Performance Bond GC.doc

PERFORMANCE BOND (GENERAL CONTRACTOR)

_____________________________________________________________, a corporation duly

[Insert Proper Name of Surety] organized and existing under the laws of the State of ____________, as surety (“Surety”), and

______________________________________________________________, as principal

[Insert Proper Name of General Contractor] (“General Contractor”), enter into, execute this bond ("Performance Bond"), and bind themselves in favor of the Walker County Board of Education as obligee (“Owner”), in the penal sum of ____________________________________ dollars ($_________).

[Insert Penal Sum in words and numerals] WHEREAS, the General Contractor signed a contract with the Owner on ________________, ______. 2_____ (“General Contractor Contract”) for General Contractor services including construction for a guaranteed maximum price of ____________ for construction of Rossville Middle School Athletic Field and Concessions (“Project”); and, WHEREAS, the Owner has required the General Contractor to furnish this Performance Bond containing the terms and conditions set forth herein as a condition of the General Contractor Contract with the General Contractor;

NOW THEREFORE, the Surety and the General Contractor, both jointly and severally, and for themselves, their heirs, administrators, executors and successors agree:

1.

The General Contractor Contract is hereby incorporated herein and by reference made a part hereof to the same extent and effect as though it were copied verbatim herein. The Surety and the General Contractor are bound for the full performance of the General Contractor Contract, including, without exception, all of its terms and conditions, both express and implied.

2.

If the General Contractor is in default of the General Contractor Contract and the Owner, by written notice to the General Contractor and the Surety, declares the General Contractor to be in default and terminates the right of the General Contractor to proceed, the Surety shall thereupon promptly notify the Owner in writing as to which of the actions permitted to the Surety in Paragraph 3 it will take.

3.

Upon default and termination of the General Contractor and notice to the General Contractor and Surety as provided in Paragraph 2 above, the Surety shall, within 30 days, proceed to take one or, at its option, more than one of the following courses of action:

(A) Proceed itself, or through others acting on its behalf, to complete full performance of the General Contractor Contract including, without limitation, correction of defective and nonconforming work performed by or on behalf of the General Contractor. During such performance by the Surety, the Owner shall pay the Surety from its own funds only such sums as would have been due and payable to the General Contractor in the absence of the default and termination.

(B) Applicable law permitting, and with the prior written consent of the Owner, obtain bids or proposals from General Contractors previously identified as being acceptable to the Owner, for full performance of the General Contractor Contract. The Surety shall furnish the Owner a copy of such bids or proposals upon receipt of same. The Surety shall promptly select, with the agreement of the Owner, the best responsive bid or proposal and shall promptly tender the General Contractor submitting it, together with a contract for fulfillment and completion of the General Contractor Contract executed by the completing General Contractor, to the Owner for the Owner's execution. Upon execution by the Owner of the contract for fulfillment and completion of the General Contractor Contract, the completing General Contractor shall furnish to the Owner a performance bond and a separate payment bond, each in the form of those bonds previously furnished to the Owner for the Project by the General Contractor. Each such bond shall be in the penal sum of the (1) fixed price for completion, (2) guaranteed maximum price for completion, or (3) estimated price for completion, whichever is applicable. The Owner shall pay the completing General Contractor from its own funds only such sums as would have been due and payable to the General Contractor under the General Contractor Contract as and when they would have been due and payable to the General Contractor in the absence of the default and termination. To the extent that the Owner is obligated to pay the completing General Contractor sums which would not have then been due and payable to the General Contractor under the General Contractor Contract, the Surety shall provide the Owner with such sums in a sufficiently timely manner that the Owner can utilize such sums in making timely payment to the completing General Contractor; or,

(C) Take any and all other acts, if any, mutually agreed upon in writing by the Owner and the Surety.

4.

In addition to those duties set forth hereinabove, the Surety shall promptly pay the Owner all loss, costs and expenses resulting from the General Contractor’s default(s), including, without limitation, fees, expenses and costs for architects, engineers, consultants, testing, surveying and attorneys, liquidated or actual damages, as applicable, for delay in completion of the Project, and fees, expenses and costs incurred at the direction, request, or as a result of the acts or omissions of the Surety.

5.

In no event shall the Surety be obligated to the Owner hereunder for any sum in excess of the Penal Sum. As used in this Performance Bond, the term “Penal Sum” means the amount stated as the penal sum in the preamble of this Performance Bond, as that amount may be adjusted from time to time pursuant to Paragraph 6 below.

6.

The Surety waives notice of any changes to the General Contractor Contract including, without limitation, changes in the contract time, the contract price, or the work to be performed. If the total amount payable by the terms of the General Contractor Contract is increased to an amount in excess of the then current Penal Sum, then, automatically and without notice to or any action required of any party, the Penal Sum shall be increased as the total amount payable by the terms of the General Contractor Contract is increased.

7.

This Performance Bond is provided by the Surety for the sole and exclusive benefit of the Owner, together with its successors or assigns. No other party, person or entity shall have any rights against the Surety hereunder.

8.

Any and all notices to the Surety, the General Contractor or the Owner shall be given by Certified Mail, Return Receipt Requested, to the address set forth for each party below:

Surety:

Attn: ___________________________

General Contractor:

Attn: ___________________________

Owner:

Walker County Board of Education

301 N. Cherokee Street LaFayette, Georgia 30728 Attn: Chris Wallace 9.

Any statutory limitation, which may be contractually superseded, to the contrary notwithstanding, any action hereon may be instituted so long as the applicable statute of limitations governing the General Contractor Contract has not run or expired.

GENERAL CONTRACTOR:

SURETY:

______________________________ [Seal] _________________________________ [Seal]

[Typed Name]

[Typed Name] By: ______________________________ By: __________________________________

[Signature]

[Signature]

[Printed Name, Title and Address]

[Printed Name, Title and Address]

12.2008

PAGE

01.2014