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<br />1. Bidder and Surety, jointly and severally, bind
<br />themselves, their heirs, executors, administrators,
<br />successors and assigns to pay to Owner upon default of
<br />Bidder any difference between the total amount of
<br />Bidder's bid and the total amount of the bid of the next
<br />lowest, responsible and responsive bidder as determined
<br />by Owner for the Work required by the Contract
<br />Documents, provided that:
<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
<br />shall pay to Owner the penal sum set forth on
<br />the face of this Bond, and
<br />1.2. In no event shall Bidder's and Surety's
<br />obligation hereunder exceed the penal sum
<br />set forth on the face of this Bond.
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<br />2. Default of Bidder shall occur upon the failure of
<br />Bidder to deliver within the time required by the Bidding
<br />Documents (or any extension thereof agreed to in writing
<br />by Owner) the executed Agreement required by the
<br />Bidding Documents and any performance and payment
<br />bonds required by the Bidding Documents and Contract
<br />Documents.
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<br />3. This obligation shall be null and void if:
<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 writing by Owner) the executed
<br />Agreement required by the Bidding
<br />Documents and any performance and
<br />payment bonds required by the Bidding
<br />Documents and Contract Documents, or
<br />3.2. All bids are rejected by Owner, or
<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
<br />to in writing by Bidder and, if applicable,
<br />consented to by Surety when required by
<br />paragraph 5 hereof).
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<br />4. Payment under this Bond will be due and payable
<br />upon default by Bidder and within 30 calendar days after
<br />receipt by Bidder and within 30 calendar days after
<br />receipt by Bidder and Surety of written notice of default
<br />from Owner, which notice will be given with reasonable
<br />promptness, identifying this Bond and the Project and
<br />including a statement of the amount due.
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<br />5. Surety waives notice of and any and all defenses
<br />based on or arising out of any time extension to issue
<br />notice of award agreed to in writing by Owner and
<br />Bidder, provided that the total time for issuing notice of
<br />award including extensions shall not in the aggregate
<br />exceed 120 days from Bid Due Date without Surety's
<br />written consent.
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<br />6. No suit or action shall be commenced under this
<br />Bond prior to 30 calendar days after the notice of default,
<br />as required in Paragraph 4 above, is received by Bidder
<br />and Surety and in no case later than one year after Bid
<br />Due Date.
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<br />7. Any suit or action under this Bond shall be
<br />commenced only in a court of competent jurisdiction
<br />located in the state in which the Project is located.
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<br />8. Notices required hereunder shall be in writing and
<br />sent to Bidder and Surety at their respective addresses
<br />shown on the face of this Bond. Such notices may be
<br />sent by personal delivery, commercial courier or by
<br />United States Registered or Certified Mail, return receipt
<br />requested, postage pre-paid, and shall be deemed to be
<br />effective upon receipt by the party concerned.
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<br />9. Surety shall cause to be attached to this Bond a
<br />current and effective Power of Attorney evidencing the
<br />authority of the officer, agent or representative who
<br />executed this Bond on behalf of Surety to execute, seal
<br />and deliver such Bond and bind the Surety thereby.
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<br />10. This Bond is intended to conform to all applicable
<br />statutory requirements. Any applicable requirement of
<br />any applicable statute that has been omitted from this
<br />Bond shall be deemed to be included herein as if set forth
<br />at length. If any provision of this Bond conflicts with any
<br />applicable provision of this Bond conflicts with any
<br />applicable provision of any applicable statute, then the
<br />provision of said statute shall govern and the remainder
<br />of this Bond that is not in conflict therewith shall
<br />continue in full force and effect.
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<br />11. The term "bid" as used herein includes a bid, offer
<br />or proposal as applicable.
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<br />09/09
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<br />00401-2
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<br />03-4122.F
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