HomeMy WebLinkAbout2013-534 AMS - Warren Hay Mechanical for Change Order @ 1 Community Geo-thermal HVAC $17,250 [Departmental Use Only]
TITLE GEO-THERMAL SYSTEM, PH 11
FY 2013-14
NORTH CAROLINA
CONSTRUCTION AGREEMENT OVER$1,000,000.00
ORANGE COUNTY
THIS CONSTRUCTION AGREEMENT(hereinafter called "Agreement"),made as of the 19th day of
June, 2013, by and between Warren-Hay Mechanical, (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. DEFINITIONS
a. Change Order. A written order signed by the Owner authorizing an addition, deletion, or
revision in the Work and/or an adjustment in the Contract Price and/or an adjustment in the
Date of Substantial Completion.
b. Contract Price. Total monies payable to the Contractor pursuant to the Contract Documents.
The Contract Price may only be amended by Change Order.
c. Contract Documents. All of the documents that make up the agreement between the Owner
and Contractor as set out in Section 2.
d. Contract Time. The number of calendar days stated in, or computed from, the Contract
Documents for the completion of the Work, or any portion thereof. Time of completion as
specified therein is of the essence. The time used and referred to on the Project will be that
time which is observed in Hillsborough,North Carolina,being Eastern Daylight Savings Time,
Eastern Standard Time, or other as designated by the Designer or Owner if no Designer is
retained for the Project.
e. Designer. The person or firm designated as the Designer in the Contract Documents, or their
authorized representatives. The Designer, as referred to herein, shall mean architect, landscape
architect, and/or engineer. They will be referred to hereinafter as if each were of the singular
number,masculine gender.
f. Drawings. Designer approved graphic and pictorial portions of the Contract Documents
showing the design, location, and dimensions of the Work and generally including plans,
elevations, sections, details,schedules,and diagrams.
g. Field Order. A written order issued by the Designer which clarifies or interprets the Contract
Documents or orders minor changes in the Work in accordance with the Contract Documents.
h. Final Completion. The point at which the Contractor has, as determined by the Designer,
completed the Work, including punchlist work and the submittal of the Affidavit in section
8(d), with the exception of guaranty and warranty obligations, and becomes entitled, upon the
recommendation of the Designer and determination by the Owner,to final payment.
Revised November 2011
i. Minor Change. A change or alteration in the Work that does not involve a change in the
Contract Price or Contract Time and which is not inconsistent with the overall intent of the
Contract Documents. A minor change may be initiated by a Field Order.
j. Notice. Notice and/or Written Notice shall mean and include all written notices, demands,
instructions and claims approvals and disapprovals furnished by the Owner or Designer to
obtain compliance with the requirements of the Contract Documents, as well as all written
notices, demands, instructions and claims furnished by the Contractor as required by the
Contract Documents. Where notice is required under the terms of the Contract Documents,
written notice shall always be required, and oral or "constructive" notice shall be insufficient
and ineffective as notice. Email or other electronic delivery shall be insufficient and
ineffective as notice. Written notice shall be deemed duly served on the date that it is
delivered in person to the individual or to a member of the firm,to an officer of the corporation
for whom it is intended, to an authorized representative of such individual,firm or corporation,
or on the date that it is mailed by registered or certified mail, return receipt requested,
addressed to the last business address of such individual, firm, or corporation known to the
person giving the notice.
k. Project. The total construction of which the Work performed under the Contract Documents
may be the whole or a part.
1. Specifications. That portion of the Contract Documents consisting generally of the written
requirements for materials, equipment, construction systems, standards, and workmanship for
the Work and performance of related services.
m. Subcontractor. A person, firm, or corporation who has entered into a direct contract with the
Contractor to perform any of the Work at the Project. A Subcontractor may have direct or
indirect contracts with persons, firms, or corporations, known as a sub-subcontractor, to
perform any of the Work on the Project.
n. Submittal. Shop drawings, product data, samples, and other documents required by the
Contract Documents to be submitted by the Contractor to the Owner and/or the Designer.
o. Substantial Completion. The point at which the Work, as determined by the Designer, is
sufficiently complete in accordance with the Contract Documents that it can be utilized by the
Owner for its intended use, and all necessary permits and permissions for beneficial occupancy
and utilization having been obtained. All operations and maintenance manuals, Owner
Training, Warranties, and as-built drawings must be submitted within thirty (30) days of
substantial completion.
p. Work. The construction and services required by the Contract Documents, including all labor,
materials, equipment, and services provided or to be provided by the Contractor to fulfill the
Contractor's obligations.
2. CONTRACT DOCUMENTS; PRIORITY
The Contract Documents consist of this Agreement, the Request for Proposals, designer approved
communications and/or field orders, the Proposal, Construction Documents and 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:
Revised November 2011 2
a. This Agreement.
b. Designer approved and stamped construction documents and drawings and written
specifications.
c. Designer approved communications and/or field orders.
d. Request for Proposals and addenda thereto.
e. Proposal.
3. SCOPE OF WORK
The Contractor shall furnish and deliver all of the materials, and perform, and be fully responsible
for 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(Sheet#s: C 1.0, M1.0 through
M7.3, E1.0 through E4.0 (19 sheets total) dated April 19,2013)
b. Written specifications prepared by the Designer.
c. Specifications for Community Geothermal System, Phase II, Orange County, Hillsborough,
North Carolina and three (3) addenda (#1 dated May 7, 2013, #2 dated May 9, 2013, and #3
dated May 20, 2013) proposal dated April 19, 2013 which fully describes the work to be
performed, such work(hereinafter called the"Work").
d. Related documents listed under Section 2 above.
4. 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 June 30,2014.
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. Owner may deploy its own employees or engage other contractors to perform Work as part of
the Project whose work will be performed simultaneously and sequentially with the
performance of the Work by the Contractor. The Contractor shall coordinate construction
activities with the Owner or other contractors,particularly with respect to access to work areas,
storage of materials, and use of elevators and other common facilities. The Contractor shall
cooperate in good faith with the Owner and such other contractors with respect to these
matters.
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f. Should the Designer or Owner determine that the Contractor is behind schedule and that the
Contractor is behind schedule due to any act or failure to act on the part of the Contractor (or
one or more subcontractors), the 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.
g. Time extensions will not be granted for rain, wind, snow or other natural phenomena of normal
intensity for the locality where work is performed. For purpose of determining extent of delay
attributable to unusual weather phenomena, a determination shall be made by comparing the
weather for the contract period involved with the average of the preceding five (5) year
climatic range during the same time interval based on the National Oceanic and Atmospheric
Administration National Weather Service statistics for the locality where work is performed
and on daily weather logs kept on the job site by the contractor reflecting the effect of the
weather on progress of the work and initialed by the Designer or his authorized representative.
Time extensions for weather delays do not entitle the Contractor to "extended overhead"
recovery.
5. STANDARD OF CARE AND DUTIES OF CONTRACTOR
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 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.
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g. The Contractor shall supervise and direct the Work efficiently and with the Contractor's best
skill and attention. Except as specifically set forth in the Contract Documents the Contractor
shall be solely responsible for the means, methods, techniques, sequences and procedures of
construction, and for safety precautions and programs in connection with the Work. The
Contractor shall be responsible to see that the finished Work complies accurately with the
Contract Documents.
h. The Contractor shall appoint a competent Project Manager with general authority to manage
the Project for the Contractor. The Contractor shall also keep on the Project at all times during
the Work of the Contractor a competent Resident Superintendent and necessary assistants who
shall not be replaced without prior written approval by the Designer or by the Owner if a
Designer is not retained for the Project.
i. If, in the opinion of the Designer, any Subcontractor on the Project is incompetent or otherwise
unsatisfactory, such Subcontractor shall be replaced by the Contractor with no increase in the
Contract Price if and when directed by the Designer.
j. The Contractor shall attend all progress conferences and all other meetings or conferences.
The Contractor shall be represented at these progress conferences by a representative having
the authority of the Project Manager and by such other representatives as the Designer may
direct.
k. Costs and expenses of providing samples for and assistance in any testing shall be borne by the
Contractor. Any Work in which untested materials are used without approval or written
permission of the Owner and/or Designer shall be removed and replaced at Contractor's
expense.
6. 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 one million, five hundred and seventy-nine thousand, one hundred and ninety three
Dollars ($1,579,193). Not later than the fifth(5th) day of each calendar month the Contractor
shall submit to the Owner's Representative,generally the Designer if a Designer 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 Asset Management
Services, 131 West Margaret Lane, Hillsborough, NC 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%) (the"Retainage").
(1) Upon Owner's Representative's certification that ninety percent (90%) of the
Work has been satisfactorily completed Retainage may be discontinued.
Retainage may be discontinued, at Owner's Discretion, so long as work
continues to be completed satisfactorily and on schedule.
(iii) Final payment shall not be due to the Contractor until thirty (30) days after Final
Completion of the Work, including punch list work, has been satisfactorily completed
Revised November 2011 5
and an appropriate Affidavit, Indemnification, and Release as required in Section 8(d)
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.
(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.
d. Should the Owner receive notice that the Contractor has failed to pay a Subcontractor for the
Work performed related to a Request for Payment, Owner shall have the authority to withhold
payment of the disputed amount until parties resolve their dispute. Failure to pay the
Contractor pursuant to this section of the Agreement shall not be deemed to be a breach of the
Agreement.
7. INSURANCE AND BONDS
a. Minimum requirements — The Contractor shall obtain, at its sole expense, all insurance
required under this Agreement and the Contractor shall include all Subcontractors as Insureds
under its policies, or shall furnish separate certificates, policies, and endorsements for each
Subcontractor the Contractor intends to use. If a Subcontractor does not take out insurance in
its own name and the Contractor wishes to provide insurance protection for such Subcontractor
and such Subcontractor's employees, the Contractor shall either (a) procure appropriate
policies in the name of the Subcontractor, or (b) cause a rider or riders to be attached to the
Contractor's policies which shall identify the Subcontractor thereby covered; provided
however, in the case of the latter option, such a rider need not be attached to the Contractor's
worker's compensation policy if such policy by its terms is sufficiently broad to cover the
employees of all Subcontractors performing Work under the Contract Documents. 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.
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(ii) Comprehensive General Liability and Property Damage Insurance ($1,000,000 Each
Occurrence; $2,000,000 Aggregate).
(iii) Contractual Liability (Bodily Injury and Property Damage $1,000,000 Each
Occurrence;Property Damage$2,000,000 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).
(vi) Property Insurance in an amount appropriate to protect the Project from perils of
physical loss. The insurance shall provide for the cost of replacement for the Work at
the time of any loss. The insurance shall provide for the cost of replacement for the
Work at the time of any loss. The insurance shall include as named insureds the
Owner, the Contractor and its Subcontractors and shall insure against the loss from the
perils of fire and all risk coverage for physical loss or damage due to theft, vandalism,
collapse,malicious mischief,transit, flood, earthquake,testing,damages resulting from
defective design,negligent workmanship or defective material.
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 and Payment 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. The bonds shall be in the full amount of the
Contract Price and subject to changes in the Contract Price. The bonds shall be dated the
same date as this Agreement and must be accompanied by a current copy of the power of
attorney for the attorney-in-fact executing such bonds on behalf of a surety company licensed
to do business in the State of North Carolina. 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.
S. INDEMNITY
a. The Contractor shall indemnify and hold harmless 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 (i) is attributable to bodily injury, sickness, disease
or death or injury, or destruction of property,including the loss of use resulting therefrom; and
(ii) 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.
Revised November 2011 7
• f
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 7 above. In
the event any such lien is filed against Owner's property Contractor shall,through such bonds
and insurance or at Contractors expense,defend Owner against all such claims of lien.
c. The Contractor acknowledges that during construction on the Project hazardous or toxic waste,
material, chemicals, compounds or substances, or other environmental hazards, contamination
or pollution, (referred to hereinafter as"environmental hazards") may be present at the Project
site that were not created, generated, or released at the Project site by the Contractor or its
Subcontractors, agents or employees, acting alone or in concert with others. Unless the
remediation, abatement or handling of such environmental hazards is part of the scope of the
Work under this Agreement, then upon the discovery of such environmental hazards, the
Contractor shall immediately, and in no event more than three (3) days after such discovery,
give notice to the Owner and Designer of the environmental hazards before they are disturbed.
The Owner and Designer shall thereupon promptly investigate the environmental hazards, and
make such changes in the Drawings and/or Specifications as they may find necessary to abate,
remediate, isolate or handle the environmental hazards. Any increase or decrease in the
Contract Price or the Contract Time resulting from such changes shall be adjusted in the
manner provided herein for adjustments as to extra and/or additional Work for any
environmental hazards existing at, on or in the Project site prior to the date that Work
commences under this Agreement unless the Contractor or its Subcontractors, agents or
employees, acting alone or in concert with others, by their own negligence or misconduct,
release or expose the Owner or third parties to the environmental hazards.
d. Upon completion of the Work the Contractor shall execute an affidavit, indemnification, and
release 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, liens, 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 claims, liabilities, liens, losses,
damages,causes of action,or expenses. Such affidavit,indemnification,and release shall be in
a form and substance acceptable to Owner. By executing this Agreement Contractor
acknowledges the receipt of adequate consideration in return for said release.
e. By executing this Agreement Contractor agrees to abide by and be bound by the
indemnification provisions herein and of Section 8(d) specifically.
£ The provisions of this Section 8 shall survive the termination or cancellation or completion of
this Agreement.
g. The Contractor shall cause each Subcontractor to indemnify and hold harmless the Owner and
Designer from and against any and all claims, demands, suits, damages, including
consequential damages and damages resulting from personal injury or property damage, costs,
and expenses and fees that are asserted against the Owner and Designer and that arise out of or
result from negligent acts or omissions of the Subcontractors or Contractor or the breach of this
Agreement by the Contractor, its employees, agents and representatives in performing the
Work.
9. RECORD DOCUMENTS AND SUBMITTALS
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a. The Designer shall furnish the Contractor with the approved number of copies of Drawings
and Specifications. The Contractor may obtain additional copies at the cost of reproduction and
handling.
b. The Contractor shall submit to the Designer all Submittals required by the Contract
Documents. The Contractor shall submit four(4)reproducible prints of all shop drawings plus
the number of copies sufficient for its requirements. The Contractor shall submit samples in
quantities required by the Contract Documents. The Contractor shall submit product data in
five (5) copies, plus the number of copies sufficient for the Contractor's requirements. All
shop drawings shall be reviewed by the Contractor and shall bear the Contractor's stamp of
approval before being forwarded to the Designer. Submittals shall be submitted in such time
as to cause no delay to the Work or any part thereof. The Designer shall review and process
the Submittal with reasonable promptness, noting desired corrections, if any. The Designer
shall retain the number of copies of the Submittal deemed required by the Designer and shall
return the remainder of the reviewed Submittals to the Contractor.
c. The Contractor acknowledges that the processing of shop drawings and other Submittals is
directly impacted by the clarity, completeness, and accuracy of said documents and that it is
the Contractor's responsibility to review and coordinate each Submittal with all other related or
affected Work and approve each submittal before submitting same to the Designer for
approval..
d. Review of shop drawings and Submittals by the Designer shall not be construed as relieving
the Contractor from responsibility for compliance with the terms or designs of the Contract
Documents nor from responsibility for errors of any sort in the Submittal.
10. DISPUTE RESOLUTION AND GOVERNING LAW
a. Owner and Contractor agree that should a dispute arise as to the terms of the Contract
Documents the Designer shall serve as the initial decision-maker, unless there is no Designer
retrained on the project related to the Work. Owner and Contractor further agree as follows:
(i) If there is no Designer 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.
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
Revised November 2011 9
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.
11. 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.
12. NOTICES
Any notice required by this Agreement shall be in writing and delivered by certified or registered mail,
return receipt requested to the following:
Owner: Contractor:
Orange County Warren-Hay Mechancial
Attn: Wayne Fenton Ron Lapann
P.O.Box 8181 P.O. Box 818
Hillsborough,NC 27278 Hillsborough,NC 27278
13. DESIGNER
a. The Designer is charged with responsibility for interpretation of the Contract Documents. The
Designer's decisions related to aesthetic matters shall be final.
b. All Work completed pursuant to the Contract Documents shall be subject to review by the
Designer. Any Work completed without review or prior authorization by the Designer shall be
subject to full replacement at Contractor's expense.
c. The Designer shall be Owner's agent during the construction period. The duties,
responsibilities and authority of the Designer as the Owner's representative during construction
Revised November 2011 10
are as set forth in the Contract Documents.
14. OWNER
a. The Owner shall issue communications and notices to the Contractor through the Designer and
through the Owner's Representative as contemplated by the Contract Documents.
b. The Owner shall have the right to take possession of and use any portion of the Work
notwithstanding the fact that the time for completion of such portion of the Work may not have
expired, but such taking possession and use shall not be deemed an acceptance of any Work
not completed in accordance with the Contract Documents.
c. A waiver on the part of the Owner of any breach of any part of the Agreement by the
Contractor shall not be held to be a waiver of any other or subsequent breach.
d. Owner shall conduct all laboratory and field tests to determine compliance of construction with
the Contract Documents except those laboratory and field tests required elsewhere in the
Contract Documents to be paid by the Contractor.
e. Owner shall contract separately with the Designer to provide architectural and engineering
design for the Project.
15. 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 Designer, if a Designer 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 expense borne by the
Designer 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.
16. CONSEQUENTIAL AND LIQUIDATED DAMAGES
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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, damage to reputation, or any other non-direct
damages.
b. Liquidated damages shall be in accord with the Request for Proposal and Addenda thereto.
17. 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$200.00 per day.
(ii) If Contractor elects to accept the amount listed in the General Conditions provision of
the Construction Documents 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. Owner may terminate this Agreement without penalty to Owner upon ten (10) working days
written notice should the Contractor fail substantially to perform in accordance with the terms
hereof through no fault of the Owner or if the Project in whole or substantial part is stopped for
a period of one hundred twenty (120) consecutive days under an order of any court or other
public authority having jurisdiction or as a result of an act of government.
c. Owner may terminate this Agreement without penalty to Owner if the Contractor fails to
complete the Work within the Contract Time.
d. Contractor may terminate this Agreement 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.
e. Neither Party to this Agreement may terminate the Agreement without first giving the other
Party ten (I0) business days notice of the intent to terminate the Agreement measured from
actual receipt of notice. If the grounds for termination stated within the written notice are
removed or cured within ten (10) business days after receipt of notice,the Agreement may not
be terminated for default based on the grounds stated in the notice.
Revised November 2011 12
18. 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.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and date
first above written in a number of counterparts, each of which shall, without proof or accounting for other
counterparts,be deemed an original contract.
ORANGE COUNTY CONTRACTOR
Signature lgna re
LkeRV
Printed Name and Title
Attest:
k Ltjai��
Donna Baker,Cler to the Board
This instrument has been approved as to technical content.
Je„ff o ps n, Department 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 bQotrapproved as to legal form and sufficiency.
Office of
Te
ounty o
Revised November 2011 13
RK40
REECE, NOLA D& McELRATH, INC.
400 NoM Naywod S t o a P.Q.fox M
waynas e,NOM caroft 28788-06Ad'J
WOraMb 8284M4881.too Fne 822449-0488
Fox 828458-f +EAM
December 12,2013
''Wayne Fenton
Orange County Asset Management Services
131 Wed Margate Lane,Suite 301
Hillsborough,NC 27278
RE; Community Geothermal S)w=Phase Il
{age County
Hillsborough,NC
Change dear fit
Dear Wayne,
We have reviewed Change Carder#1 as submitted by Warren Hay medwinical Contractors,Inc.and find it to be
in order. This diange order addresses an unknown subsurface condition under Margaret Lane which caused the
directional boring sub-contractor to have to bring in much heavier equipment to bare through the significant rock
which has been encountered. 'This condition could not have reasonably been identified prior to construction.We
verified the fairness of the proposal by contacting PSNC:Energy which contracts out a significt amount of
ssirr lar directional boring. Their normal roc boring numbers verified this pricing as reasonable
Should you have any questions,please let me know.
Very truly yours,
REECE,NOLAND,&McELRATH,INC',.
Stcphen C.Kaufman,P.E.
RKGIM
R E E, P1t31 AND & McELRATH, INC.
4W NortH Haywood SUvat+P.0,Box 590
WaynesviDs,NOM carotlna 28
Waynesvyle 8284 - 1 s Tao Fms SCI-849.04
Fax 82$458.62M.EffmV
DATE: December 12,2013
PROJECT: Coaanmunity Geodmrrnal System Phase II
Orange County
Hillabor+ough,NC
CONTRACT FOR: Mechanical Construction
CONTRACT DATE: June 19,2013
TO: Warren-Ray Mechanical Contractors,Inc.
PO Box 818
Hillsborough,NC 27278
You are directed to make the following changes in this Contract:
• hwi de 2301 tear feet of directional boring through rock encountered in than more under Margaret Lanz at the rate of$754mar
foot,for a total change order ADD o£$17,250.
The or al Contract Sum was $1,579,193
Net change by prevlom auk change orders $0
The Contract Sum pnor to this Change Order was $1,579,193
The Contract Sure will be INCREASED by this Change Order in the amount of $17,2 {}
The new Contract Sum including this Change Order will be $1,596,443
The Contract Tme will be unchanged by this chauge order.
ACC''EP'TF.D BY:
CONTRACTOR.Warren-Hay Con ors,
ate: 2
O1N'NMU orange Co C
By:
Date:
DESIGNER: REECE,NOLAND&M LRATH,INC.
.,..,
Date: ► �"a�
INARRE-1 QP,)Q:CC
A40 GERTIFICA;TE OF LIABILITY INSURANCE
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ttla tAgR�s:altQ Fo ditlaeT¢ pf,t I►.;pottlrr, certl rr gpycles:may rsajTtav:llr aruyot #,: n s!ate�n�,t an t is celtn�Cata,does n Go_.f. s to,0w
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sum, er$ Th9lnOson Lo v' Inc. Fax:01'9-942-4221 PHOW,o a :919^96 -0300 No>819 {42.4221
900 Europa: ve auks 371
Ct,t t HH1.
L FI;'SUnNi{ert #OORMS)AFFOMN6 C.OWitA66 tiNC i'
:INSURER-A:seteative Ins.CO.of Amt#Ylca 121572
INSUra n V.0 +~ri-Hay Mecha.nicai bufekkil:
Do motors, Inc.
misuRERC:
PaBox 818'
H11.104orough,NC 27270 INSUAR(b:
tNstilecnt:
IN6U r
COVERAGES CERTIFICATE NUMBER.- REVISION NUMBER:
THIS 18 TO CERTIFY THAT THE.POLICIES OF INSURANCE,LISTED BELOW HAVE BEEN ISSUED TO-THE INSURE4 NAMED ABOVE FOR THE POLICY PERIOD
i.NDICATED 'WTVVITH$TANDINO ANY REQUIREMENT, TERM OR CONDITION'OF AW CONTRACT OR OTHER 00CUMENT WITH.RESPECT TQ WHICH'THIS
CERTIFICATE MAY RE;.ISSUEp'OR MAY P RtTAIN, THE INSURMCE ��KKF�FORD60.;,RY ThE.pOLI¢►ES DESCgIBED,HEREIN IS SLBJHDT TO ALL THE TERMSr
PJCGLUSJONS ANtl C.601TIONSV SUCH POLICIES:L)MIT5$H'6WN MAYHAVE BEEN ALI'WdWYPAID CLAIMS.
TYR'EOF.waUR/WCP 6UC*:NWk4 R L LIMITS
GENERAL LU MIJITY �Api oCGII',ENCE. t 1.1,0WA0:.
A X COAV�EI?GIi!LCfnERAL.LIA81M X $, '2658359 7213912013 .121 1lRa1A 't?RE+itISE$ EBobturenL� i
cLAWS.MnDE OCCUR WD EXP tAnr7.ane*.6 i s
PERSONAL aADV:N"Y 11 11000,0
�cw-JEWALPuukL(sAlr 9 2m ;0
N4 AdGFtE-GA,9 QMIT APRLIES.IV i, PRbtS)qfb-POM;O AcO` i 2100010
POLICY X RR4 LOC I I I i
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A X .w1Y alirO 3.2058358 1213112Gt3 1213,112014 8WILY K)URY(F er person)` i
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i
X UMOREI.LAL". OPT: EACH QCC11rtRENCF s $,000,00.
A EXCESS I" E1p,IM&MADE S 283 112,0_3 1131124 G.cREGTr:3 304010
1.0m I X I RS knON: D i
word PSCgISPENSATION' s n O
;AND ErR+�LOYE06i LY 3KM y!�
AA}}��PI7CPF TORIPAItiT�RIEJ CUnVE,'{I N E L EACH AWDEW
OFfIiRRAETi19EREXGLLDED9 u NLA.
(Menddery.In NH) �l pfP.f.1+F.E E'h'�N`LOV. i
Ifyyesss descrldq
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068ChIPTIDN 'OP tsFYATipNi I LOCA'[IONS f VEFitC{E$ fA16etH}� ORD/D1.napluw,d R.mrin l3cn.aul.,frme...pe�.,iY:n4uk�d}
Cert faloat:e:Hnld;b r is ad'tdit;ional irisurea as respects gene►rai liability. as
required bir mritt:dn caatract, �Proj'eYat: .eothe4rxaal Cdntraot,
CERTIFICATE HOLDER CANCELLATION
ORANOPU
SHOULD ANY-OF THE-ABOVE DESCRIOBD'POLICIEWISE OANCELLOD SWORE
THE EXPIRATION DATE THEREOF, NOTICE HALL BE DELIVERED IN
ACCORDANCE VATH THE POLICY PROVISIONS.
Ccunty of Orange Financial
Services A!*R=o RriPF*#NTAVX
pfontetl�gU,ordnge.nc;L!'5 '
PO Box 851914nn Aauintir.4!15
M1119boraugh.NC 77
0'1886-8010 1CORQ`OORPORATION. AIVrIghte.*q%erred.
ACORD-25(2010105) The ACORD name and logo are registered marks of ACORD
A#l.r C>R" DATE(MMRID/YYYY)
- CERTIFICATE OF LIABILITY INSURANCE 11/=13
THIS CERTIFICATE IS ISSUED ASR 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).
PRODUCER CONTACT
FEDERATED MUTUAL INSURANCE COMPANY NAME: CLIENT CONTACT CENTER
HOME OFFICE: P.O.BOX 328 (A/C,No Est:888-333-4949 FAX,`No_507-446-4664
OWATONNA, MN 55060 no RIESs:CLIENTCONTACTCENTER FEDINS.COM
INSURER(S)AFFORDING COVERAGE NAIC$
INSURER A:FEDERATED MUTUAL INSURANCE COMPANY 13935
INSURED
346-$00-2 INSURER B: _
WARREN HAY MECHANICAL CONTRACTORS INC INSURER C:
PO BOX 818
HILLSBOROUGH,NC 27278 INSURER D:
INSURERS:
INSURER F:
COVERAGES CERTIFICATE NUMBER:156 REVISION NUMBER:4
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.
INSR TYPE OF INSURANCE INSR SW VD POLICY NUMBER POLICY EFF POLICY EXP
MIDDIY Y MMIODIYYYY LIMITS
GENERAL LIABILITY EACH OCCURRENCE
COMMERCIAL GENERAL.LIABILITY DAMAGE TO RENTED
PREMISES Ea occurrence)
.CLAIMS-MADE ❑OCCUR MED EXP(Any one Person)
PERSONAL&ADV INJURY
GENERAL AGGREGATE
GEWL AGGREGATE LIMIT.APPLIES PER: PRODUCTS-:COMPIOP AGO
MPOUCY JJ,ECT 7 LOC.
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT
(Ea accident)
ANY AUTO BODILY INJURY(Per person)
ALL OWNED SCHEDULED
AUTOS AUTOS BODILY INJURY(Per accident).
HIRED AUTOS NON OWNED
AUTOS PROPERTY DAMAGE.
. Pe iden
UMBRELLA LIAR HOCCUR
EACH OCCURRENCE
EXCESS LIAR CLAIMS-MADE AGGREGATE
DED I .RETENTION
WORKERS COMPENSATION X WC STATU• OTH-
AND EMPLOYERS'LIABILITY YIN ]TORY] ER
ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $500,000
A OFFICERIMEMBER EXCLUDED? []NIA N 9076999 12/31(2013 1.2/31/2014
(Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $500,000
It yes,describe under
DESCRIPTION OF OPERATIONS below. E.L DISEASE-POLICY LIMIT $500,000
DESCRIPTION.OF OPERATIONS I LOCATIONS I VEHICLES(Attach ACORD 101,Addifienaf Remarks Schedule,it more space is required)
CERTIFICATE HOLDER CANCELLATION
346-500-2 1560
ORANGE COUNTY FINANCIAL SERVICES SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
PO BOX 8181 THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
HILLSBOROUGH, NC 27278-8181 ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
Q 1988-2010 ACORD CORPORATION.Ali rights resolved.
ACARD 25(2010705) The ACORD name and logo are registered marks of ACORD
'� " CERTIFICATE OF LIABILITY INSURANCE "A 070f"3
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 poliay(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).
PRODUCER C NTACT CLIEN CONTACT
FEDERATED MUTUAL INSURANCE COMPANY
HOME OFFICE:P.O.BOX 328 Who, •888-333-4949 •507-4t6-4664
OWATONNA,MN 55060 kifts.CLIENTCONTACTCENTER FEDINS.COM
IN URER 5 AFFORDING COVERAGE NAIC#
INSURER A:FEDERATED MUTUAL INSURANCE COMPANY 13935
INSURED 346-500.2 INSURER B:
WARREN HAY MECHANICAL CONTRACTORS INC INSURES C:
PO BOX 818 INSURER D:
HILLSBOROUGH,NC 27278
INSURER E:
INSURER F:
COVERAGES CERTIFICATE NUMBER:156 REVISION NUMBER:0
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.
INS TYPE OF INSURANCE I 4VUDR POLICY NUMBER LID EFW MWD POLICY EXP LIMITS
GENERAL LIABILITY EACH OCCURRENCE
COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED
CLAIMS-MADE F]OCCUR MED EXP(Any one per-in)
PERSONAL&ADV INJ RY
GENERAL AGGREGATE
GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMPiOf AGG
M n
.POLICY LOC
AUTOMOBILE LIABILITY CEOMBINED SINGLE LI IT
ANY AUTO BODILY INJURY(Per lit mon)
ALL OWNED SCHEDULED.
AUTOS AUTOS BODILY INJURY(Per a4cident)
HIRED AUTOS NON-OWNED
AUTOS P20aER]. AMAGE
UMBRELLA LIAB OCCUR EACH OCCURRENCE
EXCESS LIAR CLAIMS-MADE AGGREGATE
DED I t RETENTION
WORKERS COMPENSA71ON we UU TH
AND EMPLOYERS'LIABILITY X TORY LAMITS OER
ANY PROPRIETORIPARTNERIEXECUTIVE E.L.EACH ACCIDENT $500,000
A OFFICER+MEMBEREXCLUDED? NIA N 5076999 12/31/2012 12131/2013
(Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $500,000
I[yyes,describe under $50U 000
DESCRIPTId OF OPERATIONS below E.L DISEASE-POLICY LIMIT
DESCRIPTION OF OPERATIONS 1 LOCATIONS I VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space is required)
POLICY COVERAGE AS OF 06/29/2013
CERTIFICATE HOLDER CANCELLATION
346-500-2 1560
ORANGE COUNTY FINANCIAL SERVICES SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
PO BOX 8181 THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
HILLSBOROUGH,NC 27278-8181 ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
C 1988-2010 ACORD CORPORATION.All rights reserved.
ACORD 25(2010105) The ACORD name and logo are registered marks of ACORD