ORDER NO. ltdL51
APPROVAL DF STANDARD FORMS FOR PERFORMANCE BDNDS
AND PAYMENT BONDS F'OR CDUNTY CONSTRUCTION CON'rkACTS
On this the 13th day of May 1991, came on to be considered by
the Court the adoption of standard forms for Performance
Bonds and Payment Bonds for use by the County on all County
construction contracts, as prepared by the County Attorney's
Office. After consideration and on motion made by
Commissioner Holekamp, seconded by Commissioner Oehler, the
Court unanimously approved by a vote of 4-0-0 to adopt the
Performance Bond form and the Payment Bond form attached
hereto and made a part hereof for use by the County on all
construction contracts.
ir. - • ~
COMMISSIONERS' COURT AGENDA REQUEST ~`~ ~`L
• PLEASE FURNISH ONE ORIGINAL AND SEVEN COPIES OF THIS REDDEST AND DOCUMENTS
TO BE REVIEWED BY THE COURT.
MADE BY: ~T~rJ 2C ~
OFFICE: ~~
MEETING DATE: /`~~ 4~-~°~-~ TIME PREFERRED: a'"'~
SUBJECT: (PLEASE BE SPECIFIC): ~~~~^- ~.
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ESTIMATED LENGTH OF PRESENTATION:
IF PERSONNEL MATTER -NAME OF EMPLOYEE: ;-~ ~
NAME OF PERSON ADDRESSING THE COURT: < <-~-~-~/
Time for submitting this request for Court to assure that the matter Is posted in
accordance with Article 6252.17 is as follows:
• Meetings held on second Monday: 12:00 P. M. previous Wednesday
• Meetings held on Thursdays: 5:00 P. M. previous Thursday.
If preferable, Agenda Requests may be made on office stationery with the above
information attached.
THIS REG~UEST RECEIVED BY: fi
THIS REQUEST RECEIVED ON: ~h - 3 ' ~f ~ ~ ; ~~ ,,~~...~
All Agenda Requests will be screened by the County Judge's Office to determine if
adequate information has been prepared for the Court's formal consideration and action at
time of Court meetings. Your cooperation will be appreciated and contribute towards
your request being addressed at the earliest opportunity.
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT
(Name of Contractor)
(Address of Contractor)
a , hereinafter called PRINCIPAL, and
(Corporation, Partnership, or Individual)
(Name of Surety)
(Address of Surety) ~
a corporate surety duly authorized and admitted to do business in
the State of Texas and licensed by the State of Texas to issue
surety bonds, hereinafter called SURETY, are held and firmly bound
unto KERR COUNTY, TEXAS, 700 East Main Street, Kerrville, Texas,
78028, hereinafter called OWNER, in the total aggregate penal sum
of DOLLARS
($ ) in lawful money of the United States, for
the payment of which sum well and truly to be made we bind
ourselves, our heirs, executors, administrators, successors, and
assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such that, whereas PRINCIPAL
entered into a certain agreement with OWNER dated the
day of , 199_, a copy of which is
hereunto attached and made a part hereof, for the construction of:
NOW, THEREFORE, IF PRINCIPAL shall well, truly, and faithfully
perform his duties, all the undertakings, covenants, terms,
conditions, and agreements of said CONTRACT and in accordance with
the PLANS AND SPECIFICATIONS and CONTRACT DOCUMENTS during the
original term thereof, and any extensions thereof which may be
granted by OWNER, with or without notice to SURETY, and during the
one-year guaranty period, and if PRINCIPAL shall satisfy all claims
and demands incurred under such contract and shall fully indemnify
and save harmless OWNER from all costs and damages which it may
suffer by reason of failure to do so, and shall reimburse and repay
OWNER all outlay and expense which OWNER may incur in making good
any default, then this obligation shall be void, otherwise to
remain in full force and effect.
PROVIDED, FURTHER, that SURETY, for value received, hereby
stipulates and agrees that no change, extension of time,
alteration, or addition to the terms of the CONTRACT and CONTRACT
DOCUMENTS or to WORK to be performed thereunder or to PLANS AND
SPECIFICATIONS accompanying same shall in any way affect its
obligation 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, the CONTRACT DOCUMENTS, the WORK, or the
PLANS AND SPECIFICATIONS.
PROVIDED, FURTHER, that it is expressly agreed that the BOND shall
be deemed amended automatically and immediately, without formal and
separate amendments hereto, upon amendment to the CONTRACT, the
CONTRACT DOCUMENTS, or the PLANS AND SPECIFICATIONS not increasing
the contract price more than twenty per cent (20~), so as to bind
PRINCIPAL and SURETY to the full and faithful performance of
CONTRACT as so amended. The term "amendment", wherever used in
this BOND and whether referring to this BOND, the CONTRACT, the
CONTRACT DOCUMENTS, or the PLANS AND SPECIFICATIONS, shall include
any alteration, addition, extension, or modification of any
character whatsoever.
PROVIDED, FURTHER, that no final settlement between OWNER and
PRINCIPAL shall abridge the right of the other beneficiary
hereunder whose claim may be unsatisfied. OWNER is the only
beneficiary hereunder.
PROVIDED, FURTHER, that CONTRACTOR faithfully performs the CONTRACT
according to the PLANS AND SPECIFICATIONS and CONTRACT DOCUMENTS,
the SURETY and the CONTRACTOR shall have no obligation under this
BOND, except to participate in conferences as provided below.
PROVIDED, FURTHER, that:
(1) SURETY's obligation under this BOND shall arise after:
(a) OWNER has notified CONTRACTOR and SURETY, at the address
shown on the signature page hereof, that OWNE17 is considering
declaring a CONTRACTOR DEFAULT and has requested and attempted
to arrange a conference with CONTRACTOR and SURETY to be held
not later than fifteen (15) days after receipt of such notice
to discuss methods of performing the CONTRACT. If OWNER,
CONTRACTOR, and SURETY agree, CONTRACTOR shall be allowed a
reasonable time to perform the CONTRACT, but such an agreement
shall not waive OWNER's right, if any, subsequently to declare
a CONTRACT DEFAULT; and,
(b) OWNER has declared a CONTRACTOR DEFAULT and formally
terminated CONTRACTOR'S right to complete the CONTRACT. Such
CONTRACTOR DEFAULT shall not be declared earlier than twenty
(20) days after CONTRACTOR and SURETY have received notice as
provided in Subparagraph (1)(a); and,
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(c) OWNER has agreed to pay the BALANCE OF THE CONTRACT PRICE
to SURETY in accordance with the terms of the CONTRACT or to
a contractor selected to perform the CONTRACT in accordance
with the terms of the contract with OWNER.
(2) When OWNER has satisfied the conditions of Paragraph (1),
SURETY shall promptly and at the SURETY'S expense take one of the
following actions:
(a) Arrange for CONTRACTOR, with consent of OWNER, to perform
and complete the CONTRACT; or,
(b) Undertake to perform and complete the CONTRACT itself,
through its agents or through independent contracts; or,
(c) Obtain bids or negotiated proposals from qualified
contractors acceptable to OWNER for a contract for performance
and completion of the CONTRACT, arrange for a contract to be
prepared for execution by OWNER and the contractor selected
with OWNER'S concurrence, to be secured with performance and
payment bonds executed by a qualified surety equivalent to the
bonds issued on the CONTRACT, and pay to OWNER the amount of
damages in excess of the BALANCE OF THE CONTRACT PRICE
incurred by OWNER resulting from CONTRACTOR's default; or,
(d) Waive its right to perform and complete, arrange for
completion, or obtain a new contractor, and with reasonable
promptness under the circumstances:
(i) After investigation, determine the amount for which
it may be liable to OWNER and, as soon as practicable
after the amount is determined, tender payment therefor
to OWNER; or,
(ii) Deny liability in whole or in part and notify OWNER
citing reasons therefor.
(3) If SURETY does not proceed as provided in Paragraph (1) with
reasonable promptness, SURETY shall be deemed to be in default on
this BOND fifteen (15) days after receipt of an additional written
notice from OWNER to SURETY demanding that SURETY perform its
obligations under this BOND, and OWNER shall be entitled to enforce
any remedy available to OWNER. If SURETY proceeds as provided in
Subparagraph (2)(d) and OWNER refuses the payment tendered or
SURETY has denied liability, in whole or in part, without further
notice OWNER shall be entitled to enforce any remedy available to
OWNER.
(4) After OWNER has terminated CONTRACTOR'S right to complete the
CONTRACT, and if SURETY elects to act under Subparagraphs (2)(a),
(b), or (c) above, then the responsibilities of SURETY to OWNER
shall not be greater than those of CONTRACTOR under the CONTRACT,
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and the responsibilities of OWNER to SURETY shall not be greater
than those of OWNER under the CONTRACT. To the limit of the amount
of this BOND, but subject to commitment by OWNER of the BALANCE OF
THE CONTRACT PRICE to mitigation of costs and damages on the
CONTRACT, SURETY is obligated without duplication for:
(a) The responsibilities of CONTRACTOR for correction of
defective work and completion of the CONTRACT;
(b) Additional legal, design, professional, and delay costs
resulting from CONTRACTOR's Default, and resulting from the
actions or failure to act of SURETY under Paragraph 4; and,
(c) Liquidated damages, or if no liquidated damages are
specified in the CONTRACT, actual damages caused by delayed
performance or non-performance of CONTRACTOR.
(5) Any proceeding, legal or equitable, under this BOND may be
instituted in any court of competent jurisdiction in the location
in which the work or part of the work is located and shall be
instituted within four (4) years after CONTRACTOR DEFAULT or within
four (4) years after CONTRACTOR ceased working or within four (4)
years after SURETY refuses or fails to perform its obligations
under this BOND, whichever occurs last.
(6) Notice to SURETY, OWNER, or CONTRACTOR shall be mailed or
delivered to the address shown on the signature page.
(7) When this BOND has been furnished to comply with a statutory
or other legal requirement in the location where the construction
was to be performed, any provision in this BOND conflicting with
said statutory or legal requirement shall be deemed deleted
herefrom, and provisions conforming to such statutory or other
legal requirement shall be deemed incorporated herein. The intent
is that this BOND shall be construed as a statutory bond and not as
a common-law bond.
(8) Definitions:
(a) BALANCE OF THE CONTRACT PRICE: The total amount payable
by OWNER to CONTRACTOR under the CONTRACT after all proper
adjustments have been made, including allowance to CONTRACTOR
of any amounts received or to be received by OWNER in
settlement of insurance or other claims for damages to which
CONTRACTOR is entitled, reduced by all valid and proper
payments made to or on behalf of CONTRACTOR under the
CONTRACT.
(b) CONTRACT: The agreement between OWNER and CONTRACTOR
identified on the signature page, including all CONTRACT
DOCUMENTS, NOTICE TO BIDDERS, GENERAL CONDITIONS, SPECIAL
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CONDITIONS, SUPPLEMENTAL CONDITIONS, and the PLANS AND
SPECIFICATIONS, and changes thereto.
(c) CONTRACTOR DEFAULT: Failure of CONTRACTOR, which has
neither been remedied nor waived, to perform or otherwise to
comply with the terms of the CONTRACT.
This BOND shall be performed in Kerr County, Texas.
IN WITNESS WHEREOF, this instrument is executed in
counterparts, each one of which shall be deemed an original, this
day of , 199
ATTEST:
Witness as to Principal
Principal
Address
Address
Surety
ATTEST:
By
Attorney-in fact
Witness to Surety
Address
Approved as to form:
Date
Owner
NOTE:
1. Date of BOND must not be prior to date of CONTRACT. If
CONTRACTOR is a partnership, all partners should execute BOND.
2. IMPORTANT: Surety companies executing BONDS must appear on
the Treasury Department's most current list (Circular 570 as
amended) and be authorized to transact business in the State of
Texas.
CONTRACTS/AGREEMENTS:~PERFORM. BON
5
PAYMENT BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT
(Name of Contractor
(Address of Contractor)
a hereinafter called PRINCIPAL, and
(Corporation, Partnership, or Individual)
(Name of Surety)
(Address of Surety) ~
a corporate surety duly authorized and admitted to do business in
the State of Texas and licensed by the State of Texas to issue
surety bonds, hereinafter called SURETY, are held and firmly bound
unto KERR COUNTY, TEXAS, 700 East Main Street, Kerrville, Texas,
78028, hereinafter called OWNER, and unto all persons, firms, and
corporations who or which may furnish labor or who furnish
materials to perform as described under the CONTRACT and to their
successors and assigns in the total aggregate penal sum of
DOLLARS
($ ) in lawful money of the United States, for the
payment of which sum well and truly to be made we bind ourselves,
our heirs, executors, administrators, successors, and assigns,
jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such that, whereas PRINCIPAL
entered into a certain agreement with OWNER dated the
day of , 199_, a copy of which is
hereunto attached and made a part hereof, for the construction of:
NOW, THEREFORE, IF PRINCIPAL shall promptly make payment to all
persons, firms, and corporations furnishing materials for or
performing labor in the prosecution of the WORK provided for in
such CONTRACT and any authorized extensions or modification
thereof, including all amounts due for materials, and repairs on
machinery and equipment, and tools consumed or used in connection
with the construction of such WORK, and for all labor costs
incurred in such WORK including that by a SUBCONTRACTOR, and to any
mechanic or materialman lienholder whether he acquires his lien by
operation of state or federal law, then this obligation shall be
void, otherwise to remain in full force and effect.
PROVIDED, that beneficiaries or claimants hereunder shall be
limited to SUBCONTRACTORS, and persons, firms, and corporations
having a direct contract with PRINCIPAL or its SUBCONTRACTORS.
PROVIDED, FURTHER, that SURETY, for the value received hereby,
stipulates and agrees that no change, extension of time,
alteration, or addition to the terms of the CONTRACT, CONTRACT
DOCUMENTS, or to WORK to be performed thereunder or to the PLANS
AND SPECIFICATIONS accompanying same shall in any way affect its
obligation 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 PLANS AND
SPECIFICATIONS.
PROVIDED, FURTHER, that any suit or action commenced hereunder by
any claimant shall be in accordance with and subject to Texas
Revised Civil Statutes, Article 5160.
PROVIDED, FURTHER, that it is expressly agreed that the BOND shall
be deemed amended automatically and immediately, without formal and
separate amendments hereto, upon amendment to the CONTRACT not
increasing the contract price more than twenty per cent (20%), so
as to bind PRINCIPAL and SURETY to the full and faithful
performance of the CONTRACT as so amended. The term "Amendment",
wherever used in this BOND and whether referring to this BOND, the
CONTRACT, CONTRACT DOCUMENTS, or the PLANS AND SPECIFICATIONS,
shall include any alteration, addition, extension, or modification
of any character whatsoever.
PROVIDED, FURTHER, that no final settlement between OWNER and
CONTRACTOR shall abridge the right of the other beneficiary
hereunder, whose claim may be unsatisfied.
PROVIDED, FURTHER, that:
(1) Amounts owed by OWNER to CONTRACTOR under the CONTRACT shall
be used for the performance of the CONTRACT and to satisfy claims,
if any, under any construction performance bond. By CONTRACTOR
furnishing and OWNER accepting this BOND, they agree that all funds
earned by CONTRACTOR in the performance of the CONTRACT are
dedicated to satisfy obligations of CONTRACTOR and SURETY under
this BOND, subject to OWNER's priority to use the funds for the
completion of the WORK.
(2) Notices to SURETY, OWNER, or CONTRACTOR shall be mailed or
delivered to the address shown on the signature page. Actual
receipt of notice by SURETY, OWNER, or CONTRACTOR, however
accomplished, shall be sufficient compliance as of the date
received at the address shown on the signature page.
(3) Any provision in this BOND conflicting with a statutory or
legal requirement shall be deemed deleted herefrom and provisions
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conforming to such statutory or other legal requirement shall be
deemed incorporated herein. The intent is that this BOND shall be
construed as a statutory bond and not as a common-law bond.
(4) Upon request by any person or entity appearing to be a
potential beneficiary of this BOND, CONTRACTOR shall promptly
furnish a copy of this BOND or shall permit a copy to be made.
This BOND shall be performed in Kerr County, Texas.
IN WITNESS WHEREOF, this instrument is executed in
counterparts, each one of which shall be deemed an original, this
the day of 199
ATTEST:
Principal
Witness as to Principal
Address
ATTEST:
Witness to Surety
Approved as to form:
Date
NOTE:
Address
Surety
By
Attorney-in fact
Address
Owner
1. Date of BOND must not be prior to date of CONTRACT. If
CONTRACTOR is a partnership, all partners should execute BOND.
2. IMPORTANT: Surety companies executing BONDS must appear on
the Treasury Department's most current list (Circular 570 as
amended) and be authorized to transact business in the State of
Texas.
CONTRACTS/AGREEMENTS:U'AYMENT.BQN
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