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<br />. I. The Contractor and the Surety, jointly and severally, bind themselves, their
<br />heirs, executors, administrators, successors and assigns to the Owner lor the
<br />performance orthe Construction Contract, which is incorporated herein by
<br />re lerence.
<br />2. I I' the Contractor performs the Construction Contract, the Surety and the
<br />Contractor shall have no obligation under this Bond, except to patticipate in
<br />conlerences as provided in Subparagraph 3.1.
<br />3. Iftherc is no Owner Derault, the Surety's obligation under this Bond shall
<br />arise aileI':
<br />3.1. The Owncr has notified the Contractor and the Surety at its addrcss
<br />dcscribed in Paragraph 10 below, that the Owner is considering
<br />declaring a Contractor Default allll has requested and attempted to
<br />alTange a conference with the Contractor and the Surety to be held
<br />not later than filleen days aileI' receipt or such notice to discuss
<br />methods of perrorming the Construction Contract. If the Owner,
<br />the Contractor and the Surety agree, the Contractor shall be
<br />allowed a reasonable time to per1ilrll1 the Construction Contract,
<br />but such an agreement shall not waive the Owner's right, ir any,
<br />subsequently to deelare a Contractor Default: and
<br />3.2. The Owner has declared a Contractor Default and formally
<br />telminated the Contractor's right to complete the contract. Such
<br />Contractor DelllUlt shall not be declared earlier than twenty days
<br />after the Contractor and the Surety have received notice as
<br />provided in Subparagmph 3, I: and
<br />3.3. The Owner has agreed to pay the Balance or the Contract Price to
<br />the Surety in accordance with the terms or the Construction
<br />Contract or to a contractor selected to perform the Constmction
<br />Contract in accordance with the terms of the contract with the
<br />Owner.
<br />4. When the Owner has satisfied the conditions of Pam graph 3, the Surety
<br />shall promptly and at the Surety's expense take one of the lollowing actions:
<br />4.1. Ammge lor the Contmctur, with consent orthe Owner, to perform
<br />and complete the Construction Contracl: or
<br />4.2. Undcltake to perf 01111 and complete the Construction Contmct
<br />itsell; through its agents or through independent contractors: or
<br />4.3. Obtain bids or negotiated proposals from qualified
<br />contractors acceptable to the Owner for a contract 1'01'
<br />performance and complction of the Construction Contract,
<br />an-ange for a contract to be prepared for execntion by the Owner
<br />and the contl'llctor selected with the Owner's concun-cnce, to be
<br />secured with perfo11nance and payment bonds executed by a
<br />qualified surety equivalent to the bonds issued on the
<br />Construction Contract, and pay to the Owner the amount of
<br />damages as described in Paragraph 6 in excess of the Balance or the
<br />Contract Price inculTed by the Owner resulting from the Contractor's
<br />delaull: or
<br />4.4. Waive its right to perform and complete, arrange for completion,
<br />or obtain a nell' contractor and with reasonable promptness under
<br />the circumstanccs:
<br />I. Aller investigation, determine the amount for which it may
<br />be liable to the Owner and, as soon as practicable aileI' the
<br />amount is determined, tender payment thereliJr to the Owner:
<br />or
<br />2. Deny liability in whole or in patt and notify the Owner citing
<br />reasons therelilr.
<br />5. fr Ute Surety does not proceed as provided in Paragraph 4 with reasonable
<br />promptness, the Surety shall be deemed to be in delault on this Bond lI11een days
<br />aileI' receipt of an additional written notice rrom the Owner to the Surety
<br />demanding that the Surety pcrform its obligations undcr this Bond, and thc
<br />Owner shall be entitled to enforce any remedy available to the Owner. II' the
<br />Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the
<br />payment tendered or the Surety has denied liability, in whole or in patt, witbout
<br />
<br />Iruther notice the Owner shall be entitled to enlorce any remedy available to the
<br />Owner.
<br />6. A Iler the Owner has tel1l1inated the Contractor's right to complete the
<br />Construction Contract, and ir the Surety elects to act under Subparagraph 4.1,
<br />4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be
<br />greater than those of the Contractor under the Construction Contmct. and the
<br />responsibilities of the Owner to the Surety shall not be greater Ulan those of the
<br />Owner under the Construction Contmct. To the limit of UlC amount of this Bond,
<br />but subject to commitment by the Owner of the Balance or the Contract Price to
<br />mitigation of costs and damages on the Construction Contract, the Surety is
<br />obligated without duplication for:
<br />6.1. The responsibilities or thc Contractor lilr correction or derectivc
<br />work and completion of the Construction Contracl:
<br />6.2. Additional legal, design professional and delay costs resulting
<br />from the Contractor's Delault, and rcsulting fi'om the actions or
<br />lailure to act orthe Surety under Paragraph 4: and
<br />6.3. Liquidated damages, or if no liquidated damages are speciried in
<br />the Construction Contract, actual damages causcd by delayed
<br />perlOlll1al1Ce or non-perlOl1l1anCe of the Contractor.
<br />7. The Surety shall not be liable to the Owner or others fbr obligations or the
<br />Contrdctor that are unrelated to the Construction Contmct, and the Balance or the
<br />Contract Price shall not be reduced or set off on account of any such unrelated
<br />obligations. No right or action shall accllle on this Bond to any person or entity
<br />other than the Owner or its heirs, executors, administl'lltors, or successors.
<br />8. The Surety hereby waives notice of any change, including changes or time,
<br />to the ConslIuction Contract or to related subcontracts, purchase orders and other
<br />obligations.
<br />9. Any proceeding, legal or equitable, under this Bond may be instituted in
<br />any court or competent jurisdiction in the location in which the work or p:ut or
<br />the work is located and shall be instituted within two years aller Contractor
<br />Dcf~lIIlt or within two years aller the Contractor ceascd working or within two
<br />years aileI' the Surety refrlses or fails to perf 01111 its obligations under this Bond,
<br />whichever occurs lirst. I I' the provisions of limitation available to sureties as a
<br />delense in the jurisdiction of the suit 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 />II. When this Bond has been fumished to comply with a statutory or other
<br />legal requirement in the location where the construction was to be perlimned,
<br />any provision in this Bond conllicting with said statutory or legal requirement
<br />shall be deemed deleted herelrom and pmvisions conlollning to such statutory or
<br />other legal requirement shall be deemed incolllOrated herein. The intent is that
<br />tbis Bond shall be construed as a statutOlY bond and not as a common law bond.
<br />12. Definitions.
<br />12.1. Balance of the Contract Price: The total amount payable by the
<br />Owner to the Contractor under the Constmction Contract allcr all
<br />proper adjustments have been made, including allowance to the
<br />Contractor of any amounts received or to be received by the Owner
<br />in settlement or insurance or other elaims lor damages to which the
<br />Contractor is entitled, reduced by all valid and proper payments
<br />made to or on behalf of the Contractor under the Construction
<br />Contract.
<br />12.2. Constlllction Contract: The agreement between the Owner and thc
<br />Contractor identified on the signature page, including all Contract
<br />Documcnts and changes thereto.
<br />12.3. Contractor Default: Failure of the Contractor, which has neither
<br />been rcmedied nor waived, to perfonn or othelwise to comply with
<br />the terms or the Constlllction Contract.
<br />12.4. Owncr Def~llIlt: Failure of the Owncr, which has neither becn
<br />remedied nor waived, to pay thc Contractor as required by the
<br />Constlllction ConlInet or to pcrlimu and complete or comply with
<br />the othcr terms thcreoI:
<br />
<br />(FOR INFORMATION ONLY-Name, Addrcss and Tclcphonc)
<br />AGENT or BROKER: OWNER'S REPRESENTATIVE (Architcct, Engincer or other party):
<br />
<br />EJCDC No. 191O-28A (1984 Edition)
<br />Prepared through the joint efforts or the Surely Association of America, Engineers' Juint Contract Documents Committee, The Associated
<br />General Contractors or America, American Institute of Architects, American Subcontractors Association, and the Associated Specialty
<br />Contmctors.
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