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<br />1. The Contractor and the Surety, jointly and severally, bind
<br />themselves, their heirs, executors, administrators, successors and
<br />assigns to the Owner for the performance of the Construction Contract,
<br />which is incorporated herein by reference.
<br />2. If the Contractor performs the Construction Contract, the Surety and
<br />the Contractor shall have no obligation under this Bond, except to
<br />participate in conferences as provided in Subparagraph 3.1.
<br />3. If there is no Owner Default, the Surety's obligation under this Bond
<br />shall arise after:
<br />3,1. The Owner has notified the Contractor and the Surety at its
<br />address described in Paragraph 10 below, that the Owner is
<br />considering declaring a Contractor Default and has
<br />requested and attempted to arrange a conference with the
<br />Contractor and the Surety to be held not later than fifteen
<br />days after receipt of such notice to discuss methods of
<br />performing the Construction Contract. If the Owner, the
<br />Contractor and the Surety agree, the Contractor shall be
<br />allowed a reasonable time to perform the Construction
<br />Contract, but such an agreement shall not waive the
<br />Owner's right, if any, subsequently to declare a Contractor
<br />Default: and
<br />3,2. The Owner has declared a Contractor Default and formally
<br />terminated the Contractor's right to complete the contract.
<br />Such Contractor Default shall not be declared earlier than
<br />twenty days after the Contractor and the Surety have
<br />received notice as provided in Subparagraph 3.1: and
<br />3.3, The Owner has agreed to pay the Balance of the Contract
<br />Price to the Surety in accordance with the terms of the
<br />Construction Contract or to a contractor selected to perform
<br />the Construction Contract in accordance with the terms of
<br />the contract with the Owner.
<br />4. When the Owner has satisfied the conditions of Paragraph 3, the
<br />Surety shall promptly and at the Surety's expense take one of the
<br />following actions:
<br />4.1, Arrange for the Contractor, with consent of the Owner, to
<br />perform and complete the Construction Contract: or
<br />4,2. Undertake to perform and complete the Construction
<br />Contract itself, through its agents or through independent
<br />contractors: or
<br />4.3. Obtain bids or negotiated proposals from qualified
<br />contractors acceptable to the Owner for a contract for
<br />performance and completion of the Construction Contract,
<br />arrange for a contract to be prepared for execution by the
<br />Owner and the contractor selected with the Owner's
<br />concurrence, to be secured with performance and payment
<br />bonds executed by a qualified surety equivalent to the bonds
<br />issued on the Construction Contract, and pay to the Owner
<br />the amount of damages as described in Paragraph 6 in
<br />excess of the Balance of the Contract Price incurred by the
<br />Owner resulting from the Contractor's default: or
<br />4.4. Waive its right to perform and complete, arrange for
<br />completion, or obtain a new contractor and with reasonable
<br />promptness under the circumstances:
<br />1. After investigation, determine the amount for which it
<br />may be liable to the Owner and, as soon as practicable
<br />after the amount is determined, tender payment
<br />therefor to the Owner: or
<br />2. Deny liability in whole or in part and notify the Owner
<br />citing reasons therefor.
<br />5. If the Surety does not proceed as provided in Paragraph 4 with
<br />reasonable promptness, the Surety shall be deemed to be in default on
<br />this Bond fifteen days after receipt of an additional written notice from the
<br />Owner to the Surety demanding that the Surety perform its obligations
<br />under this Bond, and the Owner shall be entitled to enforce any remedy
<br />available to the Owner. If the Surety proceeds as provided in
<br />Subparagraph 4.4, and the Owner refuses the payment tendered or the
<br />Surety has denied liability, in whole or in part, without further notice the
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<br />Owner shall be entitled to enforce any remedy available to the Owner.
<br />6. After the Owner has terminated the Contractor's right to complete
<br />the Construction Contract, and if the Surety elects to act under
<br />Subparagraph 4.1, 4.2, or 4,3 above, then the responsibilities of the
<br />Surety to the Owner shall not be greater than those of the Contractor
<br />under the Construction Contract, and the responsibilities of the Owner to
<br />the Surety shall not be greater than those of the Owner under the
<br />Construction Contract. To the limit of the amount of this Bond, but
<br />subject to commitment by the Owner of the Balance of the Contract Price
<br />to mitigation of costs and damages on the Construction Contract, the
<br />Surety is obligated without duplication for:
<br />6.1, The responsibilities of the Contractor for correction of
<br />defective work and completion of the Construction Contract:
<br />6,2, Additional legal, design professional and delay costs
<br />resulting from the Contractor's Default, and resulting from
<br />the actions or failure to act of the Surety under Paragraph 4:
<br />and
<br />6.3. Liquidated damages, or if no liquidated damages are
<br />specified in the Construction Contract, actual damages
<br />caused by delayed performance or non-performance of the
<br />Contractor,
<br />7. The Surety shall not be liable to the Owner or others for obligations
<br />of the Contractor that are unrelated to the Construction Contract, and the
<br />Balance of the Contract Price shall not be reduced or set off on account
<br />of any such unrelated obligations. No right of action shall accrue on this
<br />Bond to any person or entity other than the Owner or its heirs, executors,
<br />administrators. or successors.
<br />8. The Surety hereby waives notice of any change, including changes
<br />of time, to the Construction Contract or to related subcontracts, purchase
<br />orders and other obligations,
<br />9, Any proceeding, legal or equitable, under this Bond may be
<br />instituted in any court of competent jurisdiction in the location in which the
<br />work or part of the work is located and shall be instituted within two years
<br />after Contractor Default or within two years after the Contractor ceased
<br />working or within two years after the Surety refuses or fails to perform its
<br />obligations under this Bond, whichever occurs first. If the provisions of
<br />limitation available to sureties as a defense in the jurisdiction of the suit
<br />shall be applicable,
<br />10. Notice to the Surety, the Owner or the Contractor shall be mailed or
<br />delivered to the address shown on the signature page,
<br />11. When this Bond has been furnished to comply with a statutory or
<br />other legal requirement in the location where the construction was to be
<br />performed, any provision in this Bond conflicting with said statutory or
<br />legal requirement shall be deemed deleted herefrom and provisions
<br />conforming to such statutory or other legal requirement shall be deemed
<br />incorporated herein. The intent is that this Bond shall be construed as a
<br />statutory bond and not as a common law bond,
<br />12. Definitions.
<br />12,1. Balance of the Contract Price: The total amount payable by
<br />the Owner to the Contractor under the Construction Contract
<br />after all proper adjustments have been made, including
<br />allowance to the Contractor of any amounts received or to
<br />be received by the Owner in settlement of insurance or other
<br />claims for damages to which the Contractor is entitled,
<br />reduced by all valid and proper payments made to or on
<br />behalf of the Contractor under the Construction Contract.
<br />12.2, Construction Contract: The agreement between the Owner
<br />and the Contractor identified on the signature page,
<br />including all Contract Documents and changes thereto,
<br />12.3. Contractor Default: Failure of the Contractor, which has
<br />neither been remedied nor waived, to perform or otherwise
<br />to comply with the terms of the Construction Contract.
<br />12.4. Owner Default: Failure of the Owner, which has neither
<br />been remedied nor waived, to pay the Contractor as required
<br />by the Construction Contract or to perform and complete or
<br />comply with the other terms thereof.
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<br />(FOR INFORMATION ONLY-Name, Address and Telephone)
<br />AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or other party):
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<br />03-4197
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<br />Final Version 6/07 00601-2
<br />EJCDC No. 1910-28A (1984 Edition)
<br />Prepared through the joint efforts of the Surety Association of America, Engineers' Joint Contract Documents Committee, The Associated
<br />General Contractors of America, American Institute of Architects, American Subcontractors Association, and the Associated Specialty
<br />Contractors.
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