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1. Bidder and Surety, jointly and severally, bind 5. Surety waives notice of and any and all defenses themselves, their heirs, executors, administrators, based on or arising out of any time extension to issue notice successors and assigns to pay to Owner upon default of of award agreed to in writing by Owner and Bidder,provided Bidder any difference between the total amount of Bidders that the total time for issuing notice of award including bid and the total amount of the bid of the next lowest, extensions shall not in the aggregate exceed 120 days from responsible and responsive bidder as determined by Owner Bid Due Date without Surety's written consent. for the Work required by the Contract Documents, provided that: 6. No suit or action shall be commenced under this Bond 1.1. If there is no such next lowest, responsible and prior to 30 calendar days after the notice of default, as responsive bidder, and Owner does not required in Paragraph 4 above, is received by Bidder and abandon the Project, then Bidder and Surety Surety and in no case later than one year after Bid Due shall pay to Owner the penal sum set forth on Date. the face of this Bond,and 1.2. In no event shall Bidders and Surety's obbgation 7. My suit or action under this Bond shall be hereunder exceed the penal sum set forth on commenced only in a court of competent jurisdiction located the face of this Bond. in the state in which the Project is located. 2. Default of Bidder shall occur upon the failure of Bidder 8. Notices required hereunder shall be in writing and to deliver within the time required by the Bidding Documents sent to Bidder and Surety at their respective addresses (or any extension thereof agreed to in writing by Owner)the shown on the face of this Bond. Such notices may be sent executed Agreement required by the Bidding Documents by personal delivery,commercial courier or by United States and any performance and payment bonds required by the Registered or Certified Mail, return receipt requested. Bidding Documents and Contract Documents. postage prepaid, and shall be deemed to be effective upon receipt by the party concerned. 3. This obligation shall be null and void if: 3.1. Owner accepts Bidders bid and Bidder delivers 9. Surety shall cause to be attached to this Bond a within the time required by the Bidding current and effective Power of Attorney evidencing the Documents (or any extension thereof agreed to authority of the officer,agent or representative who executed in writing by Owner) the executed Agreement this Bond on behalf of Surety to execute, seal and deliver required by the Bidding Documents and any such Bond and bind the Surety thereby. performance and payment bonds required by the Bidding Documents and Contract 10. This Bond is intended to conform to all applicable Documents,or statutory requirements. My applicable requirement of any 3.2. All bids are rejected by Owner,or applicable statute that has been omitted from this Bond shall 3.3. Owner fails to issue a notice of award to Bidder be deemed to be included herein as if set forth at length. If within the time specified in the Bidding any provision of this Bond conflicts with any applicable Documents (or any extension thereof agreed to provision of this Bond conflicts with any applicable provision in writing by Bidder and,if applicable,consented of any applicable statute, then the provision of said statute to by Surety when required by paragraph 5 shall govern and the remainder of this Bond that is not in hereof). conflict therewith shall continue in full force and effect. 4. Payment under this Bond will be due and payable 11. The term "bid"as used herein includes a bid, offer or upon default by Bidder and within 30 calendar days after proposal as applicable. receipt by Bidder and within 30 calendar days after receipt by Bidder and Surety of written notice of default from Owner, which notice will be given with reasonable promptness. identifying this Bond and the Project and including a statement of the amount due. 08/12 00401-2 11-4179