Improvement Contacts / Maintenance Bond_McDermott Excavating SRF Bid Set 7 Year 1 Copyright 2014
City of Dubuque Consent Items # 9.
ITEM TITLE: Improvement Contacts / Performance, Payment and Maintenance Bond
SUMMARY: McDermott Excavating for the SRF Green Alley Project Bid Set 7 - Year 1
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File
ATTACHMENTS:
Description Type
❑ SRF Green Alley Project Bid Set 7-year 1 Contract Supporting Documentation
PUBLIC IMPROVEMENT CONTRACT h
SECTION 00500
SRF GREEN ALLEY PROJECT
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BID SET 7 - YEAR 1
THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for references
purposes the 22 day of April, 2015 between the City of Dubuque, Iowa, by its City Manager,
through authority conferred upon the City Manager by its City Council (City), and McDermott
Excavating (Contractor).
For and in consideration of the mutual covenants herein contained, the parties hereto
agree as follows:
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CONTRACTOR AGREES:
1. To furnish all material and equipment and to perform all labor necessary for the SRF Green
Alley Project Bid Set 7 –Year 1 (Project).
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2. CONTRACT DOCUMENTS
A. The Contract Documents consist of the following:
1. This Contract Section 00500).
2. Performance, Payment, and Maintenance Bond (Section 00600).
3. Out-of-State Contractor Bond (Section 00610) if needed
4. Other Bonds: F
a. (Bond Name) (pages _to T , inclusive).
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b. (Bond Name) (pages _to _ , inclusive).
c. (Bond Name) (pages _to_ , inclusive).
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5. The Iowa Statewide Urban Design and Specifications (SUDAS) 2015 Edition,
6. CITY OF DUBUQUE Supplemental Specifications 2015 Edition.
7. Other Standard and Supplementary Specifications as listed on the Title Page of
Contract Document Manual
8. Special Provisions included in the project Contract Document Manual F
9. Drawings –Sheet No.A.01 through No.W.09_ or drawings consisting of sheets
bearing the following general title: '
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_SRF Green Alley Project–Various Locations Year 1 Bid Pack 7_
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10. Addenda (numbers —to _ , inclusive).
11. Insurance Provisions and Requirements (Section 00700)
12. Sales Tax Exemption Certificate (Section 00750)
13. Site Condition Information (Section 00775)
14. Construction Schedule and Agreed Cost of Delay (Section 00800)
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16. Erosion Control Certificate (Section 00900)
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17. Consent Decree (Section 01000)
18. Other Project Information (Section 01100)
19. Exhibits to this Contract (enumerated as follows):
a. Contractor's Bid (pages 1 to 2, inclusive).
b. The following documentation must be submitted by Contractor prior to Notice of
Award.
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c. None.
19. The following which may be delivered or issued on or after the Effective Date of the
Agreement:
a. Notice to Proceed (Section 00850).
b. Change Orders (Not attached to this agreement).
20.The Contract Documents may only be amended, modified, or supplemented as
provided in General Conditions.
3. All materials used by the Contractor in the Project must be of the quality required by the
Contract Documents and must be installed in accordance with the Contract Documents.
4. The Contractor must remove any materials rejected by the City as defective or improper, or
any of said work condemned as unsuitable or defective, and the same must be replaced or
redone to the satisfaction of the City at the sole cost and expense of the Contractor.
5. Five percent (5%) of the Contract price will be retained by the City for a period of thirty (30)
days after final completion and acceptance of the Project by the City Council to pay any
claim by any party that may be filed for labor and materials done and furnished in II
connection with the performance of this Contract and for a longer period if such claims are
not adjusted within that thirty (30) day period, as provided in Iowa Code Chapter 573 or
Iowa Code Chapter 26. The City will also retain additional sums to protect itself against any
claim that has been filed against it for damages to persons or property arising through the
prosecution of the work and such sums will be held by the City until such claims have been j
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settled, adjudicated or otherwise disposed of.
6. The Contractor has read and understands the Contract Documents herein referred to and
agrees not to plead misunderstanding or deception related to estimates of quantity,
character, location or other conditions for the Project.
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7. In addition to any warranty provided for in the specifications, the Contractor must also fix
any other defect in any part of the Project, even if the Project has been accepted and fully
paid for by the City. The Contractor's maintenance bond will be security for a period of two
years after the issuance of the Certificate of Substantial Completion.
8. The Contractor must fully complete the Project under this Contract on or before the date s
indicated in the Construction Schedule and Agreed Cost of Delay Section of the Contract
Documents.
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9. INDEMNIFICATION FROM THIRD PARTY CLAIMS. To the fullest extent permitted by law, Ij
City shall defend, indemnify and hold harmless Contractor, its officers and employees, from j
and against all claims, damages, losses and expenses claimed by third parties, but. not
including any claims, damages, losses or expenses of the parties to this Contract, including
but not limited to attorneys' fees, arising out of or resulting from performance of this
Agreement, provided that such claim, damages, loss or expense is attributable to bodily
injury, sickness, disease or death, or injury to or destruction of property, including loss of
use resulting there from, but only to the extent caused in whole or in part by negligent acts
or omissions of City, or anyone directly or indirectly employed by City or anyone for whose
acts City may be liable, regardless of whether or not such claim, damage, loss or expense 1
is caused in part by a party indemnified hereunder.
10. The Contractor herebyrepresents and guarantees that it has not, nor has an other person
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for or in its behalf, directly or indirectly, entered into any arrangement or Contract with any
other Bidder, or with any public officer, whereby it has paid or is to pay any other Bidder or
public officer any sum of money or anything of value whatever in order to obtain this
Contract; and it has not, nor has another person for or in its behalf directly or indirectly,
entered into any Contractor arrangement with any other person, firm, corporation. or
association which tends to or does lessen or destroy free competition in the award of this
Contract and agrees that in case it hereafter be established that such representations or
guarantees, or any of them are false, it will forfeit and pay not less than ten percent (10%)
of the Contract price but in no event less than $2,000.00 (Two Thousand Dollars) to the
City.
11. The surety on the Bond furnished for this Contract must, in addition to all other provisions,
be obligated to the extent provided for by Iowa Code 573.6 relating to this Contract, which
provisions apply to said Bond.
12. The Contractor agrees, and its Bond is surety therefore, that after the Certificate of
Substantial Completion has been issued by the City, it will keep and maintain the Project in
good repair for a period of two (2) years.
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13. The Project must be constructed in strict accordance with the requirements of the laws of
the State of Iowa, and the United States, and ordinances of the City of Dubuque, and in
accordance with the Contract Documents.
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A. All applicable standards, orders, or regulations issued pursuant to the Clean Air Act of
1970 (42 U. S. C. 1958 (H) et. seq.) and the Federal Water Pollution Act (33 U. S. C. III
1368 et. seq.) as amended, Executive Order 11738, and Environmental Protection �I
Agency regulations (40 CFR, Part 15). Contractor must comply with Section 103 and
107 of the Contract Work Hours and Safety Standards Act (40 USC 327-330) and
Department of Labor Regulations (29 CFR, Part 5).
B. The City and the Contractor agree to comply with all provisions of the Davis-Bacon
Federal Prevailing Wage Act, if applicable, and related labor requirements and
regulations and the Federal Wage Determination for this Project. i
C. Equipment or products authorized to be purchased with federal funding awarded for
this Contract must be American-made to the maximum extent feasible, in accordance
with Public Law 103-121, Sections 606(a) and (b).
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CONSENT DECREE P
RELATING TO THE PROJECT
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14. ❑ THIS CONTRACTOR IS PERFORMING WORK FOR THE CITY OF DUBUQUE RELATED TO
THE WATER & RESOURCE RECOVERY CENTER OR THE SANITARY SEWER
COLLECTION SYSTEM. THEREFORE, THE CONSENT DECREE AND THIS SECTION ARE
APPLICABLE.
KNOW 'i
CITY CONTRACTOR V
5X THIS CONTRACTOR IS NOT PERFORMING WORK FOR THE CITY OF DUBUQUE
RELATED TO THE WATER & RESOURCE RECOVERY CENTER OR THE SANITARY
SEWER COLLECTION SYSTEM. THEREFORE THE CONSENT DECREE AND THIS
SECTION ARE NOT APPLICABLE.
The City has entered into a Consent Decree in the case of The United States of America, and the
State of Iowa v. The City of Dubuque, Iowa, Civil Action Number Case 2:11-cv-01011-EMJ, Civil
Action Number 2008V00041, DOJ Case Number 90-5-1-1-09339, United States District Court for the
Northern District of Iowa. The provisions of the Consent Decree apply to and are binding upon the City
and its officers, directors, employees, agents, servants, successors, assigns, and all persons, firms
and corporations under contract with the City to perform the obligations of the Consent Decree.
The City is required to provide a copy of the Consent Decree to any contractor or consultant retained
to perform work required by the Consent Decree. L'
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A copy of the Consent Decree is included in the Contract Documents and can be viewed at
http://www.cityofdubuque.org/DocumentCenter/Home/View/3173. A hard copy is available upon request
at the City's Engineering Department Office.
The City must condition any contract to perform work required under the Consent Decree upon
performance of the work in conformity with the provisions of the Consent Decree.
The Consent Decree also provides that until five (5) years after the termination of the Consent Decree,
the City must retain, and must instruct its contractors and agents to preserve, all non-identical copies
of all documents, reports, data, records, or other information (including documents, records, or other
information in electronic form) in its or its contractors' or agents' possession or control, or that come
into its or its contractors' or agents' possession or control, and that relate in any manner to the City's
performance of its obligations under this Consent Decree, including any underlying research and
analytical data. This information-retention period, upon request by the United States or the State, the
City must provide copies of any documents, reports, analytical data, or other information required to
be maintained under the Consent Decree. At the conclusion of the information-retention period, the
City must notify the United States and the State at least ninety (90) Days prior to the destruction of any
documents, records, or other information subject to such requirements and, upon request by the
United States or the State, the City must deliver any such documents, records, or other information to
the EPA or IDNR.
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THE CITY AGREES:
15. Upon the completion of the Contract, and the acceptance of the Project by the City Council,
and subject to the requirements of law, the City agrees to pay the Contractor as full
compensation for the complete performance of this Contract, the amount determined for
the total work completed at the price(s) stated in the Contractor's Bid Proposal and less
any Agreed Cost of Delay provided for in the Contract Documents.
CONTRACT AMOUNT $ 211,357.38
CITY OF DUBUQUE, IOWA:
City ManajZer's ffice
Department _
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By.
Signature
Michael C. Van Milligen
Printed Name
City Manager
Title
Date
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CONTRACTOR:
Contractor
By: - '
Signature
Printed Name
Title
Date
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=====END OF SECTION 00500=====
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PERFORMANCE, PAYMENT AND MAINTENANCE BOND p!
SECTION 00600 Bond # IAC56439
KNOW ALL BY THESE PRESENTS:
That we, McDermott Excavating, as Principal (hereinafter the "Contractor" or "Principal") and
Merchants Bonding Company (Mutual) Des Moines, IA , as Surety are
held and firmly bound unto the City of Dubuque, Iowa, as Obligee (hereinafter referred to as
"Owner"), and to all persons who may be injured by any breach of any of the conditions of this
Bond in the penal sum of Two hundred eleven thousand, three hundred fifty-seven dollars and
thirty-eight cents ($211,357.38), lawful money of the United States, for the payment of which sum,
well and truly to be made, we bind ourselves, our heirs, legal representatives and assigns, jointly
or severally, firmly by these presents.
The conditions of the above obligations are such that whereas said Contractor entered into a
contract with the Owner, bearing date the 22nd day of April, 2015, (hereinafter the "Contract")
wherein said Contractor undertakes and agrees to construct the following project in accordance with
the Contract Documents, and to faithfully perform all the terms and requirements of said Contract
within the time therein specified, in a good and workmanlike manner, and in accordance with the
Contract Documents. The Contract Documents for SRF GREEN ALLEY PROJECT — BID SET 7 —
YEAR 1 Project detail the following described improvements: j!
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SRF GREEN ALLEY PROJECT
BID SET 7 —YEAR 1
It is expressly understood and agreed by the Contractor and Surety in this Bond that the following
provisions are a part of this Bond and are binding upon said Contractor and Surety, to-wit:
1. PERFORMANCE: The Contractor shall well and faithfully observe, perform, fulfill, and
abide by each and every covenant, condition, and part of said Contract and Contract
Documents, by reference made a part hereof, for the project, and shall indemnify and save
harmless the Owner from all outlay and expense incurred by the Owner by reason of the i!
Contractor's default of failure to perform as required. The Contractor shall also be
responsible for the default or failure to perform as required under the Contract and Contract
Documents by all its subcontractors, suppliers, agents, or employees furnishing materials
or providing labor in the performance of the Contract.
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2. PAYMENT: The Contractor and the Surety on this Bond hereby agreed to pay all just
claims submitted by persons, firms, subcontractors, and corporations furnishing materials
for or performing labor in the performance of the Contract on account of which this Bond is
given, including but not limited to claims for all amounts due for labor, materials, lubricants,
oil, gasoline, repairs on machinery, equipment, and tools, consumed, or used by the G
Contractor or any subcontractor, wherein the same are not satisfied out of the portion of the
contract price the Owner is required to retain until completion of the improvement, but the
Contractor and Surety shall not be liable to said persons, firms, or corporations unless the
claims of said claimants against said portion of the contract price shall have been
established as provided by law. The Contractor and Surety hereby bind themselves to the
:
obligations and conditions set forth in Chapter 573 of the Iowa Code, which by this
reference is made a part hereof as though fully set out herein.
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3. MAINTENANCE: The Contractor and the Surety on this Bond hereby agree, at their own
expense:
A. To remedy any and all defects that may develop in or result from work to be
performed under the Contract Documents within the period of two (2) year(s) from the
date of acceptance of the work under the Contract, by reason of defects in
workmanship, equipment installed, or materials used in construction of said work;
B. To keep all work in continuous good repair; and
C. To pay the Owner's reasonable costs of monitoring and inspection to assure that any
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defects are remedied, and to repay the Owner all outlay and expense incurred as a
result of Contractor's and Surety's failure to remedy any defect as required by this
section.
Contractor's and Surety's Contract herein made extends to defects in workmanship or
materials not discovered or known to the Owner at the time such work was accepted.
4. GENERAL: Every Surety on this Bond shall be deemed and held bound, any contract to the
contrary notwithstanding, to the following provisions:
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A. To consent without notice to any extension of time authorized in approved change
orders to the Contractor in which to perform the Contract;
B. To consent without notice to any change in the Contract or Contract Documents,
authorized in approved change orders which thereby increases the total contract price
and the penal sum of this Bond, provided that all such changes do not, in the
aggregate, involve an increase of more than twenty percent (20%) of the total contract j
price, and that this Bond shall then be released as to such excess increase;
C. To consent without notice that this Bond shall remain in full force and effect until the h'
Contract is completed, whether completed within the specified contract period, within
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an extension thereof, or within a period of time after the contract period has elapsed i
and the liquidated damage penalty is being charged against the Contractor.
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The Contractor and every Surety on the Bond shall be deemed and held bound, any contract to the
contrary notwithstanding, to the following provisions:
D. That no provision of this Bond or of any other contract shall be valid that limits to less
than five (5) years after the acceptance of the work under the Contract the right to sue
on this Bond.
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E. That as used herein, the phrase "all outlay and expense" is not to be limited in any
way, but shall include the actual and reasonable costs and expenses incurred by the q
Owner including interest, benefits, and overhead where applicable. Accordingly, "all
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outlay and expense" would include but not be limited to all contract or employee
expense, all equipment usage or rental, materials, testing, outside experts, attorney's
fees (including overhead expenses of the Owner's staff attorneys), and all costs and
expenses of litigation as they are incurred by the Owner. It is intended the Contractor
and Surety will defend and indemnify the Owner on all claims made against the
Owner on account of Contractor's failure to perform as required in the Contract and
Contract Documents, that all agreements and promises set forth in the Contract and
Contract Documents, in approved change orders, and in this Bond will be fulfilled, and
that the Owner will be fully indemnified so that it will be put into the position it would
have been in had the Contract been performed in the first instance as required.
In the event the Owner incurs any "outlay and expense" in defending itself against any claim as to
which the Contractor or Surety should have provided the defense, or in the enforcement of the
promises given by the Contractor in the Contract, Contract Documents, or approved change
orders, or in the enforcement of the promises given by the Contractor and Surety in this Bond, the
Contractor and Surety agree that they will make the Owner whole for all such outlay and expense,
provided that the Surety's obligation under this Bond shall not exceed one hundred twenty-five
percent (125%) of the penal sum of this Bond.
In the event that any actions or proceedings are initiated regarding this Bond, the parties agree that
the venue thereof shall be Dubuque County, State of Iowa. If legal action is required by the Owner
to enforce the provisions of this Bond or to collect the monetary obligation incurring to the benefit of
the Owner, the Contractor and the Surety agree, jointly, and severally, to pay the Owner all outlay
and expense incurred therefor by the Owner. All rights, powers, and remedies of the Owner
hereunder shall be cumulative and not alternative and shall be in addition to all rights, powers, and
remedies given to the Owner, by law. The Owner may proceed against surety for any amount
guaranteed hereunder whether action is brought against the Contractor or whether Contractor is
joined in any such action(s) or not. '
NOW THEREFORE, the condition of this obligation is such that if said Principal shall faithfully
perform all the promises of the Principal, as set forth and provided in the Contract, in the Contract
Documents, and in this Bond, then this obligation shall be null and void, otherwise it shall remain in
full force and effect. F�
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When a work, term, or phrase is used in this Bond, it shall be interpreted or construed first as
defined in this Bond, the Contract, or the Contract Documents; second, if not defined in the Bond,
Contract, or Contract Documents, it shall be interpreted or construed as defined in applicable
provisions of the Iowa Code; third, if not defined in the Iowa Code, it shall be interpreted or
construed according to its generally accepted meaning in the construction industry; and fourth, if it
has no generally accepted meaning in the construction industry, it shall be interpreted or construed G
according to its common or customary usage.
Failure to specify or particularize shall not exclude terms or provisions not mentioned and shall not
limit liability hereunder. The Contract and Contract Documents are hereby made a part of this
Bond.
Project No. SRF Green Alley Project— Bid Set 7 —Year 1, CIP 7102450
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Witness our hands, in triplicate, this 28th day of Apri 1 , 2015.
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SURE OUNTER GNED®BY:
FORM APPROVED BY:
Signa41en
o Agent
J. A Wallis III Representative for-Owner
Printed Name of Agent
SURETY:
4835 Asbury Road Merchants Bonding Company(Mutual )
Company Address
Surety Co Xa I
Dubuque, IA 52002 m
City,State,Zip Code Byn u "
Sigre Attorney-in-Fact Officer
563-583-5775
Company Telephone Number J. Allen Wallis III
Printed Name of Attorney-in-Fact Officer
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PRINCIPAL: _ 1
Company Name
McDermott Excavating
Contractor
B Y � -l✓ Company Address
Sig Kalure
City,State,Zip Code
A4 401
s!2
Printed Name
Company Telephone Number
Title
NOTE:
1. All signatures on this performance, payment, and maintenance Bond must be original
signatures in ink; copies, facsimile, or electronic signatures will not be accepted.
2. This Bond must be sealed with the Surety's raised, embossing seal. I'
3. The name and signature of the Surety's Attorney-in-Fact/Officer entered on this Bond
must be exactly as listed on the Certificate or Power of Attorney accompanying this
Bond.
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END OF SECTION 00600
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MERCH.ANT�
BONDING COMPANY,
POWER OF ATTORNEY
Know All Persons By These Presents,that MERCHANTS BONDING COMPANY(MUTUAL)and MERCHANTS NATIONAL BONDING,
INC., both being corporations duly organized under the laws of the State of Iowa(herein collectively called the"Companies"),
and that the Companies do hereby make,constitute and appoint,individually,
Fred J Kunnert; J Allen Wallis III
of Dubuque and State of Iowa their true and lawful Attorney-in-Fact,with full power
and authority hereby conferred in their name, place and stead, to sign, execute, acknowledge and deliver in their behalf as surety
any and all bonds, undertakings, recognizances or other written obligations in the nature thereof, subject to the limitation that any
such instrument shall not exceed the amount of:
THREE MILLION($3,000,000.00)DOLLARS
and to bind the Companies thereby as fully and to the same extent as if such bond or undertaking was signed by the duly
authorized officers of the Companies,and all the acts of said Attorney-in-Fact, pursuant to the authority herein given, are
hereby ratified and confirmed.
This Power-of-Attorney is made and executed pursuant to and by authority of the following By-Laws adopted by the Board of
Directors of the Merchants Bonding Company(Mutual)on April 23,2011 and adopted by the Board of Directors of Merchants National
Bonding, Inc.,on October 24,2011.
"The President,Secretary,Treasurer,or any Assistant Treasurer or any Assistant Secretary or any Vice President shall have
power and authority to appoint Attorneys-in-Fact,and to authorize them to execute on behalf of the Company,and attach the
seal of the Company thereto,bonds and undertakings,recognizances,contracts of indemnity and other writings obligatory in
the nature thereof.
The signature of any authorized officer and the seal of the Company may be affixed by facsimile or electronic transmission to
any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond,undertaking,recognizance,
or other suretyship obligations of the Company, and such signature and seal when so used shall have the same force and
effect as though manually fixed."
In Witness Whereof,the Companies have caused this instrument to be signed and sealed this 13th day of August , 2014.
y•`'�yt." � �:� ''; •O�`o`Q�.. .a�lo•. MERCHANTS BONDING COMPANY(MUTUAL)
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�`"O '�4j'•,C) 04 O 94 9y' MERCHANTS NATIONAL BONDING,INC.
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1933By
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STATE OF IOWA
COUNTY OF POLK ss. President
On this 13thday of August . 2014,before me appeared Larry Taylor,to me personally known,who being by me duly sworn did
say that he is President of the MERCHANTS BONDING COMPANY(MUTUAL)and MERCHANTS NATIONAL BONDING,INC.;and
that the seals affixed to the foregoing instrument is the Corporate Seals of the Companies;and that the said instrument was signed and
sealed in behalf of the Companies by authority of their respective Boards of Directors.
In Testimony Whereof, I have hereunto set my hand and affixed my Official Seal at the City of Des Moines, Iowa,the day and year
first above written.
�eRlA�s WENDY WOODY
oq Commission Number 784654
Z a;'�1ata r- ii
My Commission Expires Ell
*. � June 20, 2017
Notary Public,Polk County,Iowa
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STATE OF IOWA
COUNTY OF POLK ss.
I, William Warner,Jr.,Secretary of the MERCHANTS BONDING COMPANY(MUTUAL)and MERCHANTS NATIONAL BONDING,INC.,
do hereby certify that the above and foregoing is a true and correct copy of the POWER-OF-ATTORNEY executed by said Companies,
which is still in full force and effect and has not been amended or revoked.
In Witness Whereof,I have hereunto set my hand and affixed the seal of the Companies on
this Gja28try, April 11,,2,al,5 .,....,,•
0" 1104-4
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1933 c' Secretary
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POA 0014 (7/14) o
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