by this court for nearly fifty years this case presents a situation where the developer furnished bonds to cover public work but the bonds did not have specific provisions for payment obligations a payment rather the act only requires a bond for contracts involving public work in other words the bond requires a public works bond which is the truth or label performance the bond act further states that if those conditions are not included in the bonds than such payment and performance provisions are deemed to be included in those bonds it's well established under illinois law that when a bond is mandated by the statute the provisions of that statute are incorporated into the bar and that is a position previously enunciated by this court in the r with kids and that deposition has been and that ruling has been followed by courts there after that rule is especially true when the statute specifically deems in its provisions that it is to be payment however the term payment on time is not used in the bond act at all course cannot rewrite statutes by adding provisions that do not exist in finding that a the contractor therefore neither of those cases involved a situation where any bond for public works had been promised but the bond did not contain a payment provision found that behind the x deeming language or language deeming a payment provision applies only to balance that already contain payment provisions however that intra potations of the bond act would ren the statutory language as stated by the seventh circuit in the concrete structures case and i crawled by operation of the law every public construction pound is in compliance with the also argues that the village did not comply with the bond act because of section three point eight of the infrastructure agreements limited the amount of the bonds to the cost covered by the s s a or special service area bonds however section three point eight of the infrastructure agreements only limits the amount of the bonds but not the scope of the bar and under the bond act the public amity may fix the amount of the  in this case the balance ever furnish exceeded eighteen billion dollars which far exceeded the amount that was claimed by the plaintiff furthermore the bonds made no reference to the infrastructure agreements the and the work performed by the plaintiff was within the scope of those plans and specifications the plaintiff makes the argument that the bonds did not cover two phases in the club  subdivision phases two and four however the plaintive does not the sort of claim in these proceedings or payments in connection with those two faces their claim is based upon only phases one and three suing to enforce the ban their claim is is based upon the bond to put if the contract is in a third party beneficiary yes so that raises the issue as to whether the plaintiff should be considered to be a third party beneficiary under these infrastructure contracts or agreements and that is where there is a split in the  that the sub contractor it wasn't intended beneficiary in accordance with the carson purity scotto ruling by the score is there evidence in the agreement between the village and newman that the plaintiff was an intended third party beneficiary it's our position that no such provision exists in these infrastructure agreements the appellate court found and relied upon a fragment of only one sentence which referenced that the plaintiff could retain i'm sorry newman homes could retain some contractors but that sounds goes on and says that they could retain subcontractors without complying with the competitive bidding statutes of the state it had no provision for the payment of obligations to the sub contractors so therefore we respectfully submit that there is no basis in the underlying contract by which a quarter can find that the plaintiff was an intended beneficiary then why did why is the   contractors turned in in the contract that both parties agreed if there wasn't some sort of agreement that the contract is somewhere about well the only involvement that they would be involved but only that high school where they found that there were provisions whereby the public owner would assure that payments would be made to the sub contractors so therefore the shock interservice court found that the claim furthermore that even if a court does find that there is third party beneficiary status the plaintiff's claim is barred by certain basic contract concepts first of all under contract law a contract i claim and must comply with all conditions preceding and under the contract and if the bond act is incorporated into the contract then they must sorry saying that a third party beneficiary is your defense that third that have to proceed only against the bond or kind of the proceed directly against the village for me mostly see what our the standing as a third party beneficiary they did not comply with the notice requirements the notice requirement it has to do with the bond so yes right under section two of the bond after that and under contract law it is a cor and if it and in this case they failed to give notice with and one hundred eighty that pursuant to their business decision conscientious business decision that they did not want to punish their relationship with no man holmes by the time they finally did give notice all their rights under the bond had expired and so what they are trying to do here is to be placed in a position it better because now they would be if there was a payment to serve notice within one hundred days of class performers and that notice only goes to the public entity and to the contractor there is no requirement that the noise has to be served upon the sure does not increase any liability to public entities that did not exist before the enactment of the binding so before then you had committed the bond act there was no duty for the  public entities to obtain bonds so therefore the failure to obtain bombs would not be an action will be an action that is prohibited under the behind act language by not increasing the liability t complied fully with the requirements of the buyback by obtaining bonds that related to the public work and that by virtue of the specific language of the bond act payment  and then for the for the reason that if for some reason the score finds that the bonds up ten by the village did not satisfy the requirements of the bond act bad there was no will that the plaintiff has no cause of made that binding by considering only a fragment of one cent and if they had considered the entire site and showed that bad santa this was for the benefit of newman homes saying that they were not required  we're both done martina bitch on behalf of lake county grading i want to put this in context by discussing the facts which are really not well they're set out of race but not really well developed this is not a traditional type of public works project any are embarking on an unconventional development agreement there were no public bit as there was no appropriation done by a village  funds or taxpayer funds in the traditional sense what happened was this there was this special that the s s a the special service area and bought and financial bonds were created to pay for this particular and what's important is that the court understand that the entitlement documents the contract between newman and the village were a couple of documents there was an annexation agreement and there was a developmental agreement and it rose out of a lawsuit this agreement came as a result of some of the lawsuit between the village of any aki and some other entity now what's important is the agreement provided that public improvements will be funded from the proceeds of the bonds issued in connection with the s s eight and the developer was not required to provide performance guarantees to secure the installation of public improvements to the extent of funding and i'm going to quote two small sections of the intel he was provided quote the village shall recognize the proceeds from the sale of the bonds in connection with the s s a as fully satisfied the developer's obligation to provide for security and then went on to say no security is required for that portion of the cost of the public improvements that are to be paid from the bond proceeds and then the construction of the public improvements will be funded in part by the proceeds of bands shouldn't connection with us a say the developer shall serve as the village contractor in connection with that construction and shall be permitted to draw upon the bond proceeds for the purpose of paying subcontractors in connection with said construction so i know that villages been harsh with the or by claiming well they're just taking a small section of another provision to support a third party beneficial agreement but this provision that i just read it clearly addresses that it is an under five fifty square one  of the village said if those provisions are not included they're deemed to be included that's not the statute says the statute says that the bombshell be conditioned upon the payment and the performance such fine or not doesn't it seem to say that if there is a bond one bond and it doesn't contain some language then we're going to read in this language and may why am i reading that incorrectly  language is missing some important language is missing not that someone was missing it it's the condition as must look at the condition is missing right ok then why doesn't the say each such fine is deemed to contain the following provisions whether such provisions are have to to incorporate a provisional payment plan to incorporate payment provisions or performance prime to incorporate performance specific provisions right that's the bridge basically the position they took and that's what your take and i think that's what the general about performance but then it goes on to say deemed it contains certain provisions whether such provisions are inserted a certain it into such brown or not where is there any differentiation between the provisions that are incorporated it has to it they haven't and those two elements in there otherwise it's not such a per you're calling the language that i just quoted a performance bond language very well that would be one section right so why would get if it if it spells out performance why would you need a further provision any other provision that is it in here why would that not why wouldn't payment then be part and parcel of what you call performance because the legislature didn't intend to create a payment balance of performance but the reason them language that further says anything that's not in here is incorporated and you would say well the only thing you can incorporate into that they had cereal is is payment well it's already spelled out payment so  when it spells out performance why would the payment be included in incorporated because it's not in the provision itself the legislature put the language in quotes ok it says the following limit language shall be deem to be in the body not the reason for that is to cover any shortcomings of payment for performance bonds you have bonds that are written very cryptically it's my just say it will cover payment well what does that mean the statutory language that the legislature requires to be deemed to be in there takes care of any ambiguity takes care of any argument as to what it means when you just say payment that's the purpose of that step toward requirement that it you know just just at a bond whether be in the can you can satisfy but having two separate bond but a bond be conditioned on those two things condition on payment and conditioned on performance is a two step with application binding companies about and it's you know contract language you look at the bottom you see what it covers it doesn't cover that it doesn't at least condition that upon payment there's no way you can have a claim for claiming to be a payment  and performance it can't be won you know what this is what the village is asking this court to do is when we were supposed to be here attempting to look at the plain language of the statute what the villages agreed to pay that's correct and surely going down by the by its contract contract law applies to surety bonds and surely he's not going to honor a bond that's not a lease conditioned upon payment i want i don't want to go back to my question again because i just don't understand your your your argument seems to be that when five fifty slash one is talking about payment it's very isn't it basically your argument when it says it's incorporate provision for pain is a result of language just set forth in quotes by my staff and i go back to my initial question according from five fifty flesh one listening to your argument that five fifty slash one deals with payment on bind we've gone through that a number of times shelby condition for the completion of the contract for the payment of materials from the work and for all we were performing the work whether by some can't contract or otherwise does that not sound like five fifty slash one deals with performance it does but it goes on to say in order in order for that prevent bond that's issued an arrest section it and approve and upon approval the payment was secured from the s s a funds and paid to the subcontractors at the time of that movement breach of contract with any act there was one point seven million dollars of improvement funds available pale a kind of grading the village failed to have sufficient performance bounds to cover the completion of the work and the use improvement fun monies instead of paying lip kind of grading and must be understood here that the village has received public improvements that were contracted for but they have not paid disagree with your interpretation of the bond that we've been talking about do you have any other avenue of recovery if you find that language is imputed then the answer is no thank you thank you i will make your remark short because i believe that the court does fully understand the issues in this case the key the language in the bond act is in the first sentence of five fifty slash one which states th nature of the bond that must be furnished and it only requires that he bound be furnished for contracts involving public works so we're dealing with the public works by and once those bonds are issued that on the evening one wage that is set forth or formulas and payments are incorporated into each of those public works bought and sold there therefore the village fully comply with the requirements under the bond act by obtaining bonds back cover all the work that was performed by the plate and in the play therefore it's not paid by this developer they had one hundred eighty days to assert their rights under the bond at which they purposely did not pursue for business purposes that was their remedy they chose not to pursue their remedy excuse at this time