08-Performance Bond.docx

Project: LaMont Does Park Landscape Repair Contractor:

Design Professional: Munding Design, LLC Total Cost:

Term: 90 calendar days Acct. or P.O. #: 34-301-932100

PERFORMANCE BOND

KNOW ALL MEN BY THESE PRESENTS: that [insert name and address of Contractor] as Principal, hereinafter called CONTRACTOR, and [insert name and address of Surety] as Surety, hereinafter called SURETY, are held and firmly bond unto

City of Lafayette 1290 S. Public Road Lafayette, CO 80026 as Obligee, hereinafter called CITY, in the amount of _________________________________ Dollars ($_______________), for the payment whereof CONTRACTOR and SURETY bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

WHEREAS, CONTRACTOR has by written agreement dated ________________, 20__, entered into a Construction Contract with CITY for the following Project:

in accordance with Drawings and Specifications prepared by Munding Design, LLC, DESIGN PROFESSIONAL, whose address is: 302 E Geneseo St, Lafayette, CO 80026, which contract is by reference made a part hereof, and is hereinafter referred to as the Construction Contract.

NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if the CONTRACTOR performs the Construction Contract, then this obligation shall be null and void; otherwise, the SURETY and the CONTRACTOR shall have the following obligations:

1. If CITY is not in Default under the Construction Contract, SURETY's obligation under this Bond shall arise after:

1.1 CITY has notified CONTRACTOR and SURETY at its address listed on the first page hereof that CITY by seven days' written notice intends to terminate the services of CONTRACTOR or otherwise declare CONTRACTOR to be in Default of its obligations under the Construction Contract; and

1.2 CITY has declared CONTRACTOR to be in Default and formally terminated CONTRACTOR's right to complete the Construction Contract; and

1.3 CITY has agreed to pay the Unpaid Balance of the Contract Price to SURETY in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the Construction Contract with CITY.

2. When CITY has satisfied the conditions of paragraph 1, SURETY shall promptly and at SURETY's expense take one of the following actions:

2.1 Arrange for CONTRACTOR, with consent of the CITY, to perform and complete the Construction Contract; or

2.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or

2.3 Obtain bids or negotiated proposals from qualified contractors acceptable to CITY for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by CITY and the contractor selected with CITY's concurrence, to be secured with the performance and payment bonds executed by a qualified Surety equivalent to the Bonds issued on the Construction Contract, and paid to CITY the amount of damages as described in paragraph 4 in excess of the Unpaid Balance of the Contract Price incurred by CITY resulting from the CONTRACTOR's Default; or

2.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances, after investigation, determine the amount for which it is liable to CITY and, as soon as practicable after the amount is determined and approved by CITY, tender payment therefor to CITY.

3. If SURETY does not proceed as provided in paragraph 2 with reasonable promptness, SURETY shall be deemed to be in default on this Bond 15 days after receipt of an additional written notice from CITY to SURETY demanding that SURETY perform its obligations under this Bond, and CITY shall be entitled to enforce any remedy available to CITY. If SURETY proceeds as provided in subparagraph 2.4 and CITY refuses the payment tendered or SURETY has denied liability, in whole or in part, without further notice, CITY shall be entitled to enforce any remedy available to CITY.

4. After CITY has terminated CONTRACTOR's right to complete the Construction Contract, and if SURETY elects to act under subparagraph 2.1, 2.2, or 2.3 above, then the responsibilities of SURETY to CITY shall not be greater than those of CONTRACTOR under the Construction Contract, and the responsibilities of CITY to SURETY shall not be greater than those of CITY under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by CITY of the unpaid balance of the Contract Price to mitigation of costs and damages on the Construction Contract, SURETY is obligated without duplication for:

4.1 The responsibilities of CONTRACTOR for correction of defective work and completion of the Construction Contract; and

4.2 Additional legal, design professional and delay costs resulting from CONTRACTOR's Default, and resulting from the actions or failure to act of SURETY under paragraph 2; and

4.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of CONTRACTOR.

5. SURETY hereby waives notice of any change, including changes to the Contract Times, to the Construction Contract or to related subcontracts, purchase orders and other obligations.

6. 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 CITY declares CONTRACTOR to be in default or within two years after CONTRACTOR ceased working or within two years after 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 in the State of Colorado shall be applicable.

7. Any notice to the parties required under this Bond shall be in writing, delivered to the person designated below for the parties at the indicated address unless otherwise designated in writing. Only mailing by United States mail or hand-delivery shall be utilized. Facsimile and e-mail addresses are provided for convenience only.

Lafayette:

City of Lafayette 1290 South Public Road Lafayette, Colorado 80026 Attn: Casey Carlson Telephone: (303) 604-3541 Facsimile:

E-mail: Casey.Carlson@lafayetteco.gov

Contractor:

Attn:

Telephone:

Facsimile:

E-mail:

8. This Bond is to be governed by the laws of the State of Colorado.

9. Definitions.

9.1 Unpaid Balance of the Contract Price: The total amount payable by CITY to CONTRACTOR under the Construction Contract after all proper adjustments have been made, including allowance to CONTRACTOR of any amounts received or to be received by CITY in settlement of insurance or other claims for damages to which CONTRACTOR is entitled, reduced by all valid and proper payments made to or on behalf of CONTRACTOR under the Construction Contract.

9.2 Construction Contract: The agreement between CITY and CONTRACTOR identified on the first page hereof, including all Contract Documents and changes thereto.

9.3 Default: Failure of the CONTRACTOR or CITY, as the case may be, that has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract.

MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:

Signed and sealed this _______ day of ___________, 20__.

[CONTRACTOR] [SURETY]

ATTTEST: ATTEST:

HRO #686783 v1 Performance Bond Form Approved by City Attorney on 1/22/01 HRO #686783 v1 Performance Bond Form Approved by City Attorney on 1/22/01 image1.jpeg