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<br />retainage and delay damages, if any, properly assessed against the Contractor, the
<br />Completing Contractor, or the Surety, permitted by the General Contract once the
<br />Remaining Work has achieved Final Completion. Final payment will be based on the
<br />Owner's final review, quantification and acceptance of the Remaining Work, valued in
<br />accordance with the unit and lump sum prices (if any) set under the General Contract, and
<br />in satisfaction of all other conditions precedent established under the General Contract for
<br />final payment. The Surety agrees to expend such of its own funds as may, from time to
<br />time, be necessary to pay for completion of the Remaining Work; provided, however, that
<br />the Surety's performance obligation, over and above the amount paid by the Owner and
<br />received by the Surety under this Agreement, shall in no event exceed, and it is hereby
<br />expressly limited to, the expenditure of the penal amount of the Performance Bond
<br />($905,447), as reduced by all amounts expended by the Surety to complete the
<br />Remaining Work and to satisfy all claims under and allowed by the Performance Bond.
<br />For each dollar the Surety so expends pursuant to the Performance Bond, the Surety shall
<br />receive a corresponding dollar-for-dollar reduction in the penal amount of the Performance
<br />Bond.
<br />
<br />13. Payment Bond and Payment Bond Claims. The Payment Bond shall
<br />remain in full force and effect in accordance with its terms and provisions. The total
<br />liability of the Surety under the Payment Bond is limited to and shall not exceed the penal
<br />amount of the Payment Bond in the amount of $905,447. For each dollar the Surety
<br />expends pursuant to the Payment Bond, the Surety shall receive a corresponding dollar-
<br />for-dollar reduction in the penal amount of the Payment Bond. In the event the Surety
<br />expends, out of its own funds, the full penal amount of the Payment Bond, Surety shall
<br />have no further obligation of any description arising out of, or in connection with the
<br />Payment Bond. All payments made by the Surety will be credited against the penal
<br />amount of the Payment Bond.
<br />
<br />The Surety agrees to investigate all payment claims made against it, but shall have
<br />the right to settle, compromise, defend, appeal, payor dispute such claims as it, in its sole
<br />and complete discretion, may deem appropriate. Except for the ten (10)0,10 retainage, or
<br />any other amounts which the Owner may withhold under the General Contract, the Owner
<br />shall not withhold any portion of the balance of the Contract Sum, on account of claims,
<br />liens, suits or demands by person or entities furnishing or alleging to have furnished labor
<br />and/or materials to the Project; the Surety shall defend, indemnify and hold harmless the
<br />Owner from any loss, including attorneys' fees, which may arise by virtue of such claims,
<br />liens, suits and demands, under and subject to the penal amount of the Performance
<br />Bond, as reduced by the payments made by the Surety pursuant thereto. Nothing in this
<br />Agreement constitutes a waiver of such penal amount or an increase in the liability of the
<br />Surety under the Performance Bond and Payment Bond.
<br />
<br />14. Applications for Payment. The Surety, through MacNeil, shall submit to the
<br />Owner whatever information or documentation is required regarding the Work performed
<br />under the General Contract, and stored materials, to conform to and support the
<br />
<br />TAKEOVER AGREEMENT - Page 5 of 9
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