036-21 - Active Construction, Inc. - ContractCITY OF PORT ORCHARD
SIDNEY AVENUE SEWER REPAIR
CONTRACT NO.036-21
THIS CONTRACT ("Contract") is made and entered into this 131 day of April 2021, by and between the
City of Port Orchard, a municipality incorporated and existing under the laws of the State of Washington,
hereinafter called the "City," and Active Construction Inc., hereinafter called the "Contractor."
WITNESSETH:
That the Contractor, in consideration of the covenants, agreements and payments to be performed and made
by the City, hereby covenants and agrees to furnish all labor, tools, materials, equipment and supplies
required for, and to execute, construct and finish in full compliance with the Contract Documents, the
SIDNEY AVENUE SEWER REPAIR. The Contractor further agrees to perform all such work for the
Contract Price stated in the Contractor's Bid Proposal dated March 11, 2021, attached hereto and
incorporated herein by this reference as if set forth in full.
The Contract Documents, duly identified, together with the Instructions to Bidders, a confirmed copy of
the Proposal made by the Contractor on March 11, 2021, and the 2021 WSDOT Standard Specifications
for Road, Bridge, and Municipal Construction, as modified by Amendments and Special Provisions, are
hereby made a part of this Contract and are mutually cooperative therewith. Time is of the essence of this
Contract. It is agreed that the work covered by this Contract shall start within 14 calendar days after Notice
to Proceed is issued and that all construction shall be complete within 50 working days after the Notice to
Proceed Date.
Contract Price. The Contractor shall complete all Work for the price of Three Hundred Fifty -Eight
Thousand Three Hundred Fifty -Eight Dollars ($358,358.00).
It is further agreed that the City will suffer damage and be put to additional expense in the event that the
Contractor shall not have the specified portions of the work completed in all its parts in the time specified,
and as it may be difficult to accurately compute the amount of such damage, the Contractor expressly
convents and agrees to pay to the City liquidated damages, the sum as calculated by the equation shown in
Section 1-08.9 of the WSDOT Standard Specifications, for each and every working day said work is not
complete beyond the time shown in the Proposal.
The City of Port Orchard, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252,
42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation
subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the
Department of Transportation issued pursuant to such Act, must affirmatively insure that its contracts
comply with these regulations.
Also, in accordance with Title VI, the City is required to include the following clauses in every contract
subject to Title VI and its related regulations.
City of Port Orchard
Sidney Avenue Sewer Repair Project PW2021-008
Contract C036-21
Therefore, during the performance of this Contract, the Contractor, for itself, its assignees, and successors
in interest agrees as follows:
1. Compliance with Regulations: The Contractor will comply with the Acts and the Regulations
relative to Nondiscrimination in Federally -assisted programs of the U.S. Department of
Transportation, Federal Highway Administration (FHWA), as they may be amended from time to
time, which are herein incorporated by reference and made a part of this Contract.
2. Nondiscrimination: The Contractor will not discriminate on the grounds of race, color, national
origin, sex, age, disability, income -level, or LEP in the selection and retention of subcontractors,
including procurements of materials and leases of equipment. The Contractor will not participate
directly or indirectly in the discrimination prohibited by the Acts and the Regulations as set forth in
Appendix A, attached hereto and incorporated herein by this reference, including employment
practices when this Contract covers any activity, project, or program set forth in Appendix B of 49
C.F.R. part 21.
Defective or Unauthorized Work. The City reserves the right to withhold payment from the
Contractor for any defective or unauthorized work. Defective or unauthorized work includes, without
limitation: work and materials that do not conform to the requirements of this Agreement, and extra
work and materials furnished without the City's written approval. If the Contractor refuses or is unable,
for any reason (including but not limited to termination for cause), to satisfactorily complete any portion
of the work, the City may complete the work by contract or otherwise, and the Contractor shall be liable
to the City for any additional costs incurred by the City. "Additional costs" means all reasonable costs
incurred by the City including engineering and other professional services, in excess of the contract
price under this Agreement. The City further reserves the right to deduct the cost to complete the work,
including any additional costs, from any amounts due or to become due to the Contractor.
4. Final Payment; Waiver of Claim. THE CONTRACTOR'S ACCEPTANCE OF FINAL PAYMENT
SHALL CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND
PROPERLY MADE AND IDENTIFIED BY THE CONTRACTOR AS UNSETTLED AT THE TIME
REQUEST FOR FINAL PAYMENT IS MADE,
5, Termination. This City may terminate this Agreement for default upon the occurrence of any one or
more of the following events:
5.1. The Contractor's refusal or failure to supply a sufficient number of properly skilled workers or
proper materials for completion of the work.
5.2. The Contractor's failure to complete the work within the time specified in this Agreement.
5.3. The Contractor's failure to make full and prompt payment to subcontractors or for material or
labor.
5.4. The Contractor's failure to comply with any federal, state, or local laws, regulations, rules, or
ordinances.
5.5. The Contractor's filing for bankruptcy or being adjudged bankrupt.
If the City terminates this Agreement for good cause, the Contractor shall not receive any further monies
due under this Agreement until the Contract work is completed.
City of Port Orchard
Sidney Avenue Sewer Repair Project PW2021-008
Contract C036-21
6. Independent Contractor. The Contractor is and shall be at all times during the term of this Agreement
an independent contractor.
7. Indemnification.
7.1. The Contractor shall defend, indemnify and hold the City, its officers, officials, employees, agents
and volunteers harmless from any and all claims, injuries, damages, losses or suits, including
attorney fees, arising out of or resulting from the acts, errors or omissions of the Contractor, its
officers, officials, employees and agents in performance of this Agreement, except for injuries and
damages caused by the sole negligence of the City.
7.2. Should a court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Contractor and
the City, its officers, officials, employees, and volunteers, the Contractor's liability, including the
duty and cost to defend, hereunder shall be only to the extent of the Contractor's negligence.
7.3. It is further specifically and expressly understood that the indemnification provided herein
constitutes the Contractor's waiver of immunity under Industrial Insurance, Title 51 RCW, solely
for the purposes of this indemnification. This waiver has been mutually negotiated by the parties.
7.4. The provisions of this section shall survive the expiration or termination of this Agreement.
8. Insurance.
8.1. The Contractor shall procure and maintain for the duration of this Agreement, the following
insurance against claims for injuries to persons or damage to property arising out of or in
connection with the performance of work under this Agreement by the Contractor, its officers,
employees and agents:
8.1.1.Automobile Liability Insurance with limits no less than $1,000,000.00 combined single limit
per accident for bodily injury and property damage.
8.1.2.Commercial General Liability Insurance written on an occurrence basis with limits no less
than $1,000,000.00 combined single limit per occurrence and $2,000,000.00 aggregate for
personal injury, bodily injury and property damage. Coverage shall include, but not be
limited to blanket contractual; products/completed operations; broad form property damage;
explosion, collapse and underground (XCU) if applicable; and employer's liability.
8.2. Before commencing work under this Agreement, the Contractor shall provide to the City a
Certificate of Insurance evidencing the required insurance. City reserves the right to request and
receive a certified copy of all required insurance policies.
8.3. Any payment of deductible or self-insumd retention shall be the sole responsibility of the
Contractor. The City shall be named as an additional insured on the Commercial General Liability
Insurance Policy, with regard to work and services performed by or on behalf of Contractor, and
a copy of the endorsement naming City as an additional insured shall be attached to the Certificate
of Insurance.
8.4. The insurance policies (1) shall state that coverage shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the insurer's liability;
(2) shall be primary insurance with regard to City; and (3) shall state that City will be given 30
days' prior written notice of any cancellation, suspension or material change in coverage.
Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all
solicitations, either by competitive bidding, or negotiation made by the Contractor for work to be
performed under a subcontract, including procurements of materials, or leases of equipment, each
City ofpord ❑rcilard
Sidney Avenue &mer Repair Project PW2021-008
Contract C036-21
potential subcontractor or supplier will be notified by the Contractor of the Contractor's obligations
under this Contract and the Acts and the Regulations relative to Non-discrimination on the grounds of
race, color, national origin, sex, age, disability, income -level, or LEP.
10. Information and Reports: The Contractor will provide all information and reports required by the
Acts, the Regulations and directives issued pursuant thereto and will permit access to its books, records,
accounts, other sources of information, and its facilities as may be determined by the City or the FHWA
to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any
information required of the Contractor is in the exclusive possession of another who fails or refuses to
furnish the information, the Contractor will so certify to the City or the FHWA, as appropriate, and will
set forth what efforts it has made to obtain the information.
11. Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the Non-
discrimination provisions of this Contract, the City will impose such contract sanctions as it or the
FHWA may determine to be appropriate, including, but not limited to:
11.1. withholding payments to the Contractor under the Contract until the Contractor complies;
and/or
11.2. cancelling, terminating, or suspending the Contract, in whole or in part.
12. Incorporation of Provisions: The Contractor will include the provisions of paragraphs one through
six in every subcontract, including procurements of materials and leases of equipment, unless exempt
by the Acts, the Regulations and directives issued pursuant thereto. The Contractor will take action
with respect to any subcontract or procurement as the City or the FHWA may direct as a means of
enforcing such provisions including sanctions for noncompliance. Provided, that if the Contractor
becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such
direction, the Contractor may request the City to enter any litigation to protect the interests of the City.
In addition, the Contractor may request the United States to enter into the litigation to protect the
interests of the United States.
13. Subletting or Assigning Contract. The Contractor shall not assign, transfer, or encumber any rights,
duties or interest accruing from this Agreement without the express prior written consent of the City.
14. Extent of Agreement Modification. This Agreement, together with attachments or addenda,
represents the entire and integrated Agreement between the parties and supersedes all prior
negotiations, representations, or agreements, either written or oral. This Agreement may be amended,
modified or added to only by written instrument properly signed by both parties.
15. Work Performed at Contractor's Risk. The Contractor shall take all precautions necessary and shall
be responsible for the safety of its employees, agents, and subcontractors in the performance of work
under this Agreement. All work shall be done at the Contractor's own risk, and the Contractor shall be
responsible for any loss of or damage to materials, tools, or other articles used or held for use in
connection with the work.
16. Nonwaiver of Breach. The failure of the City to insist upon strict performance of any of the terms and
rights contained in this Agreement, or to exercise any option contained in this Agreement in one or
more instances, shall not be construed to be a waiver or relinquishment of those terms and rights and
such terms and rights shall remain in full force and effect.
City of Port Orchard
Sfdney Avenue -Sewer Repair Project PW2021-008
Contract C036-21
17. Written Notice. All communications regarding this Agreement shall be sent to the parties at the
addresses listed below, unless otherwise notified. Any written notice shall become effective on delivery,
but in any event on 3 calendar days after the date of mailing by registered or certified mail and shall be
deemed sufficiently given if sent to the addressee at the address stated in this Agreement.
Contractor understands that her/his bid response documents, and any contract documents may be subject to
release under the Public Records Act Chapter 42.56 RCW and the City may be required to disclose such
documents upon a request. Contractor acknowledges that s/he has been advised to mark any records
believed to be trade secrets or confidential in nature as "confidential." If records marked as "confidential"
are found to be responsive to the request for records, the City as a courtesy to the Contractor, may elect to
give notice to Contractor of the request so as to allow Contractor to seek a protective order from a Court.
Contractor acknowledges and agrees that any records deemed responsive to a public records request may
be released at the sole discretion of, and without notice by, the City. With this Contract, Contractor is
furnishing a Corporate Surety Bond in the amount of
Liberty Mutual
Three Hundred Fifty-eight Thousand, Three Hundred Fifty-eight and no/100's Dollars ($ 359,359.00 ) with Insurance Company as
Surety, to insure full compliance, execution and performance of this Contract by the Contractor in
accordance with all its terms and provisions.
In the event of litigation, venue shall be within Kitsap County, Washington.
IN WITNESS WHEREOF the parties hereto have caused these presents to be duly executed.
CITY OF PORT ORCHARD
By:
Robert Putaansuu, Mayor
CONTRACTOR Active Construction, Inc.
By:
Title:
David Ceccanti, President
Address: 5110 River Rd E.
Tacoma, WA 98443
ATTEST• e—
Brandy Rinearson, MM , City Clerk
APPROVED AS TO FORM:
City of Port Orchard
Sidney Avenue Seiver Repair Project PW2021-008
Contract C036-21
Charlotte Archer, City Attorney
City of Port Orchard
Sidney Avenue Seiner Repair Project PW2021-008
Contract C036-21
PERFORMANCE AND PAYMENT BOND
CITY OF PORT ORCHARD
SIDNEY AVENUE SEWER REPAIR PROJECT
PW PROJECT NO. 2021-008
Bond to City of Port Orchard, Washington
Bond No. 023217370
We, Active Construction, Inc. ,and Liberty Mutual Insurance Company_
(Principal) (Surety)
a Massachusetts Corporation, and as a surety corporation authorized
to become a surety upon Bonds of Contractors with municipal corporations in Washington State,
are jointly and severally bound to the City of Port Orchard, Washington ("Owner"), in the penal
sum of Three Hundred Fifty-eight Th ousa 0-d— Thre e Hundred Ffty-gight and No1100 Dollars
($358,358.00 _), the payment of which sum, on demand, we bind ourselves and our
successors, heirs, administrators, executors, or personal representatives, as the case may be. This
Performance Bond is provided to secure the performance of Principal in connection with a
contract dated_ 612rii 13th , 20211 , between Principal and Owner for a project entitled
Sidney Avenue SeMr EVDair. .-- ("Project") — Public Works Project No. PW2021-008
Contract #036-21
City of Port Orchard
Sidney Avenne Sewer Repair Project PW2021-008
Contract C036-21
("Contract"). The initial penal sum shall equal 100 percent of the Total Bid Price, including all
applicable state sales tax, as specified in the Proposal submitted by Principal.
NOW, THEREFORE, this Performance and Payment Bond shall be satisfied and released only upon
the condition that Principal:
Faithfully performs all provisions of the Contract and changes authorized by Owner in the
manner and within the time specified as may be extended under the Contract;
Pays all laborers, mechanics, subcontractors, lower tier subcontractors, material persons, and
all other persons or agents who supply labor, equipment, or materials to the Project;
Pays the taxes, increases and penalties incurred on the Project under Titles 50, 51 and 82 RCW
on: (A) Projects referred to in RCW 60.28.011(1)(b); and/or (B) Projects for which the bond is
conditioned on the payment of such taxes, increases and penalties.
The surety shall indemnify, defend, and protect the Owner against any claim of direct or indirect
loss resulting from the failure:
Of the Principal (or any of the employees, subcontractors, or lower tier subcontractors of the
Principal) to faithfully perform the Contract, or
Of the Principal (or any subcontractor or lower tier subcontractor of the Principal) to pay all
laborers, mechanics, subcontractors, lower tier subcontractors, material person, or any other
person who provides supplies or provisions for carrying out the work.
The liability of Surety shall be limited to the penal sum of this Performance and Payment Bond.
No change, extension of time, alteration, or addition to the terms of the Contract or to the Work
to be performed under the Contract shall in any way affect Surety's obligation on the
Performance Bond. Surety hereby waives notice of any change, extension of time, alteration, or
addition to the terms of the Contract or the Work, with the exception that Surety shall be notified
if the Contract time is extended by more than twenty percent (20%).
If any modification or change increases the total amount to be paid under the Contract, Surety's
obligation under this Performance and Payment Bond shall automatically increase in a like
Cily of Porl Orchard
Sidney Avenue Sewer Repair Project PW2021-008
Contract C036-21
amount. Any such increase shall not exceed twenty-five percent (25%) of the original amount of
the Performance and Payment Bond without the prior written consent of Surety.
This Performance and Payment Bond shall be governed and construed by the laws of the State
of Washington, and venue shall be in Kitsap County, Washington.
IN WITNESS WHEREOF, the parties have executed this instrument in two (2) identical
counterparts this 13th day of April 20 21 .
Active Construction. Inc.
Principal
Signature of Authorized Official
Printed Name and Title
Name and address of local office of
Agent and/or Surety Company:
LibertV Mutual Insurance Company
r ty
Signature of Authorized Official
By Holli Albers, Attorney -in -Fact
Attorney in Fact (Attach Power of Attorney)
Pro el Insurance
1201 Pacific Avenue. Suite 1000
Tacoma. WA 98402
Surety companies executing bonds must appear on the current Authorized Insurance List in the
State of Washington per Section 1-02.7 of the Standard Specifications.
ACKNOWLEDGEMENT
Corporation, Partnership, or Individual
STATE OF ' tc;rl 7
)ss.
COUNTY OF c _ )
On this day of , 20 It , before me, the undersigned, a Notary Public in and
for the State of Washington, duly commissioned and sworn, personally
City of Port Orchard
Sidney Avenue Sewer Repair Project PW2021-008
Contract C036-21
appeared bay Ceacahi:i , to me known to be the (check one of the following
boxes);
of Acy ve the
corporation,
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partnership,
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that executed the foregoing instrument to be the free and voluntary act and deed of said L"Y
corporation, 0 partt ership, n individual for the uses and purposes therein mentioned, and on
oath stated that She nshe was authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the d and dd yefi b vie written.
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NOTARY PUBLIC,
in and for the State of Washington
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SURETY ACKNOWLEDGEMENT
STATE OF WASHINGTON
)ss.
00, of Port Orchard
Sidney Arenne Sewer Repair Project PW2021-008
Contacl C036-21
COUNTY OF PIERCE )
On this 13th day of April , 2021 before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally
appeared Holli Albers to me known to be the Attorney -in -Fact
of Liberty Mutual Insurance Company the corporation that executed the foregoing
instrument, and acknowledged the said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath stated that 0 he 9
she was authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the day
and year first above written.
f�
Print or type name Karen C. Swanson,
Notary Public
NOTARY PUBLIC,
in and for the State of Washington
Residing Tacoma. Washington
My Commission expires: 11/20/2021
Notary Seal With Ink Stamp
City of Port Orchard
Sidney Avenge Sewer Repair Project PW2021-008
Contract C036-21
This Power of Attorney limits the acts of those named herein, and they have no authority to
bind the Company except in the manner and to the extent herein stated.
Liberty
Mutual.
SURETY
Liberty Mutual Insurance Company
The Ohio Casualty Insurance Company
West American Insurance Company
POWER OF ATTORNEY
Certificate No: 8205061-023049
KNOWN ALL PERSONS BY THESE PRESENTS: That The Ohio Casualty Insurance Company is a corporation duly organized under the laws of the State of New Hampshire, that
Liberty Mutual Insurance Company is a corporation duly organized under the laws of the State of Massachusetts, and West American Insurance Company is a corporation duly organized
under the laws of the State of Indiana (herein collectively called the "Companies"), pursuant to and by authority herein set forth, does hereby name. Constitute and appoint, Aliceon A.
Kellner, AI ssa J. Lopez. Amelia G. Runill, Anneties M. Rit;hic, Brandon K. Bwih, Brent E.14cilescll, Cartcy Espiritu, Christopher Kinyon, Cynthia L. Jay, Diane M.
1 tardirz , Edward Sims, Eric A. 7iTom crrnan, Erica E, Mode , Heather L. Allen, Hot Ii Albers, Jacob T. Iladdock, Jazues B. Binder, Jamie I., Ma rqucs, Katharine J.
Snider, Kyle J(moPh Howa1, Terric Cunard
all of the city of -Tacoma state of WA each Individually if there be more than one named, its true and lawful attomey-in-fact to make,
execute, seal, acknowledge and deliver, for and an its behalf as surety and as its act and deed, any and all undertakings, bonds, recognizancas and other surety obligations, in pursuance
of these presents and shall be as binding upon the Companies as if they have been duly signed by the president and attested by the secretary of the Companies in their own proper
persons.
IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Companies and the corporate seals of the Companies have been affixed
thereto this 19th day of March , 2021 .
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County of MONTGOMERY
Liberty Mutual Insurance Company
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West American Insurance Company
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David M. Carey, Assistant Secretary
oOn this 19th day of March 2021 before me personally appeared David M. Carey, who acknowledged himself to be the Assistant Secretary of Liberty Mutual Insurance
` to Company, The Ohio Casualty Company, and West American Insurance Company, and that he, as such, being authorized so to do, execute the foregoing instrument for the purposes
> therein contained by signing on behalf of the corporations by himself as a duly authorized officer.
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IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my notarial seal at King of Prussia, Pennsylvania, on the day and year first above written.
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O r,� G� *C�, Y Teresa Pastella, Notary Public
Montgomery County
pr My commission expires March 28, 2026 By
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This Power of Attorney is made and executed pursuant to and by authority of the following By-laws and Authorizations of The Ohio Casualty Insurance Company, Liberty Mutual
0 Insurance Company, and West American Insurance Company which resolutions are now in full force and effect reading as follows:
ARTICLE IV— OFFICERS: Section 12. Power 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 limitation as the Chairman or the
President may prescribe, shall appoint such attorneys -in -fact, as may be necessary to act in behalf of the Corporation to make, execute, seal, acknowledge and deliver as surety
CO C any and all undertakings, bonds, reoognizances and other surety obligations. Such attorneys -in -fact, subject to the limitations set forth in their respective powers of attorney, shall
O have full power to bind the Corporation by their signature and execution of any such instruments and to attach thereto the seal of the Corporation. When so executed, such
z instruments shall be as binding as if signed by the President and attested to by the Secretary. Any power or authority granted to any representative or attomey-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 XIII — Execution of Contracts: Section 5. Surety Bonds and Undertakings.
Any officer of the Company authorized for that purpose in writing by the chairman or the president, and subject to such limitations as the chairman or the president may prescribe,
shall appoint such atoomeys-in-fact, as may be necessary to act in behalf of the Company to make, execute, seal, acknowledge and deliver as surety any and all undertakings,
bonds, recognizances and other surety obligations. Such attorneys -in -fact subject to the limitations set forth in their respective 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 if
signed by the president and attested by the secretary.
Certificate of Designation — The President of the Company, acting pursuant to the Bylaws of the Company, authorizes David M. Carey, Assistant Secretary to appoint such attorneys -in -
fact as may be necessary to act on behalf of the Company to make, execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, reoognizances and other surety
obligations.
Authorization — By unanimous consent of the Company's Board of Directors, the Company consents that facsimile or mechanically reproduced signature of any assistant secretary of the
Company, wherever appearing upon a certified copy of any power of attorney issued by the Company in connection with surety bonds, shall be valid and binding upon the Company with
the same force and effect as though manually affixed.
I, Renee C. Llewellyn, the undersigned, Assistant Secretary, 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 full, true and correct copy of the Power of Attorney executed by said Companies, is in full force and effect and
has not been revoked.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this 13th day of April 2021
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