|
<br />1 The Contractor and the Surety, vlntly and severally,
<br />bind themselves, their heirs, executors, administrators, suc-
<br />cessors and assigns to the Owner to pay for labor,
<br />materials and equipment furnished for use in the perfor-
<br />mance of the Construction Contract, which is incorporated
<br />herein by reference.
<br />
<br />2 With respect to the Owner, this obligation shall be null
<br />and void if the Contractor:
<br />
<br />2.1 Promptly makes payment, directly or indirectly,
<br />for all sums due Claimants, and
<br />
<br />2.2 Defends, indemnifies and holds harmless the
<br />Owner from claims, demands, liens or suits by any
<br />person or entity whose claim, demand, lien or suit is
<br />for the payment for labor, materials or equipment fur-
<br />nished for use in the performance of the Construction
<br />Contract, provided the Owner has promptly notified
<br />the Contractor and the Surety (at the address
<br />described in Paragraph 12) of any claims, demands,
<br />liens or suits and tendered defense of such claims,
<br />demands, liens or suits to the Contractor and the
<br />Surety, and provided there is no Owner Default.
<br />
<br />3 With respect to Claimants, this obligation shall be null
<br />and void if the Contractor promptly makes payment, directly
<br />or indirectly, for all sums due.
<br />
<br />4 The Surety shall have no obligation to Claimants under
<br />this Bond until:
<br />
<br />4.1 Claimants who are employed by or have a direct
<br />contract with the Contractor have given notice to the
<br />Surety (at the address described in Paragraph 12)
<br />and sent a copy, or notice thereof, to the Owner,
<br />stating that a claim is being made under this Bond
<br />and, with substantial accuracy, the amount of the
<br />claim.
<br />
<br />4.2 Claimants who do not have a direct contract with
<br />the Contractor:
<br />
<br />.1 Have furnished written notice to the Contractor
<br />and sent a copy, or notice thereof, to the
<br />Owner, within 90 days after having last per-
<br />formed labor or last furnished materials or
<br />equipment included in the claim stating, with
<br />substantial accuracy, the amount of the claim
<br />and the name of the party to whom the
<br />materials were furnished or supplied or for
<br />whom the labor was done or performed; and
<br />
<br />.2 Have either received a rejection in whole or in
<br />part from the Contractor, or not received within
<br />30 days of furnishing the above notice any
<br />communication from the Contractor by which
<br />the Contractor has indicated the claim will be
<br />paid directly or indirectly; and
<br />
<br />.3 Not having been paid within the above 30
<br />days, have sent a written notice to the Surety
<br />(at the address described in Paragraph 12)
<br />and sent a copy, or notice thereof, to the
<br />Owner, stating that a claim is being made
<br />under this Bond and enclosing a copy of the
<br />previous written notice furnished to the Con-
<br />tractor.
<br />
<br />5 If a notice required by Paragraph 4 is given by the
<br />Owner to the Contractor or to the Surety, that is sufficient
<br />compliance.
<br />
<br />6 When the Clah .....nt has satisfied the conditions of
<br />Paragraph 4, the Surety shall promptly and at the Surety's
<br />expense take the following actions:
<br />
<br />6.1 Send an answer to the Claimant, with a copy to the
<br />Owner, within 45 days after receipt of the claim, stating
<br />the amounts that are undisputed and the basis for chal-
<br />lenging any amounts that are disputed.
<br />
<br />6.2 Payor arrange for payment of any undisputed
<br />amounts.
<br />
<br />7 The Surety's total obligation shall not exceed the
<br />amount of this Bond, and the amount of this Bond shall
<br />be credited for any payments made in good faith by the
<br />Surety.
<br />
<br />8 Amounts owed by the Owner to the Contractor under
<br />the Construction Contract shall be used for the perfor-
<br />mance of the Construction Contract and to satisfy claims,
<br />if any, under any Construction Performance Bond. By the
<br />Contractor furnishing and the Owner accepting this Bond,
<br />they agree that all funds earned by the Contractor in the
<br />performance of the Construction Contract are dedicated
<br />to satisfy obligations of the Contractor and the Surety
<br />under this Bond, subject to the Owner's priority to use
<br />the funds for the completion of the work.
<br />
<br />9 The Surety shall not be liable to the Owner,
<br />Claimants or others for obligations of the Contractor that
<br />are unrelated to the Construction Contract. The Owner
<br />shall not be liable for payment of any costs or expenses
<br />of any Claimant under this Bond, and shall have under
<br />this Bond no obligations to make payments to, give
<br />notices on behalf of, or otherwise have obligations to
<br />Claimants under this Bond.
<br />
<br />10 The Surety hereby waives notice of any change, in-
<br />cluding changes of time, to the Construction Contract or
<br />to related subcontracts, purchase orders and other
<br />obligations.
<br />
<br />11 No suit or action shall be commenced by a Claimant
<br />under this Bond other than in a court of competent juris-
<br />diction in the location in which the work or part of the
<br />work is located or after the expiration of one year from
<br />the date (1) on which the Claimant gave the notice re-
<br />quired by Subparagraph 4.1 or Clause 4.2.3, or (2) on
<br />which the last labor or service was performed by anyone
<br />or the last materials or equipment were furnished by
<br />anyone under the Construction Contract, whichever of (1)
<br />or (2) first occurs. If the provisions of this Paragraph are
<br />void or prohibited by law, the minimum period of limita-
<br />tion available to sureties as a defense in the jurisdiction
<br />of the suit shall be applicable.
<br />
<br />12 Notice to the Surety, the Owner or the Contractor
<br />shall be mailed or delivered to the address shown on the
<br />signature page. Actual receipt of notice by Surety, the
<br />Owner or the Contractor, however accomplished, shall
<br />be sufficient compliance as of the date received at the
<br />address shown on the signature page.
<br />
<br />13 When this Bond has been furnished to comply with
<br />a statutory or other legal requirement in the location
<br />where the construction was to be performed,
<br />any provision in this Bond conflicting with said stat-
<br />utory or legal requirement shall be deemed deleted
<br />herefrom and provisions conforming to such statutory or
<br />other legal requirement shall be deemed incorporated
<br />herein. The intent is that this
<br />
<br />Printed in cooperation with The American Institute of Architects (AlA) by Willis. Willis vouches that the language in the document conforms
<br />exactly to the language used in AlA Document A312, December 1984 Edition. Third Printing March 1987 Performance and Payment Bond
<br />WC1853C
<br />
<br />5
<br />
<br />.~_....~...
<br />
|