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<br />1. Bidder and Surety, jointly and severally, <br />bind themselves, their heirs, executors, <br />administrators, successors and assigns to pay to <br />Owner upon default of Bidder any difference <br />between the total amount of Bidder's bid and the <br />total amount of the bid of the next lowest, <br />responsible and responsive bidder as determined <br />by Owner for the Work required by the Contract <br />Documents, provided that: <br /> <br />1.1. If there is no such next lowest, responsible <br />and responsive bidder, and Owner does not <br />abandon the Project, then Bidder and Surety shall <br />pay to Owner the penal sum set forth on the face <br />of this Bond, and <br /> <br />1.2. In no event shall Bidder's and Surety's <br />obligation hereunder exceed the penal sum set <br />forth on the face of this Bond. <br /> <br />2. Default of Bidder shall occur upon the failure <br />of Bidder to deliver within the time required by <br />the Bidding Documents (or any extension thereof <br />agreed to in writing by Owner) the executed <br />Agreement required by the Bidding Documents <br />and any performance and payment bonds required <br />by the Bidding Documents and Contract <br />Documents. <br /> <br />3. This obligation shall be null and void if: <br /> <br />3.1. Owner accepts Bidder's bid and Bidder <br />delivers within the time required by the <br />Bidding Documents (or any extension thereof <br />agreed to in \vriting by OVYTIer) the executed <br />Agreement required by the Bidding Documents <br />and any performance and payment bonds required <br />by the Bidding Documents and Contract <br />Documents, or <br /> <br />3.2. All bids are rejected by Owner, or <br /> <br />3.3. Owner fails to issue a notice of award to <br />Bidder within the time specified in the Bidding <br />Documents (or any extension thereof agreed to in <br />writing by Bidder and, if applicable, consented to <br />by Surety when required by paragraph 5 hereof). <br /> <br />4. Payment under this Bond will be due and <br />payable upon default by Bidder and within 30 <br />calendar days after receipt by Bidder and within <br /> <br />Bid Bond, Oct. 2007 <br /> <br />00401-2 <br /> <br />30 calendar days after receipt by Bidder and <br />Surety of written notice of default from Owner, <br />which notice will be given with reasonable <br />promptness, identifying this Bond and the Project <br />and including a statement of the amount due. <br /> <br />5. Surety waives notice of and any and all <br />defenses based on or arising out of any time <br />extension to issue notice of award agreed to in <br />writing by Owner and Bidder, provided that the <br />total time for issuing notice of award including <br />extensions shall not in the aggregate exceed 120 <br />days from Bid Due Date without Surety's written <br />consent. <br /> <br />6. No suit or action shall be commenced under <br />this Bond prior to 30 calendar days after the <br />notice of default, as required in Paragraph 4 <br />above, is received by Bidder and Surety and in no <br />case later than one year after Bid Due Date. <br /> <br />7. Any suit or action under this Bond shall be <br />commenced only in a court of competent <br />jurisdiction located in the state in which the <br />Project is located. <br /> <br />8. Notices required hereunder shall be in <br />writing and sent to Bidder and Surety at their <br />respective addresses shown on the face of this <br />Bond. Such notices may be sent by personal <br />delivery, commercial courier or by United States <br />Registered or Certified Mail, return receipt <br />requested, postage pre-paid, and shall be deemed <br />to be effective upon receipt by the party <br />concerned. <br /> <br />9. Surety shall cause to be attached to this <br />Bond a current and effective Power of Attorney <br />evidencing the authority of the officer, agent or <br />representative who executed this Bond on behalf <br />of Surety to execute, seal and deliver such Bond <br />and bind the Surety thereby. <br /> <br />10. This Bond is intended to conform to all <br />applicable statutory requirements. Any applicable <br />requirement of any applicable statute that has <br />been omitted from this Bond shall be deemed to <br />be included herein as if set forth at length. If any <br />provision of this Bond conflicts with any <br />applicable provision of this Bond conflicts with <br />any applicable provision of any applicable statute, <br />