuses or fails lO perfomJ its obligations under this
<br />Bond, whichever occurs first. If the provisions ot Iimitalion available to
<br />sureties as a dcfe:lI5c in thr; jurisdicllon of the suit shall be applicable.
<br />10. Notice to the Surety, the Owncr or the Conrraclor shall be mailed or
<br />delivered to !he address slJown 'on rhe signamre page.
<br />11. When Ibis Bond has been furnished CO comply with a statutory or other
<br />Icgal requirement in the location where lbe COJlStnlcrion WIll to be performed,
<br />any provision in this 80nd contlicting with said Stlll\ltory or legal requiremcot
<br />Shllll be deemed deleted herd'rom and provisions contorming CO sl.Icll staturory
<br />or orher legal rcquirement shall be deemed lneorponted herein. The intent is
<br />that Ibis Bond sball be construed a, a statutory bond and lI(It as a conunon law
<br />bond.
<br />12. DefirutioDS.
<br />12.1. Balance of rhe COntraCf Price: Tho total aDtOUllt payable by the
<br />Owner to the Contractor under the Comtruction Contract after all
<br />proper adjusummrs have been madc, including allowance to rhe
<br />Contractor of any amounts received or CO bQ received by the
<br />Owner in settlement of insurance OT other claims for dlmlge. to
<br />which the COlltraelOr is cndl1~, reduced by all valid UId proper
<br />paymenu made to or on behalf of the Contraclor \Inder the
<br />COlQtruction Comnct,
<br />12.2. Construction Contract: The agreement between the Owner and,
<br />the COlUnelor identified on the signature page, including all J
<br />Contract Documen13 and changes thereto.
<br />12.3. Cgnlractor DefauIr: Failure of the Conrractor, which has neither
<br />been TCQlcdie:d nor waived. to perform or olberwise (0 comply
<br />with the terms of me Constl'\lction Contract.
<br />12.4. OWllc:r Defawr: Failure of the Owner. which lias neither beell
<br />remedied nor wait'cd, 10 pay tho Contractor as required by the
<br />Consrmction Contner or to perform and complcte or CClJl1ply with
<br />thc othcr fl:nns 1hereof.
<br />
<br />(FOR INFORMATION ONLY-NameAdclress and Telephone)
<br />AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Bngineer or other party):
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<br />00601.2
<br />BICDC No. 191o-28A (1984 Bdition)
<br />Prepared through the JOIN effolU of lbe Surety Association of America, Enginctts' Joint Contract Oocumems Committee, The ASSociated
<br />Gr;nend Contnetors of Am.rica. American Institute of Architects, American SubconrrlU:tors Association, and the Associated Specialty
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<br />03-4122.B
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