Loading...
HomeMy WebLinkAboutNortheast Asphalt IncBID BOND CITY OF OSHKOSH Contract Number 25-007,25-008 Bond Number N/A Date Bond Executed (Date of Contract or Later) 6/3/25 PRINCIPAL/CONTRACTOR (Legal Name and Business Address) NORTHEAST ASPHALT, INC. W6380 Design Drive Greenville, WI54942 SURETY(IES) (Legal Name(s) and Business Address(es)) WESTERN SURETY COMPANY 151 N. Franklin Street Chicago, IL 60606 OWNER (Legal Name and Business Address) CITY OF OSHKOSH 215 Church Avenue PO Box 1130 Oshkosh, Wisconsin 54903-1130 OBLIGATION Type of Organization ❑ Individual ❑ Partnership FLI Corporation State of Incorporation WI Penal Sum of Bond Five Percent of Amount bid (5% of Amount Bid) The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the amount of the penal sum identified above if the Owner accepts the bid of this Contractor within the time specified in the bid documents or within such time period as may be agreed upon between the Owner and the Contractor, and the Contractor shall fail to execute the Contract within five (5) business days of written notice to the Contractor and Surety of Owner's intent to make a claim upon this Bond. The Surety hereby waives any notice of an agreement between the Owner and Contractor to extend the time in which the Owner may accept the bid. If the Contractor either enters into a contract with Owner in accordance with the terms of the bid and gives such bond(s) that may be specified in the bidding documents for the faithful performance of the Contract and for the prompt payment of labor, materials and supplies furnished for the purpose thereof; or pays to the Owner the difference between the amount specified in the bid and such larger amount for which the Owner may in good faith contract with another party to perform the work covered in such bid, then the Surety and the Contractor shall have no obligation under this Bond. Notice to the Contractor or Surety shall be deemed to have been given: (i) upon delivery to an officer or person entitled to such notice, if hand delivered; or (ii) upon delivery if delivered by priority, registered or certified mail through the United States Postal Service; (iii) upon delivery by a commercial carrier that will certify the date and time of delivery; or (iv) upon transmission if by facsimile, email or other form of electronic transmission. Notices shall be provided to the Owner, Surety and/or Contractor at their address as specified on this Bond or to a facsimile, email or other electronic address that has been provided in writing to the other party to be used for this purpose. The laws of the State of Wisconsin shall govern the interpretation and construction of this Bond. Winnebago County shall be the venue for all disputes arising under this Bond. Any provision in this Bond that may conflict with statutory or other legal requirement shall be deemed deleted herefrom and provisions conforming to the statutory or other legal requirement shall be deemed incorporated herein. NORTHEAST ASPHALT, INC. Name of Principal/Contractor Title WESTERN SURETY COMPANY Name of Surety "FRET"' o SV ....... Y4 Title Kelly Cody, Attorney in Fact af°QZ"' VOp_"k— =W1` z€ 3i, SF AV ' °W�xx�wM` Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN -FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Kelly Cody, Roxanne Jensen, Marc Sacia, Individually of Green Bay, Wisconsin Trudy A. Szalewski, Brian Krause, Individually of Milwaukee, Wisconsin its true and lawful Attomey(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law and Resolutions printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 23rd day of May, 2023. "weir WESTERN SURETY COMPANY s� ... mQ� QPOgq'Z007&7 -� 4�.. •.ram ne l/^Jy OAK �WLarry Kasten, Vice President State of South Dakota County of Minnehaha I ss On this 23rd day of May, 2023, before me personally came Larry Kasten, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is a Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. .......... My commission expires M. BENT ,(R.OTARY PUBLIC/ March 2, 2026 +___1 + - & SOUTH o..A M. Bent, Notary Public CERTIFICATE I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By -Law and Resolutions of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this 3rd day of June, 2025. +>"WRET o WESTERN SURETY COMPANY sN 4oQ,voggr��;> W =� ` \SF A%' V L. Nelson, Assistant Secretary Form F4280-4-2023 Go to www.cnasurety.com > Owner / Obligee Services > Validate Bond Coverage, if you want to verify bond authenticity. Authorizing By -Laws and Resolutions ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the shareholders of the Company. Section 7. All bonds, policies, undertakings, Powers of Attorney, or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile. This Power of Attorney is signed by Larry Kasten, Vice President, who has been authorized pursuant to the above Bylaw to execute power of allomeys on behalf of Western Surety Company. This Power of Attorney may be signed by digital signature and sealed by a digital or otherwise electronic -formatted corporate seal under and by the authority of the following Resolution adopted by the Board of Directors of the Company by unanimous written consent dated the 27th day of April, 2022: "RESOLVED: That it is in the best interest of the Company to periodically ratify and confirm any corporate documents signed by digital signatures and to ratify and confirm the use of a digital or otherwise electronic -formatted corporate seal, each to be considered the act and deed of the Company." 71-IAIA 12 TM — 2010 Document A3 Payment Bond CONTRACTOR: (Name, legal status and address) NORTHEAST ASPHALT, INC. W6380 Des* gn Drive Greenville, WI 54942 OWNER: (Name, legal status and address) CITY OF OSHKOSH 215 Church Avenue Oshkosh, WI 54903-1130 CONSTRUCTION CONTRACT Date: June 12, 2025 Bond No. 30246538 SURETY: (Name, legal status and principal place of b usiness) WESTERN SURETY COMPANY 151 N. Franklin Street Chicago, IL 60606 Amount: Three Hundred Thirty Five Thousand Five Hundred Seventy Two and 00/100 Dollars ($ 335,572.00) Description: (Name and location) TENNIS COURT/PICKELLBALL/BASKETBALL COURT REHABILITATION — 44th PARALLEL PARK AND STEVENS PARK, Oshkosh, Wisconsin. Job #494023 BOND Date: June 24, 2025 (Not earlier than Construction Contract Date) Three Hundred Thirty Five Thousand Five Hundred Seventy Two and 00/100 Dollars Amount: ($ 335,572.00) Modifications to this Bond: M None ❑ See Section 18 Corporate Seal not required CONTRACTIRrASIOriNdtP,@-180.0120 3(EYRETY Company: (Corporate Seal) Company: (Corporate Seal) NORTHEAST ASPHALT, INC. /� WESTERN SURETY71,4 CO PAN Signature: /' ya Signature: Name -P>Y1,1CktX- Name Kelly dody,A orney-i -Fact and Title: Qr eC'— M-CL CtC)CA- and Title: (Any additional signatures appear on the last page of this Payment Bond.) (FOR INFORAdATION ONLY— Nanre, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: AON RISK SERVICES CENTRAL, INC. (Architect, Engineer or other party.) 10700 West Research Drive Milwaukee, WI 53226 (414) 271-6420 AIA Document A312TM — 2010. The American Institute of Architects. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. AIA Document A312-2010 combines two separate bonds, a Performance Bond and a Payment Bond, into one form. This is not a single combined Performance and Payment Bond. § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference, subject to the following terms. § 2 If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Section 13) of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety. § 4 When the Owner has satisfied the conditions in Section 3, the Surety shall promptly and at the Surety's expense defend, indemnify and hold harmless the Owner against a duly tendered claim, demand, lien or suit. § 5 The Surety's obligations to a Claimant under this Bond shall arise after the following: § 5.1 Claimants, who do not have a direct contract with the Contractor, .1 have furnished a written notice of non-payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim, and .2 have sent a Claim to the Surety (at the address described in Section 13). § 5.2 Claimants, who are employed by or have a direct contract with the Contractor, have sent a Claim to the Surety (at the address described in Section 13). § 6 If a notice of non-payment required by Section 5.1.1 is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.1. § 7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety's expense take the following actions: § 7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and § 7.2 Pay or arrange for payment of any undisputed amounts. § 7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Section 7.1 or Section 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. § 8 The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. § 9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. At Document A312TP' — 2010. The American Institute of Architects. § 10 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, or give notice on behalf of, Claimants or otherwise have any obligations to Claimants under this Bond. § 11 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. § 12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2, or (2) on which the last labor or servicewas performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 13 Notice and Claims to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, shall be sufficient compliance as of the date received. § 14 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. § 16 Definitions § 16.1 Claim. A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done, or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor, materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor, materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor, materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant; and .8 the total amount due and unpaid to the Claimant for labor, materials or equipment furnished as of the date of the Claim. § 16.2 Claimant. An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. § 16.3 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. AIA Document A31211^ — 2010. The American Institute of Architects § 16.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. § 16.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 17 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. § 18 Modifications to this bond are as follows: (Space is provided below for additional signatures of adcled parties, other than those appearing on the cover page) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: , Address: AIA Document A312TM — 2010. The American Institute of Architects. Signature: Name and Title: Address: , Attorney -in -Fact 8 Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN -FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Kelly Cody, Roxanne Jensen, Marc Sacia, Individually of Green Bay, Wisconsin Trudy A. Szalewski, Brian Krause, Individually of Milwaukee, Wisconsin its true and lawful Attomey(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law and Resolutions printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 23rd day of May, 2023. WESTERN SURETY COMPANY .oSVRET.. 0. �pP Oqq�°3S= t 2v "wrh °AK Larry Kasten, Vice President State of South Dakota ss County of Minnehaha On this 23rd day of May, 2023, before me personally came Larry Kasten, to me known, who, being by me duly swom, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is a Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires M.BENT NOTARY PUBLIC + March 2, 2026 i -T SOUTH DAKOTA SEAL i lwwtiurrrr4..t♦+.r..wt. .. M. Bent, Notary Public CERTIFICATE I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By -Law and Resolutions of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation thi�c'J"'- day of-FJ ` ,k 0%—)a'r ,aSyg...... WESTERN SURETY COMPANY Ink DKP, \ Y L. Nelson, Assistant Secretary Form F4280-4-2023 Go to www.cnasurety.com > Owner / Obligee Services > Validate Bond Coverage, if you want to verify bond authenticity. '1 AIA Document A312TM - 2010 Performance Bond CONTRACTOR: (Name, legal status and address) NORTHEAST ASPHALT, INC. W6380 Des' 'gn Drive Greenville, WI 54942 OWNER: (Name, legal status and address) CITY OF OSHKOSH 215 Church Avenue Oshkosh, WI 54903-1130 CONSTRUCTION CONTRACT Date: June 12, 2025 Bond No.30246538 SURETY: (Name, legal status and principal place of business) WESTERN SURETY COMPANY 151 N. Franklin Street Chicago, IL 60606 Amount: Three Hundred Thirty Five Thousand Five Hundred Seventy Two and 00/100 Dollars ($ 335,572.00) Description: (Name and location) TENNIS COURT/PICKELLBALUBASKETBALL COURT REHABILITATION —44th PARALLEL PARK AND STEVENS PARK, Oshkosh, Wisconsin. Job #494023 BOND Date: June 24, 2025 (Not earlier than Construction Contract Date) Three Hundred Thirty Five Thousand Five Hundred Seventy Two and 001100 Dollars Amount: ($ 335,572.00) Modifications to tl-ds Bond: IN None ❑ See Section 16 Corporate Seal not required CONTRACTOWBROM § 180.0120 SYO@ TY Company: (Corporate Seal) Company: (Corporate Seal) NORTHEAST ASPHALT, INC. WESTERN SURETY COMP NY Signature: Signature: Name Name Kelly body, Attorney -in -Fact and Title: and Title: (Any additional signatures appear on the last page of this Performance Bond.) (FOR INFORA14TION ONLY— Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: AON RISK SERVICES CENTRAL, INC. (Architect, Engineer or other party.) 10700 West Research Drive Milwaukee, WI 53226 (414) 271-6420 AIA Document A312TM — 2010. The American Institute of Architects. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. AIA Document A312-2010 combines two separate bonds, a Performance Bond and a Payment Bond, into one form. This is not a single combined Performance and Payment Bond. § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. § 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except when applicable to participate in a conference as provided in Section 3. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation under this Bond shall arise after .1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default. Such notice shall indicate whether the Owner is requesting a conference among the Owner, Contractor and Surety to discuss the Contractor's performance. If the Owner does not request a conference, the Surety may, within five (5) business days after receipt of the Owner's notice, request such a conference. If the Surety timely requests a conference, the Owner shall attend. Unless the Owner agrees otherwise, any conference requested under this Section 3.1 shall be held within ten (10) business days of the Surety's receipt of the Owner's notice. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety; and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. § 4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual prejudice. § 5 When the Owner has satisfied the conditions of Section 3, the Surety shall promptly and at the Surety's expense take one of the following actions: § 5.1 Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract; § 5.2 Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors; § 5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default; or § 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, detern ine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, make payment to the Owner; or .2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial. § 6 If the Surety does not proceed as provided in Section 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Section 5.4, and the Owner refuses the payment or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. AIA Document A3121m — 2010. The American Institute of Architects. § 7 If the Surety elects to act under Section 5.1, 5.2 or 5.3, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication, for .1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .2 additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Section 5; and .3 liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. § 8 If the Surety elects to act under Section 5.1, 5.3 or 5.4, the Surety's liability is limited to the amount of this Bond. § 9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, successors and assigns. § 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. § 11 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. § 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 14 Definitions § 14.1 Balance of the Contract Price. The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. § 14.2 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. § 14.3 Contractor Default. Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Construction Contract. § 14.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. § 14.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 15 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. AIA Document A312111 — 2010. The American Institute of Architects. 3 § 16 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties, other than those appearing on the corer page) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: Address: Signature: Name and Title: , Attorney -in -Fact Address: AIA Document A312TM — 2010. The American Institute of Architects. 4