Performance Bond - Performance Pipeline Technologies, Inc. - 2021-01-28Granite Surety Insurance Company
Performance Bond
CONTRACTOR: SURETY:
Performance Pipeline Technologies, Inc. Granite Re, Inc. DBA Granite Surety
5292 System Drive Insurance Company
Huntington Beach, CA 92648 14001 Quailbrook Drive
Oklahoma City, OK 73134
OWNER:
Costa Mesa Sanitary District
290 Paularino Ave.
Costa Mesa, CA 92627
CONTRACT:
Date: 01/28/2021
Amount: One Hundred Nineteen Thousand Six Hundred Fifty Dollars and No Cents ($119,650.00)
Description: Project # 328 Ductile Iron Pipe Rehabilitation Phase 1
BOND:
Bond#: GRCA50827
Date: 02/01 /2021
Amount: One Hundred Nineteen Thousand Six Hundred Fifty Dollars and No Cents ($119,650.00)
Modifications to this Bond: Z No FJ Yes, see last page
CONTRACTOR AS PRINCIPAL
Performance Pipeline Technologies, Inc.
SURETY
Granite Re, Inc. DBA Granite Surety Insurance Company
Signature: ��.�...�t`-� Signature: -
Name and Title:L yj �` Name and Title: Kenneth D. Whittington
Attorney -in -Fact
The Contractor and the 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.
If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond,
except to participate in conference; as provided in Subparagraph 3.1.
If there is no Owner Default, the Surety's obligation under this Bond shall arise after:
3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner
is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor
and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the
Construction Contract. 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; and
3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the
contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have
received notice as provided in Subparagraph 3.1; and
GR0614-15& 16-CA
3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the
Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the
contract with the Owner.
4. When the Owner has satisfied the conditions of Paragraph 3, the Surety shall within reasonable promptness and at the Surety's
expense take one of the following actions:
4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or
4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent
contractors; or
4.3 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 the 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 Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's
default; or
4.4 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, tender payment therefor to the Owner; or
Deny liability in whole or in part and notify the Owner citing reasons therefor.
5. If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in
default on this Bond fifteen 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 Subparagraph 4.4, and the Owner releases the payment tendered 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.
6. After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act
under Subparagraph 4.1, 4.2, or 4.3 above, 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. To the limit of the amount of this Bond, but subject to commitment by
the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is
obligated without duplication for the responsibilities of the Contractor for correction of defective work and completion of the
Construction Contract.
7. 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
or successors. The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be
credited for any payments made in good faith by the Surety.
8. 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.
9. 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 one year after Contractor Default or within one
year after the Contractor ceased working or within one year 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.
10. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page.
11. 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.
12. DEFINITIONS
GR0614-15& 16-CA
12.1 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.
12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page,
including all Contract Documents and changes thereto.
12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise
to comply with the terms of the Construction Contract.
12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required
by the Construction Contract or to perform and complete or comply with the other terms thereof.
13. Principal: The individual or entity named and listed under the section of this bond titled Contractor. The entity or individual
named as Contractor is not assignable.
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
NONE.
(Space is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL SURETY
Company: Company:
Signature:
Name and Title:
GR0614-15& 16-CA
Signature:
Name and Title:
Granite Surety Insurance Company
Payment Bond
CONTRACTOR: SURETY:
Performance Pipeline Technologies, Inc. Granite Re, Inc. DBA Granite Surety
5292 System Drive Insurance Company
Huntington Beach, CA 92648 14001 Quailbrook Drive
Oklahoma City, OK 73134
OWNER:
Costa Mesa Sanitary District
290 Paularino Ave.
Costa Mesa, CA 92627
CONTRACT:
Date: 01/28/2021
Amount: One Hundred Nineteen Thousand Six Hundred Fifty Dollars and No Cents ($119,650.00)
Description: Project # 328 Ductile Iron Pipe Rehabilitation Phase 1
BOND:
Bond#: GRCA50827
Date: 02/01 /2021
Amount: One Hundred Nineteen Thousand Six Hundred Fifty Dollars and No Cents ($119,650.00)
Modifications to this Bond: Q No ❑ Yes, see last page
CONTRACTOR AS PRINCIPAL
Performance Pipeline Technologies, Inc.
SURETY
Granite Re, Inc. DBA Granite Surety Insurance Company
Signature: Signature: _
Name and Title:, . Name and Title: Kenneth D. Whittington 44
Attorney -in -Fact >e
1. The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators,
Successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the
performance of the Construction Contract, which is incorporated herein by reference,
2. With respect to the Owner, this obligation shall be null and void if the Contractor:
2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and
2.2 Defends, indemnifies and holds harmless the Owner from all claims, demands, or suits by any person
or entity whose labor, materials or equipment were furnished for use in the performance of the Construction
Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in
Paragraph 12) of any claims, demands, or suits and tendered defense of such claims, demands, or suits to the
Contractor and the Surety, and provided there is no Owner Default.
3. With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment,
directly or indirectly, for all sums due.
GR0614-15&16-CA
4. The Surety shall have no obligation to Claimants under this Bond until:
4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the
Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a
claim is being made under this Bond and, with substantial accuracy, the amount of the claim.
4.2 Claimants who do not have a direct contract with the Contractor:
.1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner,
within 90 days after having last performed labor or last furnished materials or equipment included in the claim
stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were
furnished or supplied or for whom the labor was done or performed; and
.2 Have either received a rejection in whole or in part from the Contractor, or not received
within 30 days of furnishing the above notice any communication from the Contractor by which the Contractor
has indicated the claim will be paid directly or indirectly; and
.3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the
address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being
made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor.
5. Within a reasonable period of time after the claimant has satisfied the conditions of Paragraph 4 and after the
Surety has reviewed all supporting documentation it requested to substantiate the amount of the claim, the Surety
shall pay or arrange for payment of any undisputed and earned amounts. These amounts shall only be paid if
previously certified by the Architect or Engineer and paid to Contractor by Owner. Failure of the Surety to satisfy
the above requirements shall not be deemed a forfeiture or waiver of the Surety's or the Contractor's defenses
under this Bond or their right to dispute such claim. However, in such event the Claimant may bring suit against
the Surety as provided under this Bond.
6. The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be
credited for any payments made in good faith by the Surety.
7. Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance
of the Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the
Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in
the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety
under this Bond, subject to the Owner's priority to use the funds for the completion of the work.
8. The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated
to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant
under this Bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of,
or otherwise have obligations to Claimants under this Bond.
9. 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.
10. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction
in the location in which the work or part of the work is located or after the expiration of one year from the date
(1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last
labor or service was performed by Claimant or the last materials or equipment were furnished by Claimant under
the Construction Contract, whichever of (1) or (2) first occurs. 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.
11. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the
signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be
sufficient compliance as of the date received at the address shown on the signature page.
GR0614-15& 16-CA
12. 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.
13. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall
promptly furnish a copy of this Bond or shall permit a copy to be made.
14. DEFINITIONS
14.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor
of the Contractor to furnish labor, materials or equipment for use in the performance of the Contract. The intent
of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water,
gas, power, light, heat, oil, gasoline, telephone, service or rental equipment used in the Construction Contract.
14.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature
page, including all Contract Documents and changes thereto.
14.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor
as required by the Construction Contract or to perform and complete or comply with the other terms thereof.
15. Principal: The individual or entity named and listed under the section of the bond titled "Contractor". This
individual or entity is not assignable.
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
NONE.
(Space is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL SURETY
Company: Company:
Signature:
Name and Title:
GR0614-15&16-CA
Signature:
Name and Title:
GRANITE RE, INC. DBA GRANITE SURETY INSURANCE COMPANY
GENERAL POWER OF ATTORNEY
Know all Men by these Presents:
That GRANITE RE, INC. DBA GRANITE SURETY INSURANCE COMPANY, a corporation organized and existing under the laws of the State
of MINNESOTA and having its principal office at the City of OKLAHOMA CITY in the State of OKLAHOMA does hereby constitute and appoint:
KENNETH D. WHITTINGTON; KYLE MCDONALD its true and lawful Attorney-in-Fact(s) for the following purposes, to wit:
To sign its name as surety to and to execute, seal and acknowledge any and all bonds, and to respectively do and perform any and
all acts and things set forth in the resolution of the Board of Directors of the said GRANITE RE, INC. DBA GRANITE SURETY INSURANCE
COMPANY a certified copy of which is hereto annexed and made a part of this Power of Attorney; and the said GRANITE RE, INC. DBA
GRANITE SURETY INSURANCE COMPANY through us, its Board of Directors, hereby ratifies and confirms all and whatsoever the said:
KENNETH D. WHITTINGTON; KYLE MCDONALD may lawfully do in the premises by virtue of these presents.
In Witness Whereof, the said GRANITE RE, INC. DBA GRANITE SURETY INSURANCE COMPANY has caused this instrument to be sealed
with its corporate seal, duly attested by the signatures of its President and Assistant Secretary, this 3rd day of January, 2020.
SiE In? f A..�":►
OP. con°°""te yQ
SEAL Kenneth D. Whittin tJon, President
STATE OF OKLAHOMA
SS:
COUNTY OF OKLAHOMA) Kyle P. McDonald, Assistant Secretary
On this 3rd day of January, 2020, before me personally came Kenneth D. Whittington, President of the GRANITE RE, INC. DBA GRANITE
SURETY INSURANCE COMPANY and Kyle P. McDonald, Assistant Secretary of said Company, with both of whom I am personally acquainted,
who being by me severally duly sworn, said, that they, the said Kenneth D. Whittington and Kyle P. McDonald were respectively the President
and the Assistant Secretary of GRANITE RE, INC. DBA GRANITE SURETY INSURANCE COMPANY, the corporation described in and which
executed the foregoing Power of Attorney; that they each knew the seal of said corporation; that the seal affixed to said Power of Attorney
was such corporate seal, that it was so fixed by order of the Board of Directors of said corporation, and that they signed their name thereto
by like order as President and Assistant Secretary, respectively, of the Company.
y1;"Y;4 11"f�'
My Commission Expires:w�f�°f►--
April 21, 2023
*- Notary Public
Commission #: 11003620 '-.,;-#'
1,,,a��k+,�*
GRANITE RE, INC.
Certificate
THE UNDERSIGNED, being the duly elected and acting Assistant Secretary of GRANITE RE, INC. DBA GRANITE SURETY INSURANCE COMPANY,
a Minnesota Corporation, HEREBY CERTIFIES that the following resolution is a true and correct excerpt from the July 15, 1987, minutes of the
meeting of the Board of Directors of GRANITE RE, INC. DBA GRANITE SURETY INSURANCE COMPANY and that said Power of Attorney has not
been revoked and is now in full force and effect,
"RESOLVED, that the President, any Vice President, the Assistant Secretary, and any Assistant Vice President shall each have authority
to appoint individuals as attorneys -in -fact or under other appropriate titles with authority to execute on behalf of the company
fidelity and surety bonds and other documents of similar character issued by the Company in the course of its business. On any
instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any instrument conferring such
authority or on any bond or undertaking of the Company, the seal, or a facsimile thereof, may be impressed or affixed or in any other
manner reproduced; provided, however, that the'seal shall not be necessary to the validity of any such instrument or undertaking."
IN WITNESS WHEREOF, the undersigned has subscribed this Certificate and affixed the corporate seal of the Corporation this
1 st day of February , 20 21 Nt7E R,
SEAL
Kyle P. McDonald, Assistant Secretary'
G R0800-1