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HomeMy Public PortalAboutphillips and jordan 2016-687.pdfSTATE OF GEORGIA ) COUNTY OF CHATHAM ) AGREEMENT THIS AGREEMENT for Debris Removal Disaster Recovery Services, herei n after referred to as "Agreement," is made and entered into as of the S day of Ifttamper, 2016 (the "Date Hereof'), by and between PHILLIPS & JORDAN, INC., whose address for purposes of this Agreement is 10201 Parkside Drive, Suite 300, Knoxville, Tennessee 37922, hereinafter referred to as "the Company" and THE CITY OF TYBEE ISLAND, a municipality, whose address for the purposes of this Agreement is 403 Butler Avenue, Post Office Box 2749, Tybee Island, Georgia 31328, hereinafter referred to as "the City." WITNESSETH: WHEREAS, the City is a municipal corporation organized under Georgia law; and WHEREAS, the City has determined that it has a need for EXPANDED SCOPE OF SERVICES in connection with Disaster Recovery Services, specifically Hurricane Matthew debris removal, collection and disposal of tree stumps on public rights of way, improved public property and areas; and WHEREAS, the City has issued a Request for Proposal Num WHEREAS, the Company has responded the Request for Proposal and has presented a proposal indicating that it is able to satisfactorily provide services according to the terms and conditions of the Request for Proposal; and WHEREAS, the City desires to utilize the services of the Company in accordance with the needs, requirements, teens and conditions contained in Request for Proposal Number 2016- 687 (Hurricane Matthew Debris Removal, Collection and Disposal of Tree Stumps on Public Rights of Way, Improved Public Property and Areas) and the proposal submitted by the Company in response to the RFP and the RFP and the Company's proposal are attached hereto and incorporated herein; and WHEREAS, the City has determined that it is in its best interest, pursuant to all FEMA required provisions relating to reimbursement rights to award such contract for debris recovery services and debris removal, collection and disposal of tree stumps on public rights of way, improved public property and areas; and 1 WHEREAS, the Company and the City desire to document the current terms and conditions of their agreement. NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, the receipt and sufficient of which is hereby acknowledged, it is hereby agreed as follows: ARTICLE 1 BASIC AGREEMENT The Company will perform Hurricane Matthew debris removal, collection and disposal of tree stumps on public rights of way, improved public property and areas for the City of Tybee Island in accordance with the RFP and the Company response. The City will provide the information required by the RFP. The Company shall be compensated for its services as provided in the Company's Proposal. ARTICLE 2 COVENANTS AND REPRESENTATIONS 2.1 Covenants of the Company. The Company shall perforin professional Debris Removal in accordance with the Company's Proposal and the Terms and Conditions contained in the RFP and contained herein. 2.2 Representations. To induce the City to enter into this Agreement, the City shall be entitled to rely upon the representations and certifications made by the Company in the Company's Proposal, without independent investigation and verification, and each such representation or certification shall be deemed to be material to this Agreement. The person negotiating and executing this Agreement on behalf of the Company has the full right, power and authority to enter into, execute and perform this Agreement in accordance with the terms hereof and, when executed and delivered, this Agreement will constitute a valid and binding obligation of the Company and will be enforceable in accordance with the terms thereof. ARTICLE 3 FEES The Company shall be paid for its services as provided in the Company's Proposal. Supplemental services shall be compensated in the manner set forth in the Company's Proposal. Fees must be in line with FEMA reimbursement guidelines, the City will not pay any amount not previously agreed to. 2 ARTICLE 4 CONTINGENCIES 4.1 Contingent Obligations of the City. The obligations of the City are subject to the following conditions: 4.1.1 The ability of the City to carry out the terms of this Agreement in accordance with the laws and Constitution of the State of Georgia. 4.1.2 The timely performance by the Company of each and every covenant, agreement and obligation imposed upon the Company in this Agreement. 4.1.3 The truth and accuracy as of the Date Hereof of each and every representation made by the Company. 4.1.4 This Agreement is expressly made subject to other laws affecting its subject matter. In the event of any conflict between such laws and this Agreement, such laws shall take precedence. 4.2 Contingent Obligations of the Company. The obligations of the Company are subject to the following conditions: 4.2.1 The timely performance by the City of each and every covenant, agreement and obligation imposed upon the City in this Agreement. ARTICLE 5 TERMINATION 5.1 Right to Terminate for Convenience. The City Council of the City of Tybee Island and the Company agree that either party may terminate this Agreement for any reason, or for no reason, upon giving the other party thirty (30) days written notice of the termination. In the event of a termination for convenience by the City, the remedies of the Company shall be to be compensated for work done through the effective date of the notice of termination for convenience. In the event the City is notified by FEMA that reimbursement will not be made for services subject hereto, the City may give inunediate notice to terminate all debris removal service relating thereto and such service will cease immediately. The Company will be compensated for services through the time of termination. 5.2 Termination for Cause. If, through any cause, the Company shall fail to fulfill in a timely and proper manner its obligations under this Agreement, or if the Company shall violate any of the covenants, agreements, or stipulations of this Agreement, the Company shall be breach of this Agreement and the City shall thereupon give written notice of default to the Company and allow the Company seven (7) calendar days from such notice to cure such default. After notice, the City shall have the right to terminate this Agreement by giving written notice to the Company of such termination and specifying the effective date thereof, at least five (5) days before the effective date of such termination. 3 If the City fails without cause to make payment when due, the Company may give written notice of the Company's intention to terminate this Agreement. If the Company fails to receive payment within ten (10) days after receipt of such notice by the City, the Company may give a second written notice and five (5) days after receipt of second written notice by the City, the Company may terminate this Agreement and recover from the City payment for services rendered. ARTICLE 6 CODE OF FEDERAL REGULATIONS COMPLIANCE The provisions of this contract are intended in all respects to comply with the terms of applicable Code of Federal Regulations, including 2 CFR 200 and Appendix II to Part 200 in all respects and this contract shall be interpreted in accordance with that intention. Thus, to the extent applicable, the Davis -Bacon Act, as amended, will be complied with to the extent applicable, although the parties do not believe that this contract is a "construction contract" subject to the terms of that Act. ARTICLE 7 NOTICES Any notice, demand, communication, or request required or permitted hereunder shall be in writing and delivered in person or sent by certified mail, postage prepaid, although a copy may also be transmitted by electronic mail, as follows: As to the City: The City of Tybee Island ATTN: City Manager 403 Butler Avenue Post Office Box 2749 Tybee Island, Georgia 31328 dschleicher@cityoftybee.org As to the Company: Phillips & Jordan, Inc. ATTN: Disaster Division 10201 Parkside Drive, Ste. 300 Knoxville, Tennessee 37922, dorr®pandj.com Notices shall be addressed to the party or parties identified and at the address as set forth above, and the date upon which such notice is delivered shall be deemed the effective date thereof. Either party may, from time to time, by five (5) days' prior written notice to the other party, specify a different agent or address to which notices can be delivered. Rejection or other 4 refusal to accept a notice or inability to deliver a notice because of a changed agent or address of which no notice was given shall constitute receipt of the notice on the date when personal service is attempted or the date of the postmark if mailed. ARTICLE 8 DISPUTE RESOLUTION If a dispute arises from or in connection with this contract, a party to the contract must not commence court or other proceedings relating to the dispute unless that party has participated in mediation in accordance with the paragraph below. This paragraph does not apply to an application for urgent interlocutory relief. A party to this contract, claiming that a dispute has arisen from the contract, must give a written notice identifying the nature of the dispute to the other party or parties to the contract. The parties must then participate in mediation in accordance with this Article. If the parties do not reach an agreement within seven (7) days of receipt of the notice to mediate or within a longer period agreed to in writing by them on the procedures to be adopted and a mediation of the dispute and a timetable for all steps in the process and the identity and fees of the mediator, then each party will appoint a mediator and those mediators shall select an additional mediator whose fees will be shared equally by the parties. The parties agree to participate in good faith in the mediation process as expeditiously as possible. In the event mediation is not successful, the parties or any party shall be entitled to pursue remedies through legal process in accordance with this Agreement and the laws of the State of Georgia. ARTICLE 9 INDEMNIFICATION Company agrees to indemnify, defend and hold City, City's employees, and those for whom City may act as agent harmless from (1) any and all claims and liabilities for injuries or death of persons or damages to or destruction of property caused by or resulting from the acts or omissions of Company, its agents, subcontractors, suppliers or employees in the performance of this order; (2) any other loss caused by or resulting from the acts or omissions of Company, its agents, subcontractors, suppliers or employees in the performance of this order; (3) any loss caused by or resulting from the supplies purchased under this order, (4) any intended use of products or materials provided by Company under this order; (5) any defective products or materials provided by Company under this order, including without limitation the use or disposal of hazardous and/or toxic materials, such materials to include at minimum all materials recognized by the Environmental Protection Agency as hazardous; or (6) any breach by Company of any express or implied warranties under this order. If Company's work hereunder 5 involves operations by Company's agents, subcontractors, suppliers or employees on City's premises or any place where City conducts operations, Company shall take all necessary precautions to prevent the occurrence of any injury or damage to persons or property during the progress of such work. Further, Company shall indemnify, defend and hold City, City's employees, and those for whom City may act as agent harmless for any injuries occurring to Company's agents, subcontractors, suppliers or employees and Company shall maintain public liability, property damage and employee's liability and compensation insurance sufficient to protect City from any claims under any applicable law, statute, or regulation. ARTICLE 10 APPROPRIATION Notwithstanding any other provision hereof', this Agreement shall terminate at the end of the City's fiscal year, June 30, 2017, if the City has not appropriated funds for the obligations hereunder for the next fiscal year. ARTICLE 11 RIGHTS CUMULATIVE All rights, powers and privileges conferred hereunder shall be cumulative and not restrictive of those given by law. ARTICLE 12 NON -WAIVER No failure of the City to exercise any right or power given to the City under this Agreement, or to insist upon strict compliance by the Company with the provisions of this Agreement, and no custom or practice of the City or the Company at variance with the terms and conditions of this Agreement, shall constitute a waiver of the City's right to demand exact and strict compliance with the terms and conditions of this Agreement. ARTICLE 13 CONTINUITY Each of the provisions of this Agreement shall be binding upon and inure to the benefit and detriment of the Company and the City and the heirs, devisees, legatees, legal representatives, successors and assigns of the Company and the City. 6 ARTICLE 14 TIME OF THE ESSENCE All time limits stated herein are of the essence of this Agreement. ARTICLE 15 CAPTIONS The brief headings or titles preceding each provision hereof are for purposes of identification and convenience only and should be completely disregarded in construing this Agreement. ARTICLE 16 NO ASSIGNMENT, NO THIRD PARTY BENEFICIARIES 12.1 This Agreement is a personal retention of the Company as an independent contractor. The Company must perform by its own forces and may not delegate, subcontract, assign, transfer, or otherwise obtain its performance of this Agreement without the express written consent of the City. 12.2 Nothing herein shall be construed as conferring upon or giving to any person, other than the parties hereto, any rights or benefits under or by reason of this Agreement. ARTICLE 17 DRUG FREE WORKPLACE It is the policy of the City of Tybee Island that its work place shall be a drug free workplace in compliance with the Drug Free Work Place Act, 41 U.S.C.S. 701 et seq. ARTICLE 18 PROHIBITED INTERESTS 16.1 Conflict of Interest. The Company and its subcontractors warrant that it presently has no interest and shall acquire no interest, direct or indirect, that would conflict in any manner or degree with the performance of its services hereunder. The Company further agrees that, in the performance of the contract, no person having any such interest shall be employed., 12-1- r . 2 a.e 16.2 Interests of Public Officials. No member, officer, or employee of Chachaar-eennty; = rig-. Georgia, 4 - Georgia, during his tenure, shall have any interest, direct or indirect, in this contract or the proceeds thereof. 7 ARTICLE 19 DOCUMENTS COMPRISING CONTRACT a. City of Tybee Island's Request for Proposal and all its addenda and attachments issued on ytio v y 2 O/C b. Contractor's Certificate of Insurance as required and stated in Request for Proposal; and c. Contractor's Proposal. If there is a conflict between the terms of this Agreement and the above referenced documents, then the conflict shall be resolved as follows: the terms of this Agreement shall prevail over the other documents, and the terms of the remaining documents shall be given preference in their above listed order. IN WITNESS WHEREOF, the Company and the City have caused these presents to be duly signed, sealed and delivered on the day, month and year first above written. PHILLIPS & JORDAN, INC. By: Name: i rl Iz r! Title: CironA Attest: Name: Title: APPRO AS TFO Edward, City A 8 CITY OF TYBEE ISLAND, GEORGIA By: Sp 6c:v- Name: ear, Title: Attest: Name: JRae7- jeU/ 7 , Title: C Ce /e_ I C01-.c11u.Q. SPECIAL STIPULATION Phillips & Jordan, Inc. debris removal, collection and disposal of tree stumps on public rights of way, improved public property and areas (2016-687) —NOT TO EXCEED $40,000.00 PHILLIPS & JORDAN, INC. CITY OF TYBEE ISLAND Initials 572/1034/687 Phillips and Jordan/Agreement 12.01.16 572/1034/687 Phillips and Jordan/Agreement — rev 12.02.16 per Mitchum 9 City of Tybee Island RFP #2016-689 Tree Stump and Leaning Tree Debris Removal Attachment L Fee Schedule ITEM DESCRIPTION 24.1 inches to 36.99 inch diameter Eligible Stump 400 600 850 14 6 inch to 12.99 inch diameter Eligible Leaning Tree 13 inch to 24.99 inch diameter Eligible Leaning Tree 25 inch to 36.99 inch diameter Eligible Leaning Tree 37 inch to 48.99 inch diameter Eligible Leaning Tree 49 inch and larger diameter Eligible Leaning Tree (Per tree) Removal of Eligible Hanging Limbs >2" 250 500 850 145 City of Tybee Island RFP #2016-689 Tree Stump and Leaning Tree Debris Removal Service Description HOURLY RATE Personnel & Equipment (Operator, fuel, maintenance included) Small Loader or Lrg. Skidsteer, (Push machine, wheeled or rubber tracked) 110 Knuckleboom Loader Truck (Self -Loading 25-35 CY) 165 Dump Track (16 to 24 CY) 90 Supervisor with Truck Oman, will assist toss operations) 95 Operators with Chainsaw (2 or 1 mancrew, cut and toss) 50 Laborer with Tools (1 man, toss) 45 Traffic Control/Safety Personnel (2 man crew, as needed) 90 Total Hourly 645 THE AMERICAN INSTITUTE OF ARCHITECTS Bond No. 018038109 AIA DocumentA312 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Philips and Jordan, Incorporated 10201 Parkside Drive, Ste. #300 Knoxville, TN 37922 OWNER (Name andy4ddress): City of Tybee Islam); GA 403 Butler Avenue Tybee Island, GA 31326-2749 CONSTRUCTION CONTRACT Date: December 2, 2016 Amount $40,000.00 Forty Thousand Dollars and 00/100 Description (Name and Location): RFP 2016-687 Hazardous Leaning Trees and Tree Stump Recovery SURETY (Name and Principal Place of Business): Liberty Mutual Insurance Company 175 Berkeley Street Boston, MA 02118 BOND Date (Not earlier than Construction Contract Date): December 2, 2016 Amount: $40,000.00 Forty Thousand Dollars and 00/100 Modifications to this Bond: 8 None CONTRACTOR AS PRINCIPAL Company: Phi(Ips and Jordan, Incorporat Signature: Name and Title (Corporate Seal) d{ tiA•.i •M9 , 1/. 'p it4. (Anyadditional signatures appear on page 3) 0 SeePage3 SURETY Com (Corporate Seal) erty Mytual [mu r Ace C pany S[gnatui Name and Tile:Tom H. McCarley III Attomey-in-Fact (FOR INFORMATION ONLY- Name, Address and Telephone) AGENT or BROKER: J. Smith Lanier & Co. 413 Northshore Dr., SW Knoxville, TN 37919 865-588-7200 OWNER'S REPRESENTATIVE (Archlteet Engineer orother AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1880 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 THIRD PRINTING • MARCH 1987 A312.1984 1 1 The Contractor and the Surety, Jointly and severally, bind themselves, their heirs, executors. administrators, successors and assigns to the Owner for the performance of theConstructfonContract, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obtigadon under this Bond, except to participate in conferences as provided in Subparagraph 3.1. 3 If there Is no Owner Default, the Surety's obligation under this Bond shall arise after: 34 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surely to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construc- tion Contract. If the Owner, the Contractor and the Steely agree, the Contraetorshall be allwveda tenon - ale time to perform the Construction Contract, but such anagreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Defatdt and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be de - dared earlier than twentydays after the Contractor and the Surety have received notice as provided in Sub- paragraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in actor - dance with the terms of the contract with the Owner. 4 When the Owner has satisfied the conditions of Para- graph 3, the Surety shah promptly and at the Surety's ex- pense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 UndertaketoperformandcompletetheConmrc tion Contract itself. through its agentsor through inde- pendent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Con- struction Contract, arrange for a contract to be pre• pared for execution by the Owner and the contractor selectedwith the Owner's concurrence, tabe secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in ex- cess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4.4 Waive its right to perform and complete, arrange for completion. or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amain: for whkh it may be liable to the Owner and, as soon as practicable after the amount is deter- mined, tender payment therefor to the Owner; or .2 Denyliabilityinwheleorinpanandnotify the Owner citing reasons therefor. 3 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness. the Surety stiall tie deemed to be in default on this gond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shag be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or rite Surety has denied liability. in whole or in put, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and it the Surety elects to act under Subparagraph 4.1, 4,3, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract. and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the lint of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price tomitiggaationof costsanddamages on theConstructionConnract,theSure- ty is obligated without duplication for: 6.1 The responsibilities of the Contractor for correc- tion of defective work and completion of the Construc- tion Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and re- sulting from the actions or failure to act of the Suety under Paragraph 4; and 6.3 Liquidated damages. or if no liquidated damages are specified in the Construction Contract, actual dam- ages the mused y delayed performance or non per(or- In 7 The Surety shall not be liable to the Owner or other for obligations of the Contractor that are unrelated to the Con- struction Contract, and the Balance of the Contract 'Price shall not be reduced or set oil on account of any wdi unrelated obligations. No right of action shag accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators or successors. 6 The Surety hereby waives notice of any change,includ- ingg changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obliga- tions. 9 My proceeding. legal or equitable. under this Bond may be instituted in any court of competent jurisdiction in the location in which or pan oftheworkislocated and shalt be instituted within two years after Contractor Default o within two years after the Contractor ceased working orwith(n two years after theSurety refuses or fails to perform lis abllga*ions under this Bond, whichever oc- curs first. if the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation avait- AW DOCUMENT A313 •PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1854 ED. •AIAe THEAMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVE.. N.W., WASHINGTON, D.C. 20800 THIRD PRINTING • MARCH 1987 A312-1984 2 able to sureties as a defense in the Jurisdiction of the suit shall be applicable. 10 Notice tothe Sures, the Owner orthe Contractor shall be mailed or delivered to the address shown on the sig- nature page. 11 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed Incorporated herein. The Intent is that this Bond shalt be construed as a statutory bond and not n a common law bond. 12 DEFINt11ONs 12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Con - MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: tractor 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, re- duced by ail valid and proper payments made to or on behalf of the Contractor under the Construction Con- tract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to per- form or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Con- tractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company. (Corporate Seal) Signature: Name and Title: Address: SURETY Company: (Corporate Seal) Signature: Name and Title: Address: AIA DOCUMENTA312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE. OF ARCHITECTS, 1735 NEW YORK. AVE.. N.W., WASHINGTON, D.C. 28008 THIRD PRINTING • MARCH 1987 A312-1984 3 THE AMERICAN INSTITUTE OF ARCHITECTS Bond No. 018038109 AIA Document A312 Payment Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): Philips and Jordan, Incorporated 10201 Parkside Drive, Ste. #300 Knoxville, TN 37922 OWNER (Name and Address): City of Tybee Island, GA 403 Butler Avenue Tybee Island, GA 31328-2749 Liberty Mutual Insurance Company 175 Berkeley Street Boston, MA 02116 CONSTRUCTION CONTRACT Date: December 2, 2016 Amount: $40,000.00 Forty Thousand Dollars and 00/100 Description (Name and Locatlon)REP 2016-687 Hazardous Leaning Trees and Tree Stump Recovery BOND Date (Not earlier than Construction Contract Date): December 2, 2016 Amount $40,000.00 Forty Thousand Dollars and 00/100 Modifications to this Bond: 0 None CONTRACTOR AS PRINCIPAL SURETY Company: (Co .:rate Seal) Company:�, Phillips and Jordan, Incorporated Liberty emu Signature: Name and Title: (Any additional signatures appear on page 6) Signature: Name and 1 See Page 6 (Corporate Seal) any e: Tom H McCarley III Attorney -in -Fact (FOR INFORMATION ONLY - Name, Address and Telephone) AGENT or BROKER: J. Smith Lanier& Co. 413 Northshore Dr., SW Knoxville, TN 37919 865-588-7200 OWNER'S REPRESENTATIVE (Architect, Engineer or other PertY) : AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1994 ED. • AMA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 29906 THIRD PRINTING • MARCH 1987 A312-1984 4 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated hereinby reference. 2 With respect to the Owner, this obligation shall be null and void if the Contractor. 2.1 Promptly makes payment, directly or Indirectly, for all sums due Claimants, and 2.2 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose claim, demand, lien or suit Is for the payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. 3 Wlth respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for ail sums due. 4. The Surety shall have no obligation to Claimants under this Bond until: 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: .1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment Included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed; and .2 Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above notice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and .3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 5 H a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety, that is sufficient compliance. 6 When the Claimant has satisfied the condtions of Paragraph 4, the Surety shall promptly and at the Surety's expense take the following actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed. 6.2 Pay or arrange for payment of any undisputed amounts. 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faithby the Surety. 8 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract end to satisfy claims, If any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that as funds earned by the Contractor In the performance of the Constructlon Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligatlons to Claimants under this Bond. 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 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. if the provision 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 shat be applicable. 12 Notice to the Surety, the Owner or the Contractor shall be mailed or dellvered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. 13 When this Bondhas 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 MA DOCUMENT A912 • PERFORMANCE BOND AND PAYMENT BOND• DECEMBER 1984 ED. • AUT® THE AMERICAN INSTITUTE OF ARCHITECTS, 1736 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 THIRD PRINTING MARCH 1987 A312-1984 5 conflicting with said statutory or legal requirement shall be deemed deleted hereby= and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 44 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly fumish a copy of this Bond or shall permit a copy to be made. 15 DEFINfiIONS 15.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limitation In the teens labor, materials or equipmenP that part of water, gas, power, light, heat, oil, gasoline, telephone MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: 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. 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, Including all Contract Documents and changes thereto. 15.3 Owner Default Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perforin and complete or comply with the other terms thereof. Paragraph 6 above is deleted in its entirety and the following is substituted in its place: 6. When the Claimed has satisfied the conditions of Paragraph 4, and bas submitted to the Surety, all supporting documentation and any proof ofctaimrequested by the Surety, The Surety shall, with reasonable promptness, notify the Clahnantofhe amounts that are undisputed and the basis for challenging any amountsibatare disputed, including, batnot limited to, the lack of substantiating documentation to support the claim as to entitlement or amount, and the Surety shall, with reasonable promptness, payor utak* arrangements for payment of anyuadispnted amount provided, however, that the failure ofthe Surety to timely discharge its obligations under this partesphorto dispute or identify any speclfic defense to aU or any part ofa clafmshall not bedeemed lobe an admission efIlabiity by the Suety as to such; claim or otherwise constitute a waiver of the Contractor's or Surety's defenses to, orrigbt to dispute, such claim. Rather, the Claimant shall have the immediate right, without Anther notice, to bring suite against the Surety to enforce any remedy available to it underthis Bond. (Space is provided below for additional signatures of added parties, other than those appearing on thecover page.) CONTRACTOR AS PRINCIPAL Company. SURETY (Corporate Seal) Company. (Corporate Seal) Signature: Signature: Name and Tike: Name and Title: Address: Address: AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. •Alt® THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006. THIRD PRINTING • MARCH 1987 A312-1984 6 :3 C -_R w m d Off, 7 D. WW 0 e. a cm and E E 1- m .10 CO C >E O Zn THIS POWER OF ATTORNEY IS NOT VALIDUNLESS IT IS PRINTED ON RED BACKGROUND. This Rower ofAttomeylimlmthe acts of those namedherein, and they have no authority to bind the Company except In the manner and to the extent herein stated. Certificate No. 744517e American Fire and Casualty Company Liberty Mutual Insurance Company The Ohio Casualty Insurance Company West American Insurance Company POWER OF ATTORNEY KNOWNALL -PERSONS BY THESE PRESENTS: That American Fire & CasualyCompany and The Ohio Casualty Insurance Company are corporations duly organized under the taws of the Stated: New Hampshire, that Liberty Mutual InsuranceCompany is a corporation duly organized under the laws of the State p1 Massachusetts, and West Americaninsurance Company Is a corporation duly organized under the lava of the State of Indianatherein cotiectively called the 'Conroaniesl, pUrSUarit kr and by authority hereinsettorth,doesherebyname,consttute and appoint, Catherine L. McMillan; Marilyn S. Spoon; Melissa A. Yardley: Tom H. McCarley111 all of the city of Knoxville.. state of TN - each indMdualty if there be more than one named, its true and lawful ahomey=n-fad to make, execute, seal, admowledge and deliver; for and on is behalf as surety and as its act and deed anyand al undertaldngs, bonds, recognizaeces aid other surety obligations, invursuana of these presents and shag be as binding upon the Companies as if they have been duly signed by thepresident and attested by the secretary of the Companies in their own prober persons IN WITNESS WHEREOF, this Power of Attorney has bean subscribed by an authorized officer or official of the Companies and the corporate seals of the Companies have been affixed thereto Das am day of :'. August 2016. American Fire and Casualty Company The Ohio Casualty Insurance Company Liberty Mutual Insurance-Conghany WestAnleriran Insurance.Company STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY On this em day of August 2016 before one personalty appeared David M. Carey, who acknowledged himself to be the Assistant Secretary of American . Fire and Casualty Camay Liberty Mutual Insurance Company, The Ohio Casualty Insurance: Company, and West American Insurance Company, and tat he, as such, being authorized: so to do, execute the foregoing instrument for the purposes therein contained by signing on behalf of the corpaabors by himself as a duty authorized officer.. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my notarial seat at Plymouth Meeting;. Pemisylvama, on the day and year first above written. err: Aisgsd!q BY: y David M. Care ,Assistant$ ry P Pqa COMMONWEALTH OF PENNSYLVANIA Notarial Seal Teresa Restage, Notary Public Plymouth Twp., Montgomery County My Commission Expires March 28. 2017 any c+rti' Member, Pa,msylva : J mAssaden of Notaries This PowerofAtorney is made and executed pursuant to an by authority tithe following By-laws and Authorizations of American Fire and Casualty Company, The Otho Casualty Insurance Company, Liberty Mutual Insurance Company, and WestAmerian Insurance .Company which matrons are now in full force and effect readf igas follows: ARTICLE N- OFFICERS -Sedion 12: Prover of Attorney. Any officer or other official of the Corporation authorized for that purpose in writing by the Chairman or the President and subject to such Imitation as the Chaimnan or the President ntay presaibe, Shall appoint such atomeysumfact as may be necessary to act in behalf of the Camoraton to make, execute, seal, acknowledge and deliver as surety any and WI undertakings, bonds, recognizances and other surety obligations. Such attorneys -in -fact, subject to the limitations setforth in ten respective powers of attorney, shall have full power to bind be Corporation by their signature and execution of any such instruments and to attach thereto the seal of the Corporation. When so executed, such instruments shag be as binding as if signed by the President and attested to by the Secretary. My pow or authority granted to any representative or attorney-in-fact under the provisions of this article may be revoked at any time by the Board, the Chairman, the President or by the officer or officers granting such power or authority. ARTICLE Xm- Execution of. Contracts -SECTION 5. Surety Bonds and Undertakings. My officer of the Company authorized for that purpose in wiling by the chairman or the president, and subject to such limitations as the chairman alba president may prescribe, shall appoint such attomeys-in-fact as may be necessary to act in behalf of the Company to make, execute, seal, acknowledge and deliver as surely: any and all undertakings, bonds,:recoghizalces and other surety obligations. Such attorneys -in -fact subject to the limitations set forth in their respecgye powers of attorney shall have full power to bind the Company by their signature and execution of any such instruments and to attach thereto the seal of the Company. When so executed such instruments shall be as binding as d sicced by the president and attested byte secretary. Certificate of Designation - The President of the Company, acting pursuant to the Bylaws of the Company,: authorizes David M. Carey, Assistant Secretary toappoint such attomeys-in- fact as may be necessary to ad on behalf of the Company to make, execute, seat acknowledge and deliver as surety any and at undertakings, bonds, recagnizances and other surety obligations. Authorization - By unanimous consent or the Company's: Board of Directors, the Company consents that facsimile or mechanically reproduced signature of any assistant seaetwy of the Company; wherever appearing upon a certified copy 01 any power of attorney issued byte Company in connection wit surety bonds, shall be valid and binding upon the Company wah the same force and effect as though manually affixed. I, Gregory W. Davenport the undersigned, Assistant Seaetary, of American Fire and Casualty Company, The Ohio Casualty insurance Company, Liberty Mutual Insurance Company, and West American Insurance Company do hereby certify that the original power of attorney of which the foregoing is a fuer, true and correct copy of the Power of Attorney executed by sad Companies, is in MI force and effect and has not been revoked. i WTESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies th t dayof fG/2Ci�vr�sq 20 )t Teresa Pesteta, Notary Public LMS_ 12873_122013 BY: Gregory W. Davenport. Assistant Secretary