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1. The Contractor and Surety, jointly and severally, bind the Contract Price incurred by the Owner as a result of the
<br /> themselves, their heirs, executors, administrators, successors, and Contractor Default;or
<br /> assigns to the Owner for the performance of the Construction Contract,
<br /> which is incorporated herein by reference. 5.4 Waive its right to perform and complete, arrange for
<br /> completion, or obtain a new contractor, and with reasonable
<br /> 2. If the Contractor performs the Construction Contract, the Surety promptness under the circumstances:
<br /> and the Contractor shall have no obligation under this Bond, except
<br /> when applicable to participate in a conference as provided in 5.4.1 After investigation, determine the amount for
<br /> Paragraph 3. which it may be liable to the Owner and, as soon as
<br /> practicable after the amount is determined,make payment to
<br /> 3. If there is no Owner Default under the Construction Contract,the the Owner;or
<br /> Surety's obligation under this Bond shall arise after:
<br /> 5.4.2 Deny liability in whole or in part and notify the
<br /> 3.1 The Owner first provides notice to the Contractor and Owner,citing the reasons for denial.
<br /> the Surety that the Owner is considering declaring a Contractor
<br /> Default. Such notice shall indicate whether the Owner is 6. If the Surety does not proceed as provided in Paragraph 5 with
<br /> ' requesting a conference among the Owner,Contractor,and Surety reasonable promptness,the Surety shall be deemed to be in default on
<br /> to discuss the Contractor's performance. If the Owner does not this Bond seven days after receipt of an additional written notice from
<br /> request a conference, the Surety may, within five (5) business the Owner to the Surety demanding that the Surety perform its
<br /> days after receipt of the Owner's notice, request such a obligations under this Bond,and the Owner shall be entitled to enforce
<br /> ' conference. If the Surety timely requests a conference,the Owner any remedy available to the Owner. If the Surety proceeds as provided
<br /> shall attend. Unless the Owner agrees otherwise,any conference in Paragraph 5.4,and the Owner refuses the payment or the Surety has
<br /> requested under this Paragraph 3.1 shall be held within ten(10) denied liability,in whole or in part,without further notice the Owner
<br /> business days of the Surety's receipt of the Owner's notice. If the shall be entitled to enforce any remedy available to the Owner.
<br /> ' Owner,the Contractor,and the Surety agree,the Contractor shall
<br /> he allowed a reasonable time to perform the Construction 7. If the Surety elects to act under Paragraph 5.1, 5.2,or 5.3,then
<br /> Contract, but such an agreement shall not waive the Owner's the responsibilities of the Surety to the Owner shall not be greater than
<br /> right,if any,subsequently to declare a Contractor Default; those of the Contractor under the Construction Contract, and the
<br /> responsibilities of the Owner to the Surety shall not be greater than
<br /> 3.2 The Owner declares a Contractor Default, terminates those of the Owner under the Construction Contract. Subject to the
<br /> the Construction Contract and notifies the Surety;and commitment by the Owner to pay the Balance of the Contract Price,
<br /> ' the Surety is obligated,without duplication for:
<br /> 3.3 The Owner has agreed to pay the Balance of the
<br /> Contract Price in accordance with the terms of the Construction 7.1 the responsibilities of the Contractor for correction of
<br /> Contract to the Surety or to a contractor selected to perform the defective work and completion of the Construction Contract;
<br /> ' Construction Contract.
<br /> 7.2 additional legal, design professional, and delay costs
<br /> 4. Failure on the part of the Owner to comply with the notice resulting from the Contractor's Default, and resulting from the
<br /> requirement in Paragraph 3.1 shall not constitute a failure to comply actions or failure to act of the Surety under Paragraph 5;and
<br /> 1 with a condition precedent to the Surety's obligations, or release the
<br /> Surety from its obligations, except to the extent the Surety 7.3 liquidated damages, or if no liquidated damages are
<br /> demonstrates actual prejudice. specified in the Construction Contract,actual damages caused by
<br /> delayed performance or non-performance of the Contractor.
<br /> 5. When the Owner has satisfied the conditions of Paragraph 3,the
<br /> Surety shall promptly and at the Surety's expense take one of the g. If the Surety elects to act under Paragraph 5.1, 5.3, or 5.4, the
<br /> following actions: Surety's liability is limited to the amount of this Bond.
<br /> ' 5.1 Arrange for the Contractor, with the consent of the g, The Surety shall not be liable to the Owner or others for
<br /> Owner,to perform and complete the Construction Contract; obligations of the Contractor that are unrelated to the Construction
<br /> Contract,and the Balance of the Contract Price shall not be reduced or
<br /> 5.2 Undertake to perform and complete the Constriction set ofd'on account of any such unrelated obligations. No right of
<br /> Contract itself,through its agents or independent contractors; action shall accrue on this Bond to any person or entity other than the
<br /> Owner or its heirs,executors,administrators,successors,and assigns.
<br /> 5.3 Obtain bids or negotiated proposals from qualified
<br /> contractors acceptable to the Owner for a contract for 10. The Surety hereby waives notice of any change, including
<br /> performance and completion of the Construction Contract, changes of time, to the Construction Contract or to related
<br /> arrange for a contract to be prepared for execution by the Owner subcontracts,purchase orders,and other obligations.
<br /> and a contractor selected with the Owners concurrence, to be
<br /> ' secured with performance and payment bonds executed by a 11. Any proceeding, legal or equitable, under this Bond may be
<br /> qualified surety equivalent to the bonds issued on the instituted in any court of competent jurisdiction in the location in
<br /> Construction Contract, and pay to the Owner the amount of which the work or part of the work is located and shall be instituted
<br /> damages as described in Paragraph 7 in excess of the Balance of within two years after a declaration of Contractor Default or within
<br /> EJCDC C-610—Performance Bond
<br /> Published December 2010 by the Engineers Joint Contract Documents Committee.
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