1-7. SPLOST IX Transp Bundle 5 Performance-Bond.pdf
PDF 351 KB Posted
- Solicitation number
- 26-65-1514
- Issued by
- Fayette County, Georgia
About this file
This is a Progressive Design-Build Performance Bond document issued for Forsyth County, Georgia, under the SPLOST IX Transportation Bundle 5 project. The bond serves as a financial guarantee that the selected design-builder will complete the project, which involves Old Atlanta Road Safety Improvements focusing on corridor safety and operational improvements. The document utilizes the EJCDC D-610 standard form, which establishes the contractual obligations between the design-builder (principal), surety (bonding company), and owner (Forsyth County). The bond becomes effective upon execution and remains in force throughout the design-build contract period, requiring the design-builder to perform all work in accordance with the contracted scope, schedule, and specifications.
The performance bond obligates the surety to step in and remedy any design-builder default, including correcting defective work, completing the project, and covering additional costs such as legal fees, design professional services, and delay-related expenses. The surety's liability is limited to the bond amount and covers only obligations directly related to the design-build contract. If the design-builder defaults, the owner must provide written notice to both the design-builder and surety, allowing for a conference period of up to ten business days to discuss performance issues before formal default can be declared. The surety may then arrange for the original design-builder to complete the work with owner consent, perform the work itself, obtain alternative bids for completion, or deny liability with justification. Any legal proceedings related to the bond must be filed within two years of default declaration, design-builder cessation of work, or surety's failure to perform, whichever occurs first.
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EJCDC® D-610, Progressive Design-Build Performance Bond.
Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 1 of 4
PROGRESSIVE DESIGN-BUILD PERFORMANCE BOND
DESIGN-BUILDER (name and address):
SURETY (name and address of principal place of business):
OWNER (name and address): Forsyth County, Georgia, 2435 Freedom Parkway, Cumming, GA 30041
PROGRESSIVE DESIGN-BUILD CONTRACT
Effective Date of the Contract:
Amount:
Description (name and location): SPLOST IX Transportation Bundle 5, Forsyth County, GA
BOND
Bond Number:
Date (not earlier than the Effective Date of the Contract):
Amount:
Modifications to this Bond Form: None See Paragraph 16
Surety and Design-Builder, intending to be legally bound hereby, subject to the terms set forth below, do each cause this Design-Build Performance Bond to be duly executed by an authorized officer, agent, or representative. [Note: Provide supplemental execution by any additional parties, such as joint venturers.]
DESIGN-BUILDER AS PRINCIPAL SURETY
Design-Builder’s Name Surety’s Name
By: By:
Signature Signature (attach power of attorney)
Print Name Print Name
Title Title
Attest: Attest:
Signature Signature
Title Title
Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 2 of 4
1. The Design-Builder and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors, and assigns to the Owner for the performance of the Design-Build Contract, which is incorporated herein by reference.
2. If the Design-Builder performs the Design-Build Contract, the Surety and the Design-Builder shall have no obligation under this Bond, except when applicable to participate in a conference as provided in Paragraph 3.
3. If there is no Owner Default under the Design-Build Contract, the Surety’s obligation under this Bond shall arise after:
3.1 The Owner first provides notice to the
Design-Builder and the Surety that the Owner is considering declaring a Design-Builder Default. Such notice shall indicate whether the Owner is requesting a conference among the Owner, Design- Builder, and Surety to discuss the Design-Builder’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 Paragraph 3.1 shall be held within ten (10) business days of the Surety’s receipt of the Owner’s notice. If the Owner, the Design-Builder, and the Surety agree, the Design-Builder shall be allowed a reasonable time to perform the Design-Build Contract, but such an agreement shall not waive the Owner’s right, if any, subsequently to declare a Design-Builder Default;
3.2 The Owner declares a Design-Builder
Default, terminates the Design-Build Contract, and notifies the Surety; and
3.3 The Owner has agreed to pay the Balance of
the Design-Build Contract Price in accordance with the terms of the Design-Build Contract to the Surety, or to a design-builder or contractor selected to perform the Design-Build Contract.
4. Failure on the part of the Owner to comply with the notice requirement in Paragraph 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 Paragraph 3, the Surety shall promptly and at the Surety’s expense take one of the following actions:
5.1 Arrange for the Design-Builder, with the
consent of the Owner, to perform and complete the Design-Build Contract;
5.2 Undertake to perform and complete the
Design-Build Contract itself, through its agents or independent contractors;
5.3 Obtain bids or negotiated proposals from
qualified design-builders or contractors acceptable to the Owner for a contract for performance and completion of the Design-Build Contract, arrange for a contract to be prepared for execution by the Owner and a design-builder or 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 Design-Build Contract, and pay to the Owner the amount of damages as described in Paragraph 7 in excess of the Balance of the Design-Build Contract Price incurred by the Owner as a result of the Design-Builder Default; or
5.4 Waive its right to perform and complete, arrange for completion, or obtain a new design-builder or contractor, and with reasonable promptness under the circumstances:
5.4.1 After investigation, determine 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
5.4.2 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 Paragraph 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional 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 Paragraph 5.4, and
Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 3 of 4 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.
7. If the Surety elects to act under Paragraph 5.1, 5.2, or 5.3, then the responsibilities of the Surety to the Owner shall not be greater than those of the Design- Builder under the Design-Build Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Design-Build Contract. Subject to the commitment by the Owner to pay the Balance of the Design-Build Contract Price, the Surety is obligated, without duplication, for:
7.1 the responsibilities of the Design-Builder for correction of defective work and completion of the Design-Build Contract;
7.2 additional legal, design professional, and delay costs resulting from the Design-Builder’s Default, and resulting from the actions or failure to act of the Surety under Paragraph 5; and
7.3 liquidated damages, or if no liquidated damages are specified in the Design-Build Contract, actual damages caused by delayed performance or non-performance of the Design-Builder.
8. If the Surety elects to act under Paragraph 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 Design-Builder that are unrelated to the Design-Build Contract, and the Balance of the Design-Build 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 Design-Build 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 where the construction portion of the Project is located, and shall be instituted within two years after a declaration of Design-Builder Default, or within two years after the Design-Builder 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 periods of limitations available to sureties as a defense in the jurisdiction of the suit shall be applicable.
12. Notice under this Bond to the Surety, the Owner, or the Design-Builder shall be in writing, and mailed or delivered to the recipient’s address as shown in this Bond.
13. When this Bond has been furnished to comply with a statutory or other legal requirement where the construction portion of the Project is located, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted from this Bond 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 Design-Build Contract Price:
The total amount payable by the Owner to the Design-Builder under the Design-Build Contract after all proper adjustments have been made including allowance for the Design-Builder for any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Design-Builder is entitled, reduced by all valid and proper payments made to or on behalf of the Design-Builder under the Design-Build Contract.
14.2 Design-Build Contract: The agreement
between the Owner and Design-Builder identified as such in this Bond, including all Contract Documents and changes duly made to such Design-Build Contract.
14.3 Design-Builder Default: Failure of the Design-
Builder, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Design-Build Contract.
Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 4 of 4
14.4 Owner Default: Failure of the Owner, which
has not been remedied or waived, to pay the Design- Builder as required under the Design-Build Contract, or to perform and complete or comply with the other material terms of the Design-Build Contract.
14.5 Contract Documents: All the documents that
comprise the contract between the Owner and Design-Builder.
15. Any singular reference to Design-Builder, Surety, Owner, or other party shall be considered plural where applicable.
16. Modifications to this Bond are as follows:
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