9 - PERFORMANCE AND WARRANTY BOND.doc

PERFORMANCE AND WARRANTY BOND

That we, _____________________________________________________, of the County of _____________________, and State of __________________________ (hereinafter called “Principal”), as Principal, and _______________________________________________ (hereinafter called “Surety”), as Surety, authorized under the laws of the State of Colorado to act as surety on bonds for principals, are held and firmly bound unto _________________________ (hereinafter called “Owner”) as Obligee, in the penal sum of _____________________________ Dollars ($____________) in lawful money of the United States for payment by Principal and Surety, and bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally and firmly by these presents.

WHEREAS, Principal has, on _______________________, 20___, entered into a written Agreement with Owner for construction of the Project as defined in said Agreement, which Agreement is by reference made a part hereof and is hereinafter referred to as the Agreement.

NOW, THEREFORE, the conditions of this obligation are that if the Principal shall: (1) faithfully perform said Agreement on Principal’s part and satisfy all claims and demands incurred for the same; (2) fully indemnify and save harmless the Owner from all costs and damages which said Owner may suffer by reason of Principal’s failure so to do; (3) fully reimburse and repay said Owner all outlay and expenses which said Owner may incur in making good any default; (4) pay all persons, firms and corporations all just claims due them for the payment of all laborers and mechanics for labor performed, for all materials and equipment furnished, and for all materials and equipment used or rented in the performance of Principal’s Agreement; and (5) keep the Work constructed under this Agreement in good repair for a period of two years from date of final acceptance by said Owner, then this obligation is null and void; otherwise it shall remain in full force and effect.

To the extent permissible by law, the Principal shall protect, defend, indemnify and save harmless the Owner, the Engineer, and their officers, agents, servants and employees, from and against suits, actions, claims, losses, liability or damage of any character, and from and against costs and expenses including, in part, attorney fees incidental to the defense of such suits, actions, claims, losses, damages or liability on account of injury, disease, sickness, and death to any person or damage to property, including in part the loss of use resulting therefrom, based upon or allegedly based upon any act, omission or occurrence of the Principal, or his employees, servants, agents, subcontractors or suppliers, or anyone else under the Principal’s direction and control, and arising out of, occurring in connection with, resulting from, or caused by the performance or failure of performance of any work or services called for by the Agreement, or from conditions created by the performance or non-performance of said work or services.

This indemnity shall not extend to liability arising out of the preparation by the Engineer of the design or specifications for the Owner or the giving of written directions or instruction by the Engineer as may be required by the Contract Documents, provided the giving of such written instructions or directions is the proximate cause of the injury or damage should it occur.

Whenever Principal shall be, and is declared by Owner to be, in default under the Agreement, the Owner having performed Owner’s obligations thereunder, the Owner may avail itself of the provisions of Section 15.02 B of the General Conditions which are incorporated by reference in the Agreement and the Surety shall promptly pay the amounts, if any, due Owner by Principal.

Any suit under this Bond must be instituted before the expiration of three years from the date on which final payment under the Agreement falls due.

No right of action shall accrue on this Bond to or for the use of any person or corporation other than the Owner named herein or the successors and assigns of Owner and to all persons, firms and corporations for all just claims due them for the payment of all laborers and mechanics for labor performed, for all materials and equipment furnished, and for all materials and equipment used or rented in the performance of Principal’s Agreement.

The Surety hereby waives the right to special notification of any notification of or alterations, omissions or reductions, extra or additional work, extensions of time, Change Orders, Field Orders or any other act or acts of Owner or its authorized agents under the terms of the Agreement; and failure to notify Surety of such shall in no way relieve Surety of its obligations.

Signed and sealed this ______ day of _____________________, 20___.

PRINCIPAL:

By:

Witness

(Address)

SURETY:

By:

Witness

(Address)

Surety’s Telephone No.:

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