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1. The Provider and the Surety, jointly and severally, bind themselves, their
<br />heirs, executors, administrators, successors and assigns to the Owner for the
<br />performance of the Construction Contract, which is incorporated herein by
<br />reference.
<br />2. With respect to the Owner, this obligation shall be null and void if the
<br />Provider:
<br />2.1. Promptly makes payment, directly or indirectly, for all sums due
<br />Claimants, and
<br />2.2. Defends, indemnifies and holds harmless the Owner from all claims,
<br />demands, liens or suits by any person or entity who furnished labor,
<br />materials or equipment for use in the performance of the
<br />Construction Contract, provided the Owner has promptly notified
<br />the Provider and the Surety (at the address described in Paragraph
<br />12) of any claims, demands, liens or suits and tendered defense of
<br />such claims, demands, liens or suits to the Provider and the Surety,
<br />and provided there is no Owner Default.
<br />3. With respect to Claimants, this obligation shall be null and void if the
<br />Provider promptly makes payment, directly or indirectly, for all sums due.
<br />4. The 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 the
<br />Provider have given notice to the Surety (at the address described in
<br />Paragraph 12) and sent a copy, or notice thereof, to the Owner,
<br />stating that a claim is being made under this Bond and, with
<br />substantial accuracy, the amount of the claim.
<br />4.2. Claimants who do not have a direct contract with the Provider:
<br />1. Have furnished written notice to the Provider and sent a copy,
<br />or notice thereof, to the Owner, within 90 days after having
<br />last performed labor or last furnished materials or equipment
<br />included in the claim stating, with substantial accuracy, the
<br />amount of the claim and the name of the party to whom the
<br />materials were furnished or supplied or for whom the labor
<br />was done or performed: and
<br />2. Have either received a rejection in whole or in part from the
<br />Provider, or not received within 30 days of furnishing the
<br />above notice any communication from the Provider by which
<br />the Provider has indicated the claim will be paid directly or
<br />indirectly: and
<br />3. Not having been paid within the above 30 days, have sent a
<br />written notice to the Surety (at the address described in
<br />paragraph 12) and sent a copy, or notice thereof, to the
<br />Owner, stating that a claim is being made under this Bond and
<br />enclosing a copy of the previous written notice furnished to the
<br />Provider.
<br />5. If a notice required by Paragraph 4 is given by the Owner to the Provider
<br />or to the Surety, that is sufficient compliance.
<br />6. When the Claimant has satisfied the conditions of Paragraph 4, the Surety
<br />shall promptly and at the Surety's expense take the following actions:
<br />6.1. Send an answer to the Claimant, with a copy to the 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. The 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 good
<br />faith by the Surety.
<br />8. Amounts owned by the Owner to the Provider under the Construction
<br />Contract shall be used for the performance of the Construction Contract and to
<br />satisfy claims, if any, under any Construction Performance Bond. By the
<br />Provider furnishing and the Owner accepting this Bond, they agree that all
<br />funds earned by the Provider in the performance of the Construction Contract
<br />are dedicated to satisfy obligations of the Provider and the Surety under this
<br />Bond, subject to the Owner's priority to use the funds for the completion of the
<br />work.
<br />9. The Surety shall not be liable to the Owner, Claimants or others for
<br />obligations of the Provider that are unrelated to the Construction Contract. The
<br />Owner shall not be liable for payment of any costs or expenses of any Claimant
<br />under this Bond, and shall have under this Bond no obligations to make
<br />payments to, give notices on behalf of, or otherwise have obligations to
<br />Claimants under this Bond.
<br />10. The Surety hereby waives notice of any change, including changes of
<br />time, to the Construction Contract or to relate subcontracts, purchase orders
<br />and other 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 work
<br />or part of the work is located or after the expiration of one year from the date
<br />(1) on which the Claimant gave the notice required by Subparagraph 4.1 or
<br />Clause 4.2 (iii), or (2) on which the last labor or service was performed by
<br />anyone or the last materials or equipment were furnished by anyone under the
<br />construction Contract, whichever of (1) or (2) first occurs. If the provisions of
<br />this Paragraph are void or prohibited by law, the minimum period of limitation
<br />available to sureties as a defense in the jurisdiction of the suit shall be
<br />acceptable.
<br />12. Notice to the Surety, the Owner or the Provider shall be mailed or
<br />delivered to the address shown on the signature page. Actual receipt of notice
<br />by Surety, the Owner or the Provider, however accomplished, shall be
<br />sufficient compliance as of the date received at the address shown on the
<br />signature page.
<br />13. When this Bond has been furnished to comply with a statutory or other
<br />legal requirement in the location where the construction was to be performed,
<br />any provision in this Bond conflicting with said statutory or legal requirement
<br />shall be deemed deleted herefrom and provisions conforming to such statutory
<br />or other legal requirement shall be deemed incorporated herein. The intent is,
<br />that this Bond shall be construed as a statutory bond and not as a common law
<br />bond.
<br />14. Upon request by any person or entity appearing to be a potential
<br />beneficiary of this Bond, the Provider 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 the
<br />Provider or with a subprovider of the Provider to furnish labor,
<br />materials or equipment for use in the performance of the Contract.
<br />The intent of this Bond shall be to include without limitation in the
<br />terms "labor, materials or equipment" that part of water, gas,
<br />power, light, heat, oil, gasoline, telephone service or rental
<br />equipment used in the Construction Contract, architectural and
<br />engineering services required for performance of the work of the
<br />Provider and the Provider's subproviders, and all other items for
<br />which a mechanic's lien may be asserted in the jurisdiction where
<br />the labor, materials or equipment were furnished.
<br />15.2. Construction Contract: The agreement between the Owner and the
<br />Provider identified on the signature page, including all Contract
<br />Documents and changes thereto.
<br />15.3.Owner Default: Failure of the Owner, which has neither been
<br />remedied nor waived, to pay the Provider as required by the
<br />Construction Contract or to perform and complete or comply with
<br />the other terms thereof.
<br />(FOR INFORMATION ONLY —Name, Address and Telephone)
<br />AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or other party):
<br />00600 -2
<br />EJCDC No. 1910 -28B (1984 Edition)
<br />Prepared through the joint efforts of the Surety Association of America, Engineers' Joint Contract Documents Committee, The Associated
<br />General Providers of America, American Institute of Architects, American Subproviders Association, and the Associated Specialty
<br />Providers.
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