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HomeMy WebLinkAbout2011-312 AMS - Warren Hay Mechanical Contractors for Geothermal HVAC Installation at Link Building [Departmental Use Only] TITLE #30035 Link Geothermal Install FY FY2011-12 NORTH CAROLINA CONSTRUCTION AGREEMENT UNDER$1,000,000.00 ORANGE COUNTY THIS CONSTRUCTION AGREEMENT (hereinafter called "Agreement"), made as of the 19th day of September, 2011, by and between Warren Hay Mechanical Contractors, (hereinafter called the "Contractor"), and Orange County, a body politic and a political subdivision of the State of North Carolina, (hereinafter called the "Owner"). WITNESSETH: That the Contractor and the Owner, for the consideration herein named, agree as follows: 1. CONTRACT DOCUMENTS; PRIORITY The Contract Documents consist of this Agreement, the Request for Proposals, Proposal, Construction Drawings and Written Specifications. The Contract Documents form the Contract and are fully incorporated herein. In the event of any inconsistency between or among the Contract Documents the Contract Documents shall be interpreted in the following order of priority: a. This Agreement. b. Designer Approved Bulletins and/or Field Orders. c. Request for Proposals and addenda thereto. d. Proposal. 2. SCOPE OF WORK The Contractor shall furnish and deliver all of the materials, and perform all of the work required by this Agreement within the time period stipulated in a written Notice-to-Proceed to be executed by the Contractor and Owner and in accordance with the following enumerated documents, which are made a part hereof as if fully contained herein: a. Construction Drawings prepared by Reece, Noland & McElrath, Inc. (Sheet set including CO.1, MO.1, M1.1, M1.2, M2.1, M3.1, M4.1, M5.1, M5.2, ELI, E2.1, E3.1 dated 6/24/2011) b. Written specifications prepared by the project engineer. c. Bid proposal dated June 27, 2011 which fully describes the work to be performed, such work(hereinafter called the"Work"). d. Related documents listed under Section 1 above. Revised December 2010 1 3. TERM AND SCHEDULING a. The Contractor agrees to commence work pursuant to the written Notice-to Proceed. b. The Contractor agrees to complete substantially all Work included by March 31, 2012. c. Time is of the essence with respect to all dates specified in the Contract Documents as Completion Dates. d. The Contractor shall perform the Work in the time, manner and form required by the Contract Documents and as stipulated in a written Notice-to-Proceed to be executed by the Contractor and Owner. e. It is expressly understood that the Owner will employ other contractors to perform work as a part of the Project whose work will be performed simultaneously and sequentially with the performance of the Work by the Contractor. It shall be necessary for the Contractor to coordinate its activities with such other contractors, particularly with respect to access to work areas, storage of materials and other common facilities. f. Should the Owner determine that the Contractor is behind schedule Owner may require, at no additional cost to the Owner, the Contractor to expedite and accelerate its efforts, including providing additional resources and working overtime, as necessary, to perform the Work in accordance with the approved project schedule. 4. STANDARD OF CARE a. The Contractor shall exercise reasonable care and diligence in performing the Work in accordance with the highest generally accepted standards of this type of Contractor practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the performance of these services. Contractor is solely responsible for the professional quality, accuracy and timely completion and/or submission of all work. b. The Contractor shall not load or permit any part of the Work to be loaded with a weight that will endanger its safety, intended performance or configuration. c. Contractor shall be responsible for all errors or omissions, in the performance of the Agreement. Contractor shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the Owner. d. Contractor is an independent contractor of Owner. Any and all employees of the Contractor engaged by the Contractor in the performance of any work or services required of the Contractor under this Agreement, shall be considered employees or agents of the Contractor only and not of the Owner, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Contractor. e. Contractor agrees that Contractor, its employees, agents and its subcontractors, if any, shall Revised December 2010 2 be required to comply with all federal, state and local antidiscrimination laws, regulations and policies that relate to the performance of Contractor's services under this Agreement. f. If activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Contractor represents that it and/or its employees, agents and subcontractors engaged in such activities possess such licenses, certifications, or credentials and that such licenses certifications, or credentials are current, active, and not in a state of suspension or revocation. 5. PAYMENT & TAXES a. The Owner hereby agrees to pay to the Contractor for the faithful performance of this Agreement, and the Contractor hereby agrees to perform all of the Work for a sum not-to- exceed Six Hundred Seventy Nine Thousand Three Hundred Twenty Six Dollars ($679,326). Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the Owner's Representative, generally the architect if an architect is retained on the Work, a Request for Payment for work done during the previous calendar month. i. The Request for Payment shall be in form of a standardized invoice or AIA Document G702-703 appropriately addressed to Owner's Representative at Orange County and shall show substantially the value of work done during the previous calendar month. ii. The amount due for payment shall be ninety-five percent (95%) of the value of work completed since the last Request for Payment and this amount shall be paid by the Owner on or before the last business day of the month. Owner shall retain five percent(5%). iii. Upon Owner's Representative's certification that fifty percent (50%) of the Work has been satisfactorily completed, Owner with written consent of surety shall not retain any further retainage from periodic payments due the Contractor, provided the Contractor continues to perform satisfactorily and any nonconforming work identified in writing prior to that time by the Owner's Representative. If Owner determines that Contractor's work is unsatisfactory, the Owner may reinstate retainage. iv. Final payment shall not be due to the Contractor until thirty (30) days after one hundred percent (100%) of the Work, including punch list work, has been satisfactorily completed and an appropriate affidavit as required in Section 7(c) below has been received by Owner. b. Should Owner reasonably determine that Contractor has failed to perform the Work related to a Request for Payment, Owner, at its discretion may provide the Contractor ten (10) days to cure the breach. Owner may withhold the accompanying payment without penalty until-such time as Contractor cures the breach. i. Should Contractor or its representatives fail to cure the breach within ten (10) days, or fail to reasonably agree to such modified schedule, Owner may immediately terminate this Agreement in writing, without penalty or incurring further obligation to Contractor. Revised December 2010 3 ii. This section shall not be interpreted to limit the definition of breach to the failure to perform the Work related to a Request for Payment. c. The Contractor has included in the Contract Price and shall pay all taxes assessed by any authority on the Work or the labor and materials used therein. It shall be the Contractor's responsibility to furnish the Owner documentary evidence showing the materials used and sales and use tax paid by the Contractor and each of its subcontractors. 6. INSURANCE AND BONDS a. Minimum requirements — The Contractor shall obtain, at its sole expense, all insurance required under this Agreement and the Contractor shall not commence work until such insurance is in force nor shall the Contractor allow any Subcontractor to commence work on its subcontract until all insurance required to be procured by Subcontractors hereunder has been so obtained by or for the Subcontractor. All required insurance shall be procured from insurance companies licensed to do business in North Carolina with a Best's Insurance Guide Rating of A- or better. Coverage for the following types of insurance shall be maintained continuously during the life of the Project until Final Completion of the Work. Coverages shall be maintained continuously during the life of the Project until Final Completion of the Work for the following types of insurance in the amounts listed: i. Worker's Compensation Insurance with limits for Coverage A Statutory - State of North Carolina and Coverage B Employers Liability $500,000 each accident and policy limit and disease each employee. ii. Comprehensive General Liability and Property Damage Insurance ($500,000 Each Occurrence; $1,000,000 Aggregate). iii. Contractual Liability (Bodily ,Injury and Property Damage $500,000 Each Occurrence; Property Damage $1,000,000 Aggregate). iv. Personal Injury, with Employment Exclusion deleted($1,000,000 Aggregate). v. Comprehensive Automobile Liability Insurance (Bodily Injury $100,000 Each Person/Each Accident, $300,000 Each Occurrence; Property Damage $100,000 Each Occurrence). b. Additional Insured — The Owner shall be named as additional insured on all forms of insurance except Worker's Compensation. Each certificate of insurance and policy required hereunder, except the worker's compensation policy, shall bear the provision that The policy cannot be canceled or reduced in amount and that coverage cannot be eliminated in less than thirty (30) days after mailing written notice to the Owner of such alteration, cancellation, or elimination,the written notice to be sent by Certified Mail." c. Performance Bonds — Contractor shall furnish bonds covering the faithful performance of the Contract and payment of all obligations arising under any of the Contract Documents or related in any way to the Work. Contractor shall immediately furnish a copy of such bonds to any requesting person who appears to be a potential beneficiary of bonds covering payment obligations arising under any of the Contract Documents. Revised December 2010 4 7. INDEMNITY a. The Contractor shall indemnify and hold harmless to the extent permitted by law the Owner and its agents and employees from and against any and all claims, damages, losses and expenses, including attorney's fees, arising out of or resulting from the performance or nonperformance of the Work, provided that any such claim, damages, loss or expense (A) is attributable to bodily injury, sickness, disease or death or injury to, or destruction of, property, including the loss of use resulting therefrom; and (B) is caused in whole or in part by any breach of any provision of the Agreement or by any negligent or wrongful act or omission of the Contractor, any Subcontractor, or supplier of the Contractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The indemnification obligation under this paragraph shall not be limited in any way by any limitation of the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor under workers' compensation acts, disability benefits acts or other employee benefit acts. b. The Contractor shall indemnify and hold harmless Owner from any lien of whatever type through the purchase of appropriate bonds and insurance as designated in Section 6 above. c. Upon completion of the Work the Contractor shall execute an affidavit stating there are no unpaid debts for any work that has been done or materials that have been furnished to the Project prior to and as of the date of substantial completion and further stating that Contractor shall indemnify, save and protect Owner and Owner's lender, if any, harmless from and against any and all claims, liabilities, losses, damages, causes of action, and expenses (including court costs and reasonable attorney's fees related thereto) arising out of, in connection with, or resulting from any such debts and liens in a form and substance mutually acceptable to Owner and Contractor. d. By executing this Agreement Contractor agrees to abide by and be bound by the indemnification provisions of Section 7(c) above. 8. DISPUTE RESOLUTION AND GOVERNING LAW a. Owner and Contractor agree that should a dispute arise as to the terms of the Contract Documents the architect shall serve as the initial decision-maker, unless there is no architect retrained on the project related to the Work. Owner and Contractor further agree as follows: i. If there is no architect retained for the Work, Owner and Contractor agree, prior to the initiation of any civil litigation, to submit to mediation by agreeing on an individual to serve as mediator to mediate the dispute. ii. Should the Owner and Contractor fail to mutually agree on an individual to serve as mediator Owner may select a mediator to mediate the dispute. iii. Any mediator selected under this section shall be an attorney licensed to practice law in the State of North Carolina and shall be generally recognized as having experience in mediating construction disputes. iv. Owner and Contractor agree to equally share in the cost of a mediator selected under this section. Revised December 2010 5 b. The laws of the State of North Carolina shall apply to the interpretation and enforcement of this Agreement. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of, or the performance or nonperformance of, this Agreement or the Contract shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina and it is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. c. Notice of any claim by Owner or Contractor must be initiated by written notice to the other Party within thirty (30) days of the occurrence of the event giving rise to the claim or within thirty (30) days of the discovery of the event or condition giving rise to the claim, whichever is later. i. Should any claim be made, regardless of whether such claim is made by Owner or Contractor, Contractor shall continue to faithfully and diligently perform the Work in such a manner as to meet all scheduled timelines. Any failure to faithfully and diligently perform the Work may be deemed, by the Owner, a breach of the Contract. ii. If a claim is made such claim shall be made to the initial decision maker, if applicable, who may request more supporting data, reject the claim in whole or in part, approve the claim in whole or in part or advise the parties the claim is unable to be resolved. iii. If a claim is made by the Owner the Owner may, but is not obligated to, notify the surety. 9. NON—APPROPRIATION a. Contractor acknowledges that Owner is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. b. In the event that public funds are unavailable and not appropriated for the performance of Owner's obligations under this Agreement, then this Agreement shall automatically expire without penalty to Owner immediately upon written notice to Contractor of the unavailability and non-appropriation of public funds. It is expressly agreed that Owner shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. c. In the event of a change in the Owner's statutory authority, mandate and/or mandated functions, by state and/or federal legislative or regulatory action, which adversely affects Owner's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to Owner upon written notice to Contractor of such limitation or change in Owner's legal authority. 10. NOTICES Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following: Revised December 2010 6 Owner: Contractor: Orange County Warren Hay Mechanical Contractors Attn: Pam Jones 214 Millstone Drive P.O. Box 8181 Hillsborough,NC 27278 Hillsborough,NC 27278 11. LIEN WAIVER a. Contractor acknowledges that Owner is a governmental entity and pursuant to N.C. Gen. Statute 44A-34 Contractor is prohibited from filing a claim of lien on the real property and/or funds of the Owner. b. The Contractor hereby waives, discharges, and releases any and all liens, claims, and rights to liens against the above-mentioned project, and against any and all funds of the Owner appropriated or available for the construction of said project, and any and all warrants drawn upon or issued against any such funds or monies, which the undersigned Contractor may have or may hereafter acquire or possess as a result of the furnishing of labor, materials, and/or equipment, and the performance of Work by the Contractor on or in connection with said project, whether under and pursuant to the above-mentioned contract between the Contractor and the Owner pertaining to said project or otherwise, and which said liens, claims or rights of lien may arise and exist. c. By executing this Agreement Contractor agrees to abide by and be bound by the provisions of this Section. 12. MISCELLANEOUS a. Duties and Obligations imposed by the Contract Documents shall be in addition to any Duties and Obligations imposed by state, federal or local law, rules, regulations and ordinances. b. No act or failure to act by the Owner or Contractor shall constitute a waiver of any right or duty granted them under the Contract Documents, nor shall any act or failure to act constitute any approval except as specifically agreed in writing. c. The Work shall be tested and inspected as required by the Contract Documents and as required by law. Unless prohibited by law the costs of all such tests and inspections related to state and federal codes such as ADA, Administrative, Electrical, Plumbing, Mechanical and Building Codes shall be borne by the Contractor. The costs for material and structural testing shall be conducted by an independent third party at the expense of the Owner. Delays related to any of the aforementioned tests and inspections shall not be grounds for delaying the completion of the work. If any such tests and inspections reveal deficiencies in the Work such that the Work does not comply with terms or requirements of the Contract Documents and/or the requirements of any code or law the Contractor is solely responsible for the cost of bringing such deficiencies into compliance with the terms of the Contract Documents and/or any code or law. d. Should the Architect, if an architect is retained for the project involving the Work, or Owner reject any portion of the Work for failing to comply with the Contract Documents Contractor shall immediately, at Contractor's expense, correct the Work. Any such rejection may be made before or after substantial completion. If applicable, any additional Revised December 2010 7 expense borne by the Architect under this section shall be paid at Contractor's expense. e. The Contractor shall not assign any portion of this Agreement nor subcontract the Work in its entirety without the prior written consent of the Owner. 13. CONSEQUENTIAL AND LIQUIDATED DAMAGES a. Owner and Contractor mutually waive any claim against each other for consequential damages. Consequential Damages include: i. Damages incurred by Owner for loss of use, income, financing, or business. ii. Damages incurred by Contractor for office expenses, including personnel, loss of financing,profit, income, business or damage to reputation. b. Liquidated damages shall be in accord with the Contract Documents. 14. TERMINATION OR SUSPENSION a. The Owner may, without cause, order the Contractor to terminate, suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. In the event of termination by the Owner under this Agreement, the Contractor shall be entitled to receive its reasonable and documented direct costs prior to termination, including the cost of materials purchased for the Work which purchases cannot be canceled or which material cannot reasonably be used by the Contractor on other work, and the cost of closing down the work in a safe and efficient manner. i. If Owner orders a delay, suspension or interruption of the Work, and such order is not due to or as a result of any fault on the part of the Contractor, the Contractor may recover a per diem amount at a rate calculated by a flat rate of$200 per day. ii. If Contractor elects to accept the amount listed in Section 14(a)(i) above, Contractor waives any right to further claims for payment of damages sustained as a result of Owner's order to delay, suspend or interrupt the Work. b. Contractor may terminate the Contract if, at the Owner's written direction, the Work is stopped for thirty (30) consecutive days through no act or fault of the Contractor, their agents or employees, or a subcontractor or their agents or employees or any other person performing work pursuant to the Contract Documents. Contractor may terminate the Contract if a Court or other Public authority having jurisdiction enters a lawful order that requires all work to be stopped and such stoppage lasts for thirty(30) consecutive days. 15. ENTIRE AGREEMENT All of the documents listed, referenced or described in this Agreement, the written Notice-to- Proceed, together with Modifications made or issued in accordance herewith are the Contract Documents, and the work, labor, materials and completed construction required by the Contract Documents and all parts thereof is the Work. The Contract Documents constitute the entire agreement between Owner and Contractor. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. If any provision of the Agreement shall be declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. Revised December 2010 8 y and IN WITNESS WHEREOF, the Parties hereto lithout proof or accoun ng for date first above written in a number of counterparts, ea ch of which shall, w other counterparts,be deemed an original contract. ORANGE COUNTY CONTRACTOR Signature Si at Bernadette Pevissier, Chair Orange County Board of Commissioners L,�,u�• � t,��,ePl�C.• 17 Printed Name and Title Attest: r Donna Baker, Clerk to the Board This instrument has been approved as to technical content. �41 De rt nt Director This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Office of the Finance Director This instrument has been approved as to legal form and sufficiency. Office o the County Attorney Revised December 2010 9 OP ID:CM DATE(MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE 09/08/11 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). CON ACT Carla Moore PRODUCER 919-96811472 NAME: Summers Thompson Lowry,Inc. 919-942-4221 PHONE 919-969-5337 FAX No)-919-942-4221 100 Europa Drive,Suite 571 - No Ext Chapel Hill,NC 27517 E-MAIL carla@stlinsure.com ADDRESS: Colonial Insurance Agency of PRODUCER WARRE-1 CUSTOMER ID N: INSURER(S)AFFORDING COVERAGE NAIC B INSURED Warren Hay Mechanical INSURER A:Netherlands Contractors Inc, INSURER B:Peerles Insurance Company Sheet Metal Duct Suppliers LLC INSURER C: PO Box 818 Hillsborough,NC 27278 INSURER o INSURERE: INSURER F COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES,LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. POLICY E POLICY EXP LTR FF TYPE OF INSURANCE POLICY NUMBER MMI MMIDD LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,00 A X COMMERCIAL GENERAL LIABILITY CBP5133655 12131110 12/31/11 PREMISES Ea occurrence $ 300,00 CLAIMS-MADE X OCCUR MED EXP(Any one person) $ 15,00 PERSONAL&ADV INJURY $ 1,000,00 GENERAL AGGREGATE $ 2,000,00 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,00 POLICY X PRa LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1,000,00 12/31/10 12/31/11 (Ea accident) B X ANY AUTO BA5133651 BODILY INJURY(Per person) $ ALL OWNED AUTOS BODILY INJURY(Per accident) $ SCHEDULED AUTOS PROPERTY DAMAGE $ X HIRED AUTOS (Per accident) X NON-OWNED AUTOS $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ 5,000,00 EXCESS LIAB CLAIMS-MADE AGGREGATE $ 5,000,00 B U 8827718 12/31/10 12/31/11 DEDUCTIBLE $ X RETENTION $ WC STATU- OTH- WORKERS COMPENSATION TORY LIMITS X I ER AND EMPLOYERS'LIABILITY 500,00 A ANY PROPRIETOR/PARTNERIEXECUTIVE Y C 8827218 01/01/11 01/01/12 E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA (Mandatory In NH) E.L.DISEASE-EA EMPLOYE $ 500,00 If yes,describe under E.L.DISEASE-POLICY LIMIT $ 500,00 DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,if more space is required) Cetifcate holder is additional insured with respects to General Liability by written contract.Waiver of subrogation applies to General Liability. CERTIFICATE HOLDER CANCELLATION ORANGE2 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Orange County PO Box 8181 Hillsborough, NC 27278 AUTHORIZED REPRESENTATIVE Pt 54A0VV%fft%4?0%S ©1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25(2009/09) The ACORD name and logo are registered marks of ACORD Lire vTutu Document A312 TM - 2010 Conforms with The American Institute of Architects AIA Document 312 601011299 Performance Bond CONTRACTOR: SURETY: (Name,legal status and address) (Name,legal status and principal place of Warren Hay Mechanical Contractors business) The Ohio Casualty Insurance Company 214 Millstone Drive 9450 Seward Road Hillsborough, NC 27278 Fairfield,OH 45014 OWNER: ( This document has important legal Name,legal status and address) consequences.Consultation with Orange County an attorney is encouraged with Mailing Address for Notices respect to its completion or The Ohio Casualty Insurance Company modification P O Box 8181 Attention:Surety Claims Department Any singular reference to 1001 4th Avenue,Suite 1700 Contractor,Surety,Owner or Hillsborough,NC 27278 Seattle,WA 98154 other party shall be considered CONSTRUCTION CONTRACT plural where applicable Date: 9/19/11 Amount:$ 679,326.00 Description: (Name and location) #30035 Link Geothermal Install; FY 2011-12 - HVAC renovations for Link Government Services Building BOND Date: 9/19/11 (Not earlier than Construction Contract Date) Amount:$679,326.00 Modifications to this Bond: ® None See Section 16 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Warren Hay Mechanical Contractors The Ohio Casualty nsurance Company Sipi Signature: 4 N e Name and itl and Title: Larry F.Warre sident William S.LaNier,Attorney-in-fact (Any additional signatures appear on the last page of this Performance Bond.) (FOR INFORMATIONONLY—Name,address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: COLONIAL INSURANCE AGENCY OF (Architect,Engineer orotherparty) P O Box 490 Hillsborough,NC 27278 1 §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. §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. 2 §7 If the Surety elects to act under Section 5.1,5.2 or 5.31 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 A the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .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 herefrom 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. 3 §16 Modifications to this bond are as follows: (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,) Warren Hay Me hanical Contractors Ohio Casualty Insurance Company R ' afore: Signature: � _----- Name and tle:L rry .Warren,President Name and Title:William S.La ier,Attorney-in-fact Address Address 4 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. CERTIFIED COPY OF POWER OF ATTORNEY THE OHIO CASUALTY INSURANCE COMPANY WEST AMERICAN INSURANCE COMPANY No.43-135 Know All Men by These Presents: That THE OHIO CASUALTY INSURANCE COMPANY, an Ohio Corporation, and WEST AMERICAN INSURANCE COMPANY,an Indiana Corporation,pursuant to the authority granted by Article III,Section 9 of the Code of Regulations and By-Laws of The Ohio Casualty Insurance Company and West American Insurance Company, do hereby nominate, constitute and appoint: Gretchen G.LaNier or William Scott LaNier of Hillsborough,North Carolina its true and lawful agent(s)and attorney(s)-in-fact, to make; execute; seal and deliver for and on its behalf as surety, and as its act and deed any and all BONDS, UNDERTAKINGS, and RECOGNIZANCES,not exceeding in any single instance FOUR MILLION ($4,000,000.00) DOLLARS, excluding,however, any bond(s) or undertaking(s)guaranteeing the payment of notes and interest thereon And the execution of such bonds or undertakings in pursuance of these presents,shall be as binding upon said Companies,as fully and amply,to all intents and purposes,as if they had been duly executed and acknowledged by the regularly elected officers of the Companies at their administrative offices in Fairfield,Ohio,in their own proper persons. The authority granted hereunder supersedes any previous authority heretofore granted the above named attomey(s)-in-fact. In WITNESS WHEREOF,the undersigned officer of the said The Ohio Casualty Insurance Company and West American Insurance Company has hereunto subscribed his name and affixed the Corporate Seal of each Company this 15th day of January,2010. m J.Timothy D'Errico,Assistant Secretary Q STATE OF OHIO, N O COUNTY OF BUTLER O U) On this 15th day of January,2010 before the subscriber,a Notary Public of the State of Ohio,in and for the County of Butler,duly commissioned and qualified, came J.Timothy D'Errico,Assistant Secretary of THE OHIO CASUALTY INSURANCE COMPANY and WEST AMERICAN c ca INSURANCE COMPANY,to me personally known to be the individual and officer described in,and who executed the preceding instrument,and he _ cc acknowledged the execution of the same,and being by me duly sworn deposes and says that he is the officer of the Companies aforesaid,and that the O a � d tm seals affixed to the preceding instrument are the Corporate Seals of said Companies,and the said Corporate Seals and his signature as officer were 0I__ V d duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. W O > IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed my Official Seal at the City of Hamilton,State of Ohio,the day and year first C Q. I- above written. Q O O R5 ,r,� ,✓' th O C L Notary Public in and for County of Butler,State of Ohio My Commission expires August 17,2013. O d cc 60 C This power of attorney is granted under and by authority of Article III, Section 9 of the Code of Regulations and By-Laws of The Ohio Casualty m O L Insurance Company and West American Insurance Company,extracts from which read: O pr(n Article III;Section 9. Appointment of Attomeys-in-Fact. The Chairman of the Board,the President,any Vice-President,the Secretary or any O 0 d Assistant Secretary of the corporation shall be and is hereby vested with full power and authority to appoint attorneys in-fact for the purpose of V_w signing the name of the corporation as surety to,and to execute,attach the seal of the corporation to,acknowledge and deliver any and all bonds, «d O recognizances,stipulations,undertakings or other`instruments of suretyship and policies of insurance to be given in favor of any individual, firm, E6 corporation,partnership,limited liability company or other entity,or the official representative thereof or to any county or state,or any official board ) O R or boards of any county or state,or the United States of America or any agency thereof,or to any other political subdivision thereof d r a v This instrument is signed and sealed as authorized by the following resolution adopted by the Boards of Directors of the Companies on October 21, M L 2004:RESOLVED,That the signature of an officer of the Com an authorized under Article III,Section 9 of its Code-of Regulations and By-laws £tno Z g Y Company =a0 and the Company seal may be affixed by facsimile to any power of attorney or copy thereof issued on behalf of the Company to make,execute, seal O Cl) and deliver for and on its behalf as surety any and all bonds, undertakings or other written obligations in the nature hereof; to prescribe their 0 r respective duties and the respective limits of their authority;and to revoke any such appointment. Such signatures and seal are hereby adopted by the r Company as original signatures and seal and shall,with respect to any bond,undertaking or other written obligations in the nature thereof to which it is attached,be valid and binding upon the Company with the same force and effect as though manually affixed. CERTIFICATE I,the undersigned Assistant Secretary of The Ohio Casualty Insurance Company and West American Insurance Company,do hereby certify that the foregoing power of attorney,the referenced By-Laws of the Companies and the above resolution of their Boards of Directors are true and correct copies and are in full force and effect on this date. e,, — IN WITNESS WHEREOF,I have hereunto set my hand and the seals of the Companies this 9 day of ��-t7�^� , a�l� E F Assistant Secretary qO gal. Document A312TM - 2010 Conforms with The American Institute of Architects AIA Document 312 Payment Bond 601011299 CONTRACTOR: SURETY: (Name,legal status and address) (Name,legal status and principal place of business) Warren Hay Mechanical Contractors The Ohio Casualty Insurance Company 214 Millstone Drive 9450 Seward Road Hillsborough,NC 27278 Fairfield,OH 45014 This document has important legal OWNER' consequences.Consultation with (Name,legal status and address) Mailing Address for Notices an attorney is encouraged with The Ohio Casualty Insurance Company respect to its completion or Orange County modification. Attention:Surety Claims Department Any singular reference to P O Box 8181 1001 4th Avenue,Suite 1700 Contractor,Surety,Owner or Seattle,WA 98154 other party shall be considered Hillsborough,NC 27278 plural where applicable. CONSTRUCTION CONTRACT Date: 9/19111 Amount:$ 679,326.00 Description: (Name and location) #30035 Link Geothermal Install; FY 2011-12 - HVAC renovations for Link Government Services Building BOND Date: 9/19/11 (Not earlier than Construction Contract Date) Amount:$ 679,326.00 Modifications to this Bond: ® None r-j See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Warren Hay Mechanical Contractors The Ohio Casualty Insurance Company Sign �-_ Signature: _ N e Name an Title: and Title: Lar .Warten, President William S.LaNier,Attorney-in-fact (Any additional signatures appear on the last page of this Payment Bond.) (FOR INFORMATIONONLY—Name,address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: COLONIAL INSURANCE AGENCY OF (Architect,Engineer orotherparty:) P O Box 490 Hillsborough,NC 27278 5 §1 The Contractor and 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, subject to the following terms. §2 If the Contractor promptly makes payment of all sums due to Claimants,and defends,indemnifies and holds harmless the Owner from claims, demands,liens or suits by any person or entity seeking payment for labor,materials or equipment furnished for use in the performance of the Construction Contract,then the Surety and the Contractor shall have no obligation under this Bond. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety(at the address described in Section 13)of claims,demands,liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor,materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims,demands,liens or suits to the Contractor and the Surety. §4 When the Owner has satisfied the conditions in Section 3,the Surety shall promptly and at the Surety's expense defend,indemnify and hold harmless the Owner against a duly tendered claim,demand,lien or suit. §5 The Surety's obligations to a Claimant under this Bond shall arise after the following: §5.1 Claimants,who do not have a direct contract with the Contractor, .1 have furnished a written notice of non-payment to the Contractor,stating with substantial accuracy the amount claimed and the name of the party to whom the materials were,or equipment was,furnished or supplied or for whom the labor was done or performed,within ninety(90)days after having last performed labor or last furnished materials or equipment included in the Claim; and .2 have sent a Claim to the Surety(at the address described in Section 13). §5.2 Claimants,who are employed by or have a direct contract with the Contractor,have sent a Claim to the Surety(at the address described in Section 13). §6 If a notice of non-payment required by Section 5.1.1 is given by the Owner to the Contractor,that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.1. §7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2,whichever is applicable,the Surety shall promptly and at the Surety's expense take the following actions: §7.1 Send an answer to the Claimant,with a copy to the Owner,within sixty(60)days after receipt of the Claim,stating the amounts that are undisputed and the basis for challenging any amounts that are disputed;and §7.2 Pay or arrange for payment of any undisputed amounts. §7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim,except as to undisputed amounts for which the Surety and Claimant have reached agreement. If,however,the Surety fails to discharge its obligations under Section 7.1 or Section 7.2,the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. §8 The Surety's total obligation shall not exceed the amount of this Bond,plus the amount of reasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. §9 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 Surety under this Bond,subject to the Owner's priority to use the funds for the completion of the work. 6 10 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 the payment of any costs or expenses of any Claimant under this Bond,and shall have under this Bond no obligation to make payments to,or give notice on behalf of,Claimants or otherwise have any obligations to Claimants under this Bond. § 11 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. § 12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date(1)on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2,or(2)on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone 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. § 13 Notice and Claims 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.Actual receipt of notice or Claims,however accomplished,shall be sufficient compliance as of the date received. 3 14 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.When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond,the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. 16 Definitions § 16.1 Claim. A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done,or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor,materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor,materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor,materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant;and .8 the total amount due and unpaid to the Claimant for labor,materials or equipment furnished as of the date of the Claim. 16.2 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 Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanics's lien or similar statute against the real property upon which the Project is located. 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,architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors,and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor,materials or equipment were furnished. § 16.3 Construction Contract. The agreement between the Owner and Contractor identified on the cover page,including all Contract Documents and all changes made to the agreement and the Contract Documents. 7 §16.4 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. §16.5 Contract Documents.All the documents that comprise the agreement between the Owner and Contractor. §17 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. §18 Modifications to this bond are as follows: (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) Warren Hay Mechanical C ntractors Ohio Cas4"Y "lI nce Company r Si afore: - - — Signature _ N e and 'le: ar .Warren, President Name and m ie ,Attorney-in-act A dress Address 8 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. CERTIFIED COPY OF POWER OF ATTORNEY THE OHIO CASUALTY INSURANCE COMPANY WEST AMERICAN INSURANCE COMPANY No.43-135 Know All Men by These Presents: That THE OHIO CASUALTY INSURANCE COMPANY, an Ohio Corporation, and WEST AMERICAN INSURANCE COMPANY,an Indiana Corporation,pursuant to the authority granted by Article III,Section 9 of the Code of Regulations and By-Laws of The Ohio Casualty Insurance Company and West American Insurance Company,do hereby nominate, constitute and appoint: Gretchen G.LaNier or William Scott LaNier of Hillsborough,North Carolina its true and lawful agent(s)and attorney(s)-in-fact, to make, execute, seal and deliver for and on its behalf as surety, and as its act and deed any and all BONDS, UNDERTAKINGS, and RECOGNIZANCES,not exceeding in any single instance FOUR MILLION ($4,000,000.00) DOLLARS, excluding, however, any bond(s) or undertaking(s)guaranteeing the payment of notes and interest thereon And the execution of such bonds or undertakings in pursuance of these presents,shall be as binding upon said Companies,as fully and amply,to all intents and purposes,as if they had been duly executed and acknowledged by the regularly elected officers of the Companies at their administrative offices in Fairfield,Ohio,in their own proper persons. The authority granted hereunder supersedes any previous authority heretofore granted the above named attorney(s)-in-fact. In WITNESS WHEREOF,the undersigned officer of the said The Ohio Casualty Insurance Company and West American Insurance Company has hereunto subscribed his name and affixed the Corporate Seal of each Company this 15th day of January,2010. _N N J.Timothy D'Errico,Assistant Secretary d M STATE OF OHIO, N COUNTY OF BUTLER '8 N C On this 15th day of January,2010 before the subscriber,a Notary Public of the State of Ohio in and for the County of Butler,duly commissioned A C and qualified, came J.Timothy D'Errico,Assistant Secretary of THE OHIO CASUALTY INSURANCE COMPANY and WEST AMERICAN cc INSURANCE COMPANY,to me personally known to be the individual and officer described in,and who executed the preceding instrument and he = CC acknowledged the execution of the same,and being by me duly sworn deposes and says that he is the officer of the Companies aforesaid,and that the — p L seals affixed to the preceding instrument are the Corporate Seals of said Companies,and the said Corporate Seals and his signature as officer were 0I__ 3 duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. d W IN TESTIMONY WHEREOF,Lhaue hereunto set my hand and affixed my Official Seal at the City of Hamilton,State of Ohio,the day and year first Q cc d > above written. `+ Q r°i d) (it —-p ' cCc y Notary Public in and for County of Butler,State of Ohio 3 M 01- _ y My Commission expires August 17,2013. p E do a « This power of attomey is granted under and by authority of Article III Section9 of the Code of Regulations and By-Laws of The Ohio Casualty m C _� to Insurance Company and West American Insurance Company,extracts from which read: pt w Article III,Section 9. Appointment of Attorneys-in-Fact. The Chairman of the Board,the President any Vice-President,the Secretary or any C L Assistant Secretary of the corporation shall be and is hereby vested with full power and authority to appoint attorneys-in-fact for the purpose of L+: signing the name of the corporation as surety to,and to execute,attach the seal of the corporation to, acknowledge and deliver any and all bonds, 3 G C recognizances,stipulations,undertakings or other instruments of suretyship and policies of insurance to be given in favor of any individual, firm, y corporation,partnership,limited liability company or other entity,or the official representative thereof or to any county or state,or any official board >D �0 c or boards of any county or state,or the United States of America or any agency thereof,or to any other political subdivision thereof .a v This instrument is signed and sealed as authorized by the following resolution adopted by the Boards of Directors of the Companies on October 21, M W _ 2004: L RESOLVED,That the signature of any officer of the Company authorized under Article III,Section 9 of its Code of Regulations and By-laws W z v and the Company seal may be affixed by facsimile to any power of attorneY or copy thereof issued on behalf of he Company to make;execute, seal and deliver for and on its behalf as surety any and all bonds, undertakings of other written obligations in the nature thereof, to prescribe their v r respective duties and the respective limits of their authority;and to revoke any such appointment. Such signatures and seal are hereby adopted by the o T Company as original signatures and seal and shall,with respect to any bond,undertaking or other written obligations in the nature thereof to which it is attached,be valid and binding upon the Company with the same force and effect as though manually affixed. CERTIFICATE 1,the undersigned Assistant Secretary of The Ohio Casualty Insurance Company and West American Insurance Company,do hereby certify that the foregoing power of attorney,the referenced By-Laws of the Companies and the above resolution of their Boards of Directors are true and correct copies and are in full force and effect on this date. IN WITNESS WHEREOF,I have hereunto set my hand and the seals of the Companies this day of � O Assistant Secretary