Performance Bond - Avala Engineering, Inc. - 2020-12-08THE FINAL PREMIUM IS
PREDICATED ON THE
FINAL CONTRACT AMOUNT
Performance Bond
CONTRACTOR:
Ayala Engineering, Inc.
8482 E. Meadowridge St.
Anaheim, CA 92808
OWNER:
Costa Mesa Sanitary District
628 W. 19th Street
Costa Mesa, CA 92626
CONSTRUCTION CONTRACT
Date: 12/04/2020
Bond Number: 024248509
Premium: $1,834.00
SURETY:
The Ohio Casualty Insurance Company
790 The City Drive South, Suite 200
Orange, CA 92868
Amount: $73,353.00 Seventy Three Thousand Three Hundred Fifty Three And 00/100
Dollars
Description:
#324 Sewer Manhole Rehabilitation -Phase 2
Job/Contract No.:
BOND
Date: 12/08/2020
(Not earlier than Construction Contract Date)
This document has important
legal consequences. Consultation
with an attorney is encouraged
with respect to its completion or
modification.
Any singular reference to
Contractor, Surety, Owner or
other party shall be considered
plural where applicable.
This document combines two
separate bonds, a Performance
Bond and a Payment Bond, into
one form. This is not a single
combined Performance and
Payment Bond.
Amount: $73,353.00 Seventy Three Thousand Three Hundred Fifty Three And 00/100 Dollars
Modifications to this Bond: ® None
❑ See Section 16
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corporate Seal) Company: (Corporate Seal)
Ayala Engine nc. The Ohio Casualty surance Company
Signature Signature:
Name Ricardo Ayala Name Frank Morones
And Title: President and Title: Attorney -in -Fact
(Any additional signatures appear on the last pale of this Performance Bond.)
(FOR INFORMATION ONLY— Name, address and telephone)
AGENT or BROKER: OWNER'S REPRESENTATIVE:
By arrangement with the American Institute of Architects, the National Association of Surety Bond Producers
(NASBP) (www.nasbp.org) makes this form document available to its members, affiliates, and associates in
c Microsoft Word format for use in the regular course of surety business. NASBP vouches that the original text of
this document conforms exactly to the text in AIA Document A312-2010, Performance Bond and Payment
Bond. Subsequent modifications may be made to the original text of this document by users, so careful review of
its wording and consultation with an attorney are encouraged before its completion, execution or acceptance.
Commercial Surety Bond Agency (Architect, Engineer or other part' :)
1411 N. Batavia St., Suite 201
Orange, CA 92867, (714) 516-1232
1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner
for the performance of the Construction Contract, which is incorporated herein by reference.
S 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except when
applicable to participate in a conference as provided in Section 3.
3 if there is no Owner Default under the Construction Contract, the Surety's obligation under this Bond shall arise after
.1 The Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default.
Such notice shall indicate whether the Owner is requesting a conference among the Owner, Contractor and Surety to discuss the
Contractor's performance. If the Owner does not request a conference, the Surety may, within five (5) business days after receipt
of the Owner's notice, request such a conference. If the Surety timely requests a conference, the Owner shall attend. Unless the
Owner agrees otherwise, any conference requested under this Section 3.1 shall be held within ten (10) business days of the
Surety's receipt of the Owner's notice. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a
reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any,
subsequently to declare a Contractor Default;
.2 The Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety; and
.3 The Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to
the Surety or to a contractor selected to perform the Construction Contract.
§ 4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a
condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual
prejudice.
§ 5 when the Owner has satisfied the conditions of Section 3, the Surety shall promptly and at the Surety's expense take one of the following
actions:
5.1 Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract;
5.2 Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors;
5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of
the Construction Contract, arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's
concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the
Construction Contract, and pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price
incurred by the Owner as a result of the Contractor Default; or
5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the
circumstances:
.1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is
determined, make payment to the Owner; or
.2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial.
6 If the Surety does not proceed as provided in Section 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond
seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under
this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Section 5.4, and
the Owner refuses the payment or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to
enforce any remedy available to the Owner.
§ 7 if the Surety elects to act under Section 5.1, 5.2 or 5.3, then the responsibilities of the Surety to the Owner shall not be greater than those of
the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the
Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety is
obligated, without duplication, for
.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract;
By arrangement with the American Institute of Architects, the National Association of Surety Bond Producers
J "k. (NASBP) (www.nasbp.o) makes this form document available to its members, affiliates, and associates in
E Microsoft Word format for use in the regular course of surety business. NASBP vouches that the original text of
this document conforms exactly to the text in AIA Document A312-2010, Performance Bond and Payment
Bond. Subsequent modifications may be made to the original text of this document by users, so careful review of
its wording and consultation with an attorney are encouraged before its completion, execution or acceptance.
.2 additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or
failure to act of the Surety under Section 5; and
.3 liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed
performance or non-performance of the Contractor.
8 if the Surety elects to act under Section 5.1, 5.3 or 5.4, the Surety's liability is limited to the amount of this Bond.
9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract,
and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall
accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, successors and assigns.
§ 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts,
purchase orders and other obligations.
§ 11 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 two years after a declaration of Contractor Default or within two years after
the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever
occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a
defense in the jurisdiction of the suit shall be applicable.
12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their
signature appears.
§ 13 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 therefrom and
provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that
this Bond shall be construed as a statutory bond and not as a common law bond.
14 Definitions
14.1 Balance of the Contract Price. The total amount payable by the Owner to the Contractor under the Construction Contract after all
proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in
settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or
on behalf of the Contractor under the Construction Contract.
§ 14.2 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract
Documents and changes made to the agreement and the Contract Documents.
14.3 Contractor Default. Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a
material term of the Construction Contract.
§ 14.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the
Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract.
14.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor.
15 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be
Subcontractor and the term Owner shall be deemed to be Contractor.
§ 16 Modifications to this bond are as follows:
By arrangement with the American Institute of Architects, the National Association of Surety Bond Producers
(NASBP) (www.nasbp.org) makes this form document available to its members, affiliates, and associates in
t Microsoft Word format for use in the regular course of surety business. NASBP vouches that the original text of
this document conforms exactly to the text in AIA Document A312-2010, Performance Bond and Payment
Bond. Subsequent modifications may be made to the original text of this document by users, so careful review of
its wording and consultation with an attorney are encouraged before its completion, execution or acceptance.
(Space is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corporate Seal) Company: (Corporate Seal)
Signature:
Name and Title:
'address:
Signature:
Name and Title:
Address:
By arrangement with the American Institute of Architects, the National Association of Surety Bond Producers
(NASBP) (www.nasbp.org) makes this form document available to its members, affiliates, and associates in
c Microsoft Word format for use in the regular course of surety business. NASBP vouches that the original text of
this document conforms exactly to the text in AIA Document A312-2010, Performance Bond and Payment
Bond. Subsequent modifications may be made to the original text of this document by users, so careful review of
its wording and consultation with an attorney are encouraged before its completion, execution or acceptance.
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of ORANGE )
On r� , before me, YONGSEOK CHOI, NOTARY PUBLIC
(insert name and title of the officer)
personally appeared RICARDO AYA LA
who proved to me on the basis of satisfactory evidence to be the person(,) whose name( a^
subscribed to the within instrument and acknowledged to me tha re/they executed the same in
is h4'r/theeir authorized capacity(ids), and that b i ` I &/their signature(pl on the instrument the
person{, or the entity upon behalf of which the person) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
.f
Signature
Or
YONGSEOK CHOI
�tpa COMM. # 2225992
V1 S $ NOTARY PUBLIC-CALIFORNIA Ili
COUNTY OF ORANGE
MY COMM. EXP..JAN. 17, 2022
(Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document, to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Orange )
On 12/08/2020 before me,
Melissa Ann Vaccaro
(Insert name and title of the officer)
, Notary Public
personally appeared Frank Morones
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity (ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
sE� �F Tti MELISSA ANN VACCARO
94
WITNESS m hand and official seal. COMM. #22413or M
y ° ` o Notary Public -California X
�:. ORANGECOUNTY LL
=FoaN' My Comm. Expires May 12, 2022
Signature (Seal)
This Power of Attorney limits the acts of those named herein, and they have no authority to
bind the Company except in the manner and to the extent herein stated. Bond No. 024248509
Liberty Mutual Insurance Company
The Ohio Casualty Insurance Company Certificate No: 8202806 - 969561
'��� an West American Insurance Company
Y
POWER OF ATTORNEY
KNOWN ALL PERSONS BY THESE PRESENTS: That The Ohio Casualty Insurance Company is a corporation duly organized under the laws of the State of New Hampshire, that
Liberty Mutual Insurance Company is a corporation duly organized under the laws of the State of Massachusetts, and West American Insurance Company is a corporation duly organized
under the laws of the State of Indiana (herein collectively called the "Companies"), pursuant to and by authority herein set forth, does hereby name, constitute and appoint,
Arturo Ayala, Daniel Huckabay, Frank Morones, R. Nappi, Dwight Reilly, Shaunna Rozelle Ostrom, Ben Stong, Michael D. Stong
all of the city of Orange state of CA each individually if there be more than one named, its true and lawful attomey-in-fact to make,
execute, seal, acknowledge and deliver, for and on its behalf as surety and as its act and deed, any and all undertakings, bonds, recognizances and other surety obligations, in pursuance
of these presents and shall be as binding upon the Companies as if they have been duly signed by the president and attested by the secretary of the Companies in their own proper
persons.
IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Companies and the corporate seals of the Companies have been affixed
thereto this 31 st day of December , 2019
Liberty Mutual Insurance Company
py �Nsu �JY INS& OASU The Ohio Casualty Insurance Company �,
°RP°��r �►� Jam° ` rcc
T �t+� ` OR4 West American Insurance Company
1912 n 0 ` 1919 1991 Cn
+� p O
By
David M. Carey, Assistant Secretary y
M State of PENNSYLVANIA c
:,3, County of MONTGOMERY ss
42 :43) On this 31 st day of December 2019 before me personalty appeared David M. Carey, who acknowledged himself to be the Assistant Secretary of Liberty Mutual Insurance 0
o m Company, The Ohio Casualty Company, and West American Insurance Company, and that he, as such, being authorized so to do, execute the foregoing instrument for the purposes f c i
therein contained by signing on behalf of the corporations by himself as a duly authorized officer.
— IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my notarial seal at King of Prussia, Pennsylvania, on the day and year first above written. c n
c PA M
O ` COMMONWEALTH OF PENNSYLVANIA Q �
0 x _. F, .. { Notarial Seal c
0 W .,i
i Teresa Pastella, Notary PuW � � 0 IC
Upper MeianTwp., Montgrzrnery County By: 3
` My Coamnission Expires Marcos 28, 2t21
�` Teresa Pastella, Notary Public
(U�,: `. ryCL Member, Pvrlmtyty wa AUoczutior, of Now** � O
a? This Power of Attorney is made and executed pursuant to and by authority of the following By-laws and Authorizations of The Ohio Casualty Insurance Company, Liberty Mutual ,
0 .S Insurance Company, and West American Insurance Company which resolutions are now in full force and effect reading as follows:
o ARTICLE IV — OFFICERS: Section 12. Power of Attorney.
Any officer or other official of the Corporation authorized for that purpose in writing by the Chairman or the President, and subject to such limitation as the Chairman or the '� -0
President may prescribe, shall appoint such attomeys-in-fact, as may be necessary to act in behalf of the Corporation to make, execute, seal, acknowledge and deliver as surety >
a)any and all undertakings, bonds, recognizances and other surety obligations. Such attorneys -in -fact, subject to the limitations set forth in their respective powers of attorney, shall = �
L have full power to bind the Corporation by their signature and execution of any such instruments and to attach thereto the seal of the Corporation. When so executed, such N
z0 instruments shall be as binding as if signed by the President and attested to by the Secretary. Any power or authority granted to any representative or attomey-in-fact under the
provisions of this article may be revoked at any time by the Board, the Chairman, the President or by the officer or officers granting such power or authority. o 0
ARTICLE XIII — Execution of Contracts: Section 5. Surety Bonds and Undertakings. 0
Any officer of the Company authorized for that purpose in writing by the chairman or the president, and subject to such limitations as the chairman or the president may prescribe, 1—
shall appoint such attomeys-in-fact, as may be necessary to act in behalf of the Company to make, execute, seal, acknowledge and deliver as surety any and all undertakings,
bonds, recognizances and other surety obligations. Such attomeys-in-fact subject to the limitations set forth in their respective powers of attorney, shall have full power to bind the
Company by their signature and execution of any such instruments and to attach thereto the seal of the Company. When so executed such instruments shall be as binding as if
signed by the president and attested by the secretary.
Certificate of Designation — The President of the Company, acting pursuant to the Bylaws of the Company, authorizes David M. Carey, Assistant Secretary to appoint such attomeys-in-
fact as may be necessary to act on behalf of the Company to make, execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety
obligations.
Authorization — By unanimous consent of the Company's Board of Directors, the Company consents that facsimile or mechanically reproduced signature of any assistant secretary of the
Company, wherever appearing upon a certified copy of any power of attorney issued by the Company in connection with surety bonds, shall be valid and binding upon the Company with
the same force and effect as though manually affixed.
I, Renee C. Llewellyn, the undersigned, Assistant Secretary, The Ohio Casualty Insurance Company, Liberty Mutual Insurance Company, and West American Insurance Company do
hereby certify that the original power of attorney of which the foregoing is a full, true and correct copy of the Power of Attorney executed by said Companies, is in full force and effect and
has not been revoked.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this 8th day of December , 2020 .
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a3��.d Renee C. Llewellyn, Assistant Secretary