EPW 18-107 A-25
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS that,
WHEREAS, the City of Emeryville, a municipal corporation located in Alameda County, State of California (hereinafter referred to as "City"), has entered into a Contract with , (hereinafter referred to as "Principal"), to construct the TRASH CAPTURE PROJECT, Project No. EPW 18-107; and
WHEREAS, the Principal is required under the terms of the Contract to furnish a bond for the faithful performance of said Contract.
NOW, THEREFORE, we, the Principal and , as
Surety, are held and firmly bound unto the City in the penal sum of ($ _______ ), lawful money of the United States of America, being not less than one hundred percent (100%) of the Contract Amount, to be paid to the City or its successors and assigns; for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the above-bound Principal, or its heirs, executors, administrators, successors, transferees, or assigns approved by the City, shall promptly and faithfully perform the covenants, conditions, and agreements in the Contract until completion, during the original term and any extensions thereof as may be granted by the City, with or without notice to Surety, and shall also promptly and faithfully perform all covenants, conditions, and agreements of any alteration of the Contract made as therein provided, notice of which alterations to Surety being hereby waived, provided on the Principal’s part to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers employees and agents, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
FURTHERMORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that upon Final Completion of the Contract, the above obligation shall be reduced to the amount of ______________________ Dollars, ($ ________ ), being not less than twenty percent (20%) of the Contract Amount, and shall hold for a period of two (2) years, during which time if the above bound Principal, or its heirs, executors, administrators, successors, transferees, or assigns shall fail to make full, complete and satisfactory repair and replacements or totally to protect the City from loss or damage made evident during said period from the date of Final Completion of the Contract, and resulting from or caused by defective materials or faulty workmanship in the prosecution of the work done, or failure to satisfy the warranty as set forth in the Contract, the above obligation in said sum of $ , shall remain in full force and effect, otherwise the above obligation shall be void.
Whenever Principal shall be declared by the City to be in default under the Contract, Surety shall promptly remedy the default, or shall promptly do one of the following at the City’s election:
1. Undertake through its agents or independent Contractors, reasonably acceptable to the City, to complete the Contract in accordance with its terms and conditions and to pay and perform all obligations of Principal under the Contract, including without limitation, all obligations with respect to warranties, guarantees, and the payment of liquidated damages.
EPW 18-107 A-26
2. Reimburse the City for all costs the City incurs in completing the Contract, and in correcting, repairing or replacing any defects in materials or workmanship and/or materials and workmanship which do not conform to the specifications in the Contract.
Further, the Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the Work to be performed thereunder or the Specifications accompanying the same shall release or exonerate the Surety on this bond or in any way affect its obligations under this bond; and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work, or to the Contract Documents.
The Surety’s obligations hereunder are independent of the obligations of any other surety for the performance of the Contract, and suit may be brought against the Surety and such other sureties, jointly and severally, or against any one or more of them, or against less than all of them without impairing the City’s rights against the others.
No right of action shall accrue on this bond to or for the use of any person or corporation other than the City or its successors or assigns.
In the event the City, or its successors or assigns, shall be the prevailing party in an action brought upon this bond, then in addition to the penal sum hereinabove specified, Principal and the Surety, jointly and severally, agree to pay to the City or its successors or assigns, a reasonable sum on account of its attorney’s fees incurred in such action, which sum shall be fixed by the court.
IN WITNESS WHEREOF, the above bound parties have executed this instrument under their seals this day of , 2022, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body.
Principal
__________________________________________________
Name
__________________________________________________
Title
__________________________________________________
Signature
(SEAL)
EPW 18-107 A-27
Surety
__________________________________________________
Name
__________________________________________________
Title
__________________________________________________
Signature
(SEAL)
*Note: To be considered complete, both the Principal and an admitted Surety Insurer authorized by the California Insurance Commissioner to transact surety business in the State of California must sign the Performance Bond.
In addition, the Surety’s signature must be notarized and a copy of the Surety’s Power of Attorney
EPW 18-107 A-28
PAYMENT BOND
KNOW ALL PERSONS BY THESE PRESENTS, that
WHEREAS, the City of Emeryville, a municipal corporation located in Alameda County, State of California (hereinafter "City"), has awarded a contract to , (hereinafter "Principal"), to construct the TRASH CAPTURE PROJECT, Project No. EPW 18-107; and
WHEREAS, the Principal is required to furnish a bond in connection with the Contract, providing that if Principal, or any of it or its subcontractors, shall fail to pay for any materials, provisions, or other supplies or teams used in, upon, for or about the performance of the Work contracted to be done, for any work or labor thereon of any kind, or claims to which reference is made in Section 9554 of the Civil Code, the Surety of this bond will pay the same to the extent hereinafter set forth.
NOW, THEREFORE, we, the undersigned Principal, and _________________ , as Surety, are held and firmly bound unto the City in the penal sum of Dollars, ($ ), lawful money of the United
States of America, being not less than one hundred percent (100%) of the Contract Amount, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal, or its heirs, executors, administrators, successors, transferees, assigns, or subcontractors, shall fail to pay any of the persons named in Section 9100 of the Civil Code, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under this Contract, or any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Contractors and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, the Surety will pay for the same, in an amount not exceeding the sum specified in this bond and will also pay, in case suit is brought upon this bond, a reasonable attorney's fee, to be fixed by the court.
This bond shall inure to the benefit of any and all persons named in Section 9100 of the Civil Code so as to give a right of action to them or their assigns in any suit brought upon this bond.
This bond is given to comply with Sections 9550 and 9554 of the Civil Code. The liability of the PRINCIPAL and SURETY hereunder is governed by the provisions of said Code, all acts amendatory thereof, and all other statutes referred to therein, including Section 8152 of the Civil Code.
And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder, or the Specifications accompanying the same shall in any way affect its obligations on this bond; and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the Work or to the Contract Documents.
EPW 18-107 A-29
IN WITNESS WHEREOF, the above bounded parties have executed this instrument under their seals this day of 2022, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body.
Principal
Name
Title
Signature
(SEAL)
Surety
Name
Title
Signature
(SEAL)
*Note:
To be considered complete, both the Principal and an admitted Surety Insurer authorized by the California Insurance Commissioner to transact surety business in the State of California must sign the Payment Bond. In addition, the Surety’s signature must be notarized and a copy of the Surety’s Power of Attorney must be attached.
EPW 18-107 A-30
GUARANTEE
TO THE CITY OF EMERYVILLE for construction of the following Project:
TRASH CAPTURE PROJECT
Project No. EPW 18-107
By signing below, Contractor hereby warrants and guaranties to City of Emeryville all ("City") construction performed on this Project, including all material and equipment incorporated therein, as set forth below:
1. Pursuant to this Guarantee, Contractor agrees to unconditionally guarantee 1) the quality and adequacy of all of work provided on the Project including, without limitation, all labor, materials, workmanship, methods of installation, and equipment provided by Contractor and/or its Subcontractors (of all tiers) in connection with the Work under normal application, installation, and use and service conditions (collectively "Work"); and 2) that the work is fit for the purposes intended. The Guarantee provided hereunder shall become effective on the date of Substantial Completion; or where applicable, the Guarantee shall become effective on the first day following Substantial Completion of a specifically defined phase of the Project; or on such other date as may be specified elsewhere in the Contract Documents; and once effective, the Guarantee shall remain operative and shall bind Contractor as further described herein for a period of two (2) years, or such longer period of time as may be prescribed by laws or regulations, or by the terms of Contract Documents ("Warranty Period").
This Guarantee is in addition to any warranties or guarantees required or provided by the manufacturer or supplier or otherwise provided at law with respect to Contractor’s duties, obligations and performance under the Contract Documents.
2. Neither final payment nor use or occupancy of the Work performed by the Contractor shall constitute an acceptance of Work not done in accordance with this Guarantee or relieve Contractor of liability with respect to any express warranties or responsibilities for faulty materials or workmanship. Contractor shall remedy any defects in the Work and pay for any damage resulting therefrom, which shall appear within the Warranty Period.
3. If, within the Warranty Period, the Work, or any portion thereof, is found to be defective, the City shall have the unqualified option to make any needed replacements or repairs itself or to have such replacements or repairs performed by Contractor. Such repairs or replacements shall include, without limitation, removal of any such defective Work and replacement of such Work with Work that is not defective, and satisfactory correction, or removal and replacement of any damage to other Work or the work of others resulting therefrom.
If City elects to have said repairs or replacements performed by Contractor, Contractor shall promptly, without cost to City, and in accordance with City’s written instructions, correct such defective Work. If City elects to perform the repairs or replacements, Contractor agrees to pay for all claims, costs, losses and damages caused by or resulting from such removal and replacement by City. While carrying out correction, or removal and replacement of defective or nonconforming Work the Contractor must provide the same insurance specified before Contract acceptance. Nonconforming Work that is remedied pursuant to this Warranty shall be subject to an extended warranty obligation for the period of two (2) years after the acceptance of the repairs to the nonconforming work.
EPW 18-107 A-31
4. Inspection of the Work shall not relieve Contractor of any of its obligations under the Contract Documents. Even though Work required to be provided under the Contract Documents has been inspected, accepted, and estimated for payment, Contractor shall, at its own expense, replace or repair any such equipment, material, or Work found to be defective or otherwise not to comply with the requirements of the Contract Documents up to the end of the applicable Warranty Period.
5. This Guarantee is not in lieu of any other liability imposed on Contractor under the Contract Documents and at law with respect to Contractor’s duties, obligations, and performance under the Contract Documents, and is in addition to any warranties or guarantees required or provided by manufacturers or suppliers. In the event of any conflict or inconsistency between the terms of this Guarantee and any obligation of the Contractor under the Contract Documents or at law, such inconsistency or conflict shall be resolved in favor of the higher level of obligation of the Contractor.
6. If the Contractor fails or refuses to comply with its obligations under this Guarantee, City shall be entitled to all costs and expenses, including attorneys' fees, reasonably incurred by reason of the said failure or refusal.
______________________________ ______________________________ Contractor Date
______________________________
Contractor's Name (print)
______________________________
Address
______________________________
City/State/Zip
______________________________
Phone
______________________________
Fax No:
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