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1. The Contractor and the Surety, jointly and severally, bind Owner shall be entitled to enforce any remedy available to the Owner.
<br /> themselves, their heirs, executors, administrators, successors and 6. After the Owner has terminated the Contractor's right to complete
<br /> assigns to the Owner for the performance of the Construction Contract, the Construction Contract, and if the Surety elects to act under
<br /> which is incorporated herein by reference. Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the
<br /> 2. If the Contractor performs the Construction Contract,the Surety and Surety to the Owner shall not be greater than those of the Contractor
<br /> the Contractor shall have no obligation under this Bond, except to under the Construction Contract, and the responsibilities of the Owner to
<br /> participate in conferences as provided in Subparagraph 3.1. the Surety shall not be greater than those of the Owner under the
<br /> 3. If there is no Owner Default,the Surety's obligation under this Bond Construction Contract. To the limit of the amount of this Bond, but
<br /> shall arise after: subject to commitment by the Owner of the Balance of the Contract Price
<br /> 3.1. The Owner has notified the Contractor and the Surety at its to mitigation of costs and damages on the Construction Contract, the
<br /> address described in Paragraph 10 below,that the Owner is Surety is obligated without duplication for:
<br /> considering declaring a Contractor Default and has 6.1. The responsibilities of the Contractor for correction of
<br /> requested and attempted to arrange a conference with the defective work and completion of the Construction Contract:
<br /> Contractor and the Surety to be held not later than fifteen 6.2. Additional legal, design professional and delay costs
<br /> days after receipt of such notice to discuss methods of resulting from the Contractor's Default, and resulting from
<br /> performing the Construction Contract. If the Owner, the the actions or failure to act of the Surety under Paragraph 4:
<br /> Contractor and the Surety agree, the Contractor shall be and
<br /> allowed a reasonable time to perform the Construction 6.3. Liquidated damages, or if no liquidated damages are
<br /> Contract, but such an agreement shall not waive the specified in the Construction Contract, actual damages
<br /> Owner's right, if any, subsequently to declare a Contractor caused by delayed performance or nonperformance of the
<br /> Default: and Contractor.
<br /> 3.2. The Owner has declared a Contractor Default and formally 7. The Surety shall not be liable to the Owner or others for obligations
<br /> terminated the Contractor's right to complete the contract. of the Contractor that are unrelated to the Construction Contract, and the
<br /> Such Contractor Default shall not be declared earlier than Balance of the Contract Price shall not be reduced or set off on account
<br /> twenty days after the Contractor and the Surety have of any such unrelated obligations. No right of action shall accrue on this
<br /> received notice as provided in Subparagraph 3.1: and Bond to any person or entity other than the Owner or its heirs,executors,
<br /> 3.3. The Owner has agreed to pay the Balance of the Contract administrators,or successors.
<br /> Price to the Surety in accordance with the terms of the 8. The Surety hereby waives notice of any change, including changes
<br /> Construction Contract or to a contractor selected to perform of time,to the Construction Contract or to related subcontracts.purchase
<br /> the Construction Contract in accordance with the terms of orders and other obligations.
<br /> the contract with the Owner. 9. Any proceeding, legal or equitable, under this Bond may be
<br /> 4. When the Owner has satisfied the conditions of Paragraph 3, the instituted in any court of competent jurisdiction in the location in which the
<br /> Surety shall promptly and at the Surety's expense take one of the work or part of the work is located and shall be instituted within two years
<br /> following actions: after Contractor Default or within two years after the Contractor ceased
<br /> 4.1. Arrange for the Contractor, with consent of the Owner, to working or within two years after the Surety refuses or fails to perform its
<br /> perform and complete the Construction Contract: or obligations under this Bond, whichever occurs first. If the provisions of
<br /> 4.2. Undertake to perform and complete the Construction limitation available to sureties as a defense in the jurisdiction of the suit
<br /> Contract itself, through its agents or through independent shall be applicable.
<br /> contractors: or 10. Notice to the Surety.the Owner or the Contractor shall be mailed or
<br /> 4.3. Obtain bids or negotiated proposals from qualified delivered to the address shown on the signature page.
<br /> contractors acceptable to the Owner for a contract for 11. When this Bond has been fumished to comply with a statutory or
<br /> performance and completion of the Construction Contract, other legal requirement in the location where the construction was to be
<br /> arrange for a contract to be prepared for execution by the performed, any provision in this Bond conflicting with said statutory or
<br /> Owner and the contractor selected with the Owner's legal requirement shall be deemed deleted herefrom and provisions
<br /> concurrence, to be secured with performance and payment conforming to such statutory or other legal requirement shall be deemed
<br /> bonds executed by a qualified surety equivalent to the bonds incorporated herein. The intent is that this Bond shall be construed as a
<br /> issued on the Construction Contract, and pay to the Owner statutory bond and not as a common law bond.
<br /> the amount of damages as described in Paragraph 6 in 12. Definitions.
<br /> excess of the Balance of the Contract Price incurred by the 12.1. Balance of the Contract Price: The total amount payable by
<br /> Owner resulting from the Contractor's default: or the Owner to the Contractor under the Construction Contract
<br /> 4.4. Waive its right to perform and complete. arrange for after all proper adjustments have been made, including
<br /> completion, or obtain a new contractor and with reasonable allowance to the Contractor of any amounts received or to
<br /> promptness under the circumstances: be received by the Owner in settlement of insurance or other
<br /> 1. After investigation, determine the amount for which it claims for damages to which the Contractor is entitled,
<br /> may be liable to the Owner and, as soon as practicable reduced by all valid and proper payments made to or on
<br /> after the amount is determined, tender payment behalf of the Contractor under the Construction Contract.
<br /> therefor to the Owner: or 12.2. Construction Contract: The agreement between the Owner
<br /> 2. Deny liability in whole or in part and notify the Owner and the Contractor identified on the signature page,
<br /> citing reasons therefor. including all Contract Documents and changes thereto.
<br /> 5. If the Surety does not proceed as provided in Paragraph 4 with 12.3. Contractor Default: Failure of the Contractor, which has
<br /> reasonable promptness, the Surety shall be deemed to be in default on neither been remedied nor waived, to perform or otherwise
<br /> this Bond fifteen days after receipt of an additional written notice from the to comply with the terms of the Construction Contrail.
<br /> Owner to the Surety demanding that the Surety perform its obligations 12.4. Owner Default: Failure of the Owner, which has neither
<br /> under this Bond, and the Owner shall be entitled to enforce any remedy been remedied nor waived,to pay the Contractor as required
<br /> available to the Owner. If the Surety proceeds as provided in by the Construction Contract or to perform and complete or
<br /> Subparagraph 4.4, and the Owner refuses the payment tendered or the comply with the other terms thereof.
<br /> Surety has denied liability, in whole or in part, without further notice the
<br /> (FOR INFORMATION ONLY—Name, Address and Telephone)
<br /> AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or other party):
<br /> 08/12 00601-2 11-4179
<br /> FJCDC 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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