Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :04-cv—OO163-GIVIS Document 170-2 _ Filed 08/22/2006 Page 1 of 1
L 1-hcqqmmetor and the Sure: y, jointly and ;qve;·d[ty_ bind tnemgelvee 6. After the Owncrhas terminated the Corltt`3€|0r`s right to complete tht;
mcg, ;,c;p_;_ executors, administrators, sneecgsqm and gsgigns to the Owner Construction Contract, and ifthc Surety elects to act underSuhpantgt~ap:l
[0,- me performance of the Construction Contract, which is incorporated 4{RI {$.2. og:.} aboveilthenhthe reieplonsgbtltlttcsiofthejuniy gm the Owner
· b mrcrenee, _ s a not gmatert an t cse o t e on rar: or un er c ons rnetton
gfrggmyccntmclor pmoms me Construction Comme" mc Sum? and conn-net, and the responsibilities of the Ogtcr to the Surety shall not be _
(hc Contractor shall have no obligation under this Bond, except to par- i§"°?'t°'tj ma" “‘°*° °f“"€ 0‘”"°‘" ““d°"g‘° °“““"’*E°“ C°““w- T° “
tieipate in eenrnenees as pmvreea at snrpmgnph i. t. _ ¤·?·;;¤ gx; amwetglgg ¤<·¤<¤· evt rg J¤ 3_ lf g§;?r¢ ile no Owner Default. the Surcty‘s obliga¤i0¤ ¤¤<¥¢Y ***5 BGM gn 1;:; Coggxgid; Cqn[‘|`i;;i?‘t;:1§f1r;:;g$ rfblighgl sriftgtgndupligtazigrig
shall arise a ter: I for
,1, The Owner has notified the Contractor and the Surety at its address ‘ - - · - · .
3 mutate an rmmpn to enew. that the owen at contracting ‘·‘· f,‘;‘x;‘%°“"°"{"§‘ °'}'}§_f§“ff;§Q§;’T§ (‘§]‘_§'f°Q§{{" °"’°"°°‘“’*‘>
¤¤¤*¤r*··t ¤ C··¤·¤··=*·=r °*=*¤·=*· and *==·== r=<=··—·=S··=<* M =¤=¤==·=~t==<* 6 2 Adna`Z.tt°%’.?§»° .t`1'§r° mriitrmt an eil? costs mr.-
ga at-range a conference with the Contractor and tim $¤t’¤¥v *0 b¢ ' ` {mm (hg emit;-a;;t¤y*$%5lt?autt and resulting from the action mg
held not later than fifteen days after receipt of such notice to failure m ad dmc Sum umicr Pamgm h 4, and S °r
discuss mcnwds °f mowing tec Ccnslmmmn c°mmct‘ if {bc 6 3 Li uidatetl dam es or iilno liquidated dgtmages are s cifi it ’
OW"°r’ m° €°"'m°'°gI“"° mc sum? agr°°‘ mc C°mm°*°r Shan ` I tht? Constmctio?tgContmct actual damages caused bzcdclgygg
be allowed a reascna c time to perform the Construction Core ‘ ·
lf¤¢i. but Such an agreement sltntl not waive the ()Wm,r·$ mgm if 7 Th P¤lf¤¤¤¤¥l€¢ 01* t¤¤tt·t>¢t‘formancc of the Contractor, l `
. e Surety shall not be liable to the Owner or others for oblrgahons of
any. subsequently to declare a Contractor Default; and the Contractor that are unrelated to the Construction Contract and th
3,3, The Owner has declared a Contractor Default and formally ter- Bai cc ofthe Comme: PHC Shan mi be reduced or Sd caogacc u °;
minated the Contractor`: right to complete the contract. Such {aan s ch unr lated 0bl' agen No ri ht of action chair accrue o (ih?
contractor Default shli not be declared earlier than ¤W¢¤¤Y days (éonlésaclgn gon D.- cnt? Din.; than tie Owner orits heirs cxcct?tor;s
ahcr the Contractor and the Surety have received notice as pro· administratxofs or successois - ’
3-3- "\;`§i§‘g¥t:¥iL;‘bl‘;=?;a rsizihe Balance of the (gummct prgcc Thc $u*¢iY l¤<’¤¤'¢¥>>' Y·'3iV¢S notice ot" any change. including Qh3|1ggg(?[ _
- - - · tmc, {0 the Construction Contract or to related subcontracls. purchase
to the Surety rn accordance with the terms oi` the Construction Orders and other Obligations.
Siiiiiii Elf L‘;§`ti§2i2?‘£l.i°i§i‘iSri?.’J’§??J?J2§.§2?ii.‘l’§‘2‘§2 ?,; i§‘§’t2L°.»$`21°€’£'$$.;Liiiilililiiiiilfftiliiil*$E£§§."i.§"t2i,lY‘éiil3.’E*lt‘f$‘iE
Owner. . . . . .
_ _ _ or art of the wor}: rs located and shall bemstrtutcd within two ears after
4. When the Owner has satrslied the conditions of Paragraph 3, the Surety colélractur Default 0, W;q,;,, ,,,0 years arm, the Contmcmr ceggcd work, _
salsa Pmmpuy and M mc Su"’*Y`i`· °xP°"S° mkc imc ef mc f°"°“’l“8 ing or within two years after the Surety refuses or fails to perfonn its g
ac *0**5: b ' ’ under h' Bo d, w ' it ve occurs fir t, the v' “o
4.l. Arrange forthe Contractor. with consentof the Owner. lo perform ghggggggargtaph M; aiid gr Prgzibsicdrby ra-w_ rg; ,;§n;m,?;) gg
md “”“¥’l°*° me C°“S'·mct’°" C°““`a°*i Gi limitation available to sureties as a defense in the jurisdiction of the suit f
4,2. Urtdcrtake to perform and complete the Construction Contract Shan be appgrcabm {
ilsdi-· lh"°“gh iis agcms 0* ihmugh indcimldcnl C¤"["a€*°*`$i ‘»"' I0. Notice to the Surety, the Owner or the Contractor shall be mailed or l
4.3. Obtain bids or negotiated proposals from qualified contractors derive;-cd lc me addmst-, Shomrn on the Signature page.
Bccqxablc m uw Owner fc"` “°°"“`a“ for P“f°""““°° and °°'“‘ ll. When this Bond has been furnished to comply with a statutory or
plerion ofthe Construction Contract. arrange for a contract to be other tggzt requirement in the mention where the construction was to " Q
prepared for execution by the Owner and the C0t1il'3Cl0f $€l¢€l¢d pgrfm-me,d, any provision in this Bond conflicting with said sl3tUl0F}·' · i
with the Owner s concurrence. to be secured with pcrfomtanw tcgatteqnirement shall be deemed deleted herefrom and provisions con-
mid Paymcm blmds cxcculcd bY a ‘!””"E°d su"°*Y °‘l“"'al°"* m fomnng to such statutory or other legal requirement shall ine deemed l
me mnds iswcd °"* the C°"$"”°ii°“ C°""“°*• and Pay *0 me incorporated herein. The intent is that this Bond shall be construed as a Q
Owner the amount of damages as described in Paragraph 6 in statutory bond and not as a Common law ;_,O“d_
excess oftthe Enlarge ofthe Conéract Price incurred bythe Owner ;2_ Dc6,,;t;0ns_ l
"°5*-‘ ling "°““ ‘°’ °“““°l°r`$ °f“”H¥ 0* I2.t. Balance ofthe Contract Price: The total amount pa able b the i
4.4. Wttive its fight to P¢f·l`¤¤'m and €`0mPl¢¥€· ¤f¤t¤8¢ for ¢¤mPl¢i?¤¤- Owner to the Contractor under the Construction Cgntract ifter
or obtain a new contractor and with reasonable promptness under all proper adjustments have been made, including allowance to l
llw ¤if€¤mS¢=1¤¤€$¢ the Contractor of any amounts received or to he received by l
·l. After investigation. determine the amount for which it may be the Owner in settlement of insurance or other claims for dam~
liable to the Owner and. as soon as practicable afterthe amount ages to which the Contractor is entitled, reduced by all valid
· is determined, tender payment therefor to the Owner; or and proper payments made to or on behalf of the Contractor
2. Deny liability in whole or in part and notify thc Owner citing under the Construction Contract. l
reasons therefor. l2,2. Construction Contract; The agreement between the Owner and I
5. lf the Surety does not proceed as provided in Paragraph 4 with reason- . the Contractor identified on the signature page, including ali
able promptness, the Surety shall be deemed to he in default on this Bond Contract Documents and changes thereto. j
hftcen days after receipt of an additional written notice from the Owner 12.3. Contractor Default: Failurcof the Contractor, which has neither
to the Surety demanding that the Surety perform its obligations under this been remedied nor waived. to perform or otherwise to comply i
Bond, and the Owner shall be entitled to enforce any remedy available to with the terms of the Construction Contract. {
_ the Owner. if the Surety proceeds as provided in Subpamgraph 4.4. and l2.4. Owner Default: Failure of the Owner, which has neither been l
the Owner refuses the payment tendered or the Surety has denied liability, remedied nor waived. to pay the Contractor as required by the 2
in whole onin part. without further notice the Owner shall be entitled to Construction Contract or to perform and complete or comply ‘
enforce any remedy available to the Owner. with the othcrterms thereof. l
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(FOR INFORMATION ONLY-——Name, Address and Telephone)
AGENT or BROKER: OWNERS REPRESENTATIVE (Architect, Engineer or other party): l
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Case 1:04-cv-00163-GMS

Document 170-2

Filed 08/22/2006

Page 1 of 1