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<br />1. Bidder and Surety, jointly and severally, bind <br />themselves, their heirs, executors, administrators, <br />successors and assigns to pay to Owner upon default of <br />Bidder any difference between the total amount of Bidder's <br />bid and the total amount of the bid of the next lowest, <br />responsible and responsive bidder as determined by Owner <br />for the Work required by the Contract Documents, provided <br />that: <br />1.1. If there is no such next lowest, responsible and <br />responsive bidder, and Owner does not <br />abandon the Project, then Bidder and Surety <br />shall pay to Owner the penal sum set forth on <br />the face of this Bond, and <br />1.2. In no event shall Bidder's and Surety's obligation <br />hereunder exceed the penal sum set forth on <br />the face of this Bond. <br /> <br />2. Default of Bidder shall occur upon the failure of Bidder <br />to deliver within the time required by the Bidding Documents <br />(or any extension thereof agreed to in writing by Owner) the <br />executed Agreement required by the Bidding Documents <br />and any performance and payment bonds required by the <br />Bidding Documents and Contract Documents. <br /> <br />3. <br /> <br />This obligation shall be null and void if: <br />3.1. Owner accepts Bidder's bid and Bidder delivers <br />within the time required by the Bidding <br />Documents (or any extension thereof agreed to <br />in writing by Owner) the executed Agreement <br />required by the Bidding Documents and any <br />performance and payment bonds required by <br />the Bidding Documents and Contract <br />Documents, or <br />3.2. All bids are rejected by Owner, or <br />3.3. Owner fails to issue a notice of award to Bidder <br />within the time specified in the Bidding <br />Documents (or any extension thereof agreed to <br />in writing by Bidder and, if applicable, consented <br />to by Surety when required by paragraph 5 <br />hereof). <br /> <br />4. Payment under this Bond will be due and payable <br />upon default by Bidder and within 30 calendar days after <br />receipt by Bidder and within 30 calendar days after receipt <br />by Bidder and Surety of written notice of default from Owner, <br />which notice will be given with reasonable promptness, <br />identifying this Bond and the Project and including a <br />statement of the amount due. <br /> <br />5. Surety waives notice of and any and all defenses <br />based on or arising out of any time extension to issue notice <br />of award agreed to in writing by Owner and Bidder, provided <br />that the total time for issuing notice of award including <br />extensions shall not in the aggregate exceed 120 days from <br />Bid Due Date without Surety's written consent. <br /> <br />6. No suit or action shall be commenced under this Bond <br />prior to 30 calendar days after the notice of default, as <br />required in Paragraph 4 above, is received by Bidder and <br />Surety and in no case later than one year after Bid Due <br />Date. <br /> <br />7. Any suit or action under this Bond shall be <br />commenced only in a court of competent jurisdiction located <br />in the state in which the Project is located. <br /> <br />8. Notices required hereunder shall be in writing and <br />sent to Bidder and Surety at their respective addresses <br />shown on the face of this Bond. Such notices may be sent <br />by personal delivery, commercial courier or by United States <br />Registered or Certified Mail, return receipt requested, <br />postage pre-paid, and shall be deemed to be effective upon <br />receipt by the party concerned. <br /> <br />9. Surety shall cause to be attached to this Bond a <br />current and effective Power of Attorney evidencing the <br />authority of the officer, agent or representative who executed <br />this Bond on behalf of Surety to execute, seal and deliver <br />such Bond and bind the Surety thereby. <br /> <br />10. This Bond is intended to conform to all applicable <br />statutory requirements. Any applicable requirement of any <br />applicable statute that has been omitted from this Bond shall <br />be deemed to be included herein as if set forth at length. If <br />any provision of this Bond conflicts with any applicable <br />provision of this Bond conflicts with any applicable provision <br />of any applicable statute, then the provision of said statute <br />shall govern and the remainder of this Bond that is not in <br />conflict therewith shall continue in full force and effect. <br /> <br />11. The term "bid" as used herein includes a bid, offer or <br />proposal as applicable. <br /> <br />05/08 Final Version <br /> <br />00401-2 <br /> <br />05-4893 <br />