Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
DEMARCO ROOFING, INC.,
Plaintiff, Case No.: 13-CV-004984
v. Judge: Patrick E. Sheeran
ROBERTSON CONSTRUCTION
SERVICES, INC., ef al.,
Defendants.
MOTION TO DISMISS AND
MEMORANDUM IN OPPOSITION TO INTERPLEADER OF FUNDS
OF DEFENDANT, WHITEHALL CITY SCHOOL DISTRICT
Defendant, Board of Education of the Whitehall City School District (the “District’”),
hereby moves the Court to dismiss the claims asserted against it by Plaintiff, pursuant to Civil
Rule 12(B)(6) and to deny Plaintiff's Motion for Interpleader of Funds. As the attached
Memorandum establishes, the District is entitled to judgment as a matter of law.
Respectfully submitted,
BRICKER & ECKLER LLP
By: /s/Laura J. Bowman
Christopher L. McCloskey (0072361)
emecloskey@bricker.com
Desmond J. Cullimore (0087610)
deullimore@bricker.com
Laura J. Bowman (0089154)
lbowman@bricker.com
100 South Third Street
Columbus, OH 43215-4291
Telephone: (614) 227-2300
Facsimile: (614) 227-2390
Attorneys for Defendant, Board of Education of the
Whitehall City School District
6340543v2Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
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MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AND
IN OPPOSITION TO INTERPLEADER OF FUNDS
1. INTRODUCTION
A subcontractor, DeMarco Roofing, Inc. (“DeMarco”), filed this action against the
District to foreclose on mechanic’s liens on a public construction project. The District, however,
is not the Owner of the public construction project; and, in any event, the mechanic’s liens have
been bonded off, rendering the liens void.
IL. FACTUAL BACKGROUND AND DISCUSSION
The public construction project at issue in this action is the Whitehall City School
District’s Beechwood and Etna Elementary Schools project (the “Project”). Defendant,
Robertson Construction Services Inc. (“Robertson”), entered into a contract with the Owner to
perform the work on the Project (the “Contract”). A copy of the Contract is attached hereto as
Exhibit A. As can be seen in the Contract, the Owner of the project is the “State of Ohio,
through the President and Treasurer of the Whitehall City School District Board.” Plaintiff,
DeMarco, was a subcontractor of Robertson and alleges that it was not paid for part or all of its
work on the Project. DeMarco filed two mechanic’s liens to secure payment. Robertson,
however, has since bonded the liens off in accordance with R.C. § 1311.311. See Exhibit B. As
aresult, the liens are void and the bonds stand in the liens’ place as security for the claims.
DeMarco named the District as a party to this case as a stakeholder of the funds withheld
in accordance with the mechanic’s liens. But the liens were rendered void when the bonds were
posted by Robertson. As a result, the District is no longer a stakeholder. Instead, the bonding
company is now the stakeholder, and no such claim can stand against the District. See R.C.
1311.311. Accordingly, the District respectfully requests the Court to dismiss DeMarco’s
Complaint against the District.
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The District has attempted to obtain the District’s dismissal from this case through extra-
judicial means, but DeMarco has failed to dismiss the District. See Exhibit C.
Further, this project is sponsored by the former Ohio School Facilities Commission, now
the Ohio Facilities Construction Commission (“OFCC”), and, as such, the Owner is statutorily
mandated to be the State of Ohio. See R.C. § 3318.10 (“Any contract made under this section
shall be made in the name of the state and executed on its behalf by the president and treasurer of
the school district board.”). The case law is clear that the local school district board is not the
owner of an OFCC project and is not a proper party to a case against the “Owner” of an OFCC
project. See Ingle-Barr, Inc. v. Scioto Valley Local School District Board, 2011 Ohio 2353, *P9
(“We, however, find nothing in the evidentiary materials to contradict the fact that the contract is
between Ingle-Barr and the State of Ohio.... Although Scioto's name does appear on the
documents, it is in the capacity of an agent binding the State of Ohio.”). As a result, Plaintiffs
claim fails as a matter of law, and the District respectfully requests the Court to dismiss
DeMarco’s Complaint against the District.
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U1. CONCLUSION
Based on the foregoing, Defendant, Board of Education of the Whitehall City School
District, opposes the Plaintiff's Motion for Interpleader of Funds and respectfully requests the
Court to dismiss the claims against it contained in Plaintiff's Complaint.
Respectfully submitted,
BRICKER & ECKLER LLP
By:
6340543v2
/s/Laura J. Bowman
Christopher L. McCloskey (0072361)
emecloskey@bricker.com
Desmond J. Cullimore (0087610)
deullimore@bricker.com
Laura J. Bowman (0089154)
lbowman@bricker.com
100 South Third Street
Columbus, OH 43215-4291
Telephone: (614) 227-2300
Facsimile: (614) 227-2390
Attorneys for Defendant, Board of Education of the
Whitehall City School DistrictFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
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CERTIFICATE OF SERVICE
I hereby certify that on this 30" day of May 2013 a true copy of the foregoing MOTION
TO DISMISS AND MEMORANDUM IN OPPOSITION TO INTERPLEADER OF FUNDS
OF DEFENDANT, WHITEHALL CITY SCHOOL DISTRICT was sent by the Franklin County
Clerk of Courts via electronic delivery upon the following:
Jeffrey B. Sams
Law Office of Jeffrey B Sams
Suite 140
10400 Blacklick Eastern Rd.
Pickerington, Ohio 43147
(Attorney for Plaintiff)
/s/Laura J. Bowman
Laura J. Bowman
63405432 5Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
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State of Ohio _ cnn 0
Ohio School Facilities Commission *
- CONTRACT FORM -
THE CONTRACT, evidenced by this Contract Form, is made and entered into by and between:
Robertson Construction Services, Inc.
(the "Contractor") and the State of Ohio (the "State"), through the President and Treasurer of the
Whitehall City School District Board (the “School District Board”) on the date executed by the School
District Board.
In consideration of the mutual promises herein contained, the School District Board and Contractor
agree as set forth below:
ARTICLE 1
1,1 The Contractor shall perform the entire Work described in the Contract Documents and reasonably
inferable as necessary to produce the results intended by the Contract Documents, for:
General Trades Package, Masonry Package & Sitework Package
Whitehall City Schools Ema Road Elementary & Beechwood Elementary Schools
Whitehall, Ohio
ARTICLE 2
2.1 The School District Board shall pay the Contractor for the performance of the Contract, subject
to additions and deductions as provided in the Contract Documents, the amount of
$11,232,770.00 (the "Contract Sum"), based upon the Bid Form, dated December 23, 2010
submitted by the Contractor and comprised of the following:
$11,232,770.00
2.2 The School District Board shall pay the Contractor upon receiving Applications for Payment
submitted by the Contractor and approved by the School District Board and the Commission as
provided in the Contract Documents.
ARTICLE 3
3.1 The Contractor shall diligently prosecute and complete all Work such that Final Acceptance
occurs by June 14, 2012, unless an extension of time is granted by the School District Board and
the Commission in accordance with the Contract Documents. The period established in this
paragraph is referred to as the Contract Time.
EXHIBIT
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3.2
3.3
3.4
3.5
4]
42
43
44
The Contractor shall perform and complete all Work under the Contract within the established
Contract Time, and each applicable portion of the Work shall be completed upon its respective
Milestone date, unless the Contractor timely requests, and the School District Board and the
Commission grant, an extension of time in accordance with the Contract Documents,
The Contractor’s failure to complete al] Work within the period of time specified, or failure to
have the applicable portion of.the Work completed upon any Milestone date, shall entitle the
School District Board and the Commission to retain or recover from the Contractor, as
Liquidated Damages, and not as a penalty, the applicable amount set forth in the following table
for each and every day thereafter until Contract Completion or the date of completion of the
applicable portion of the Work, unless the Contractor timely requests, and the Schoo! District
Board and the Commission grant, an extension of time in accordance with the Contract
Documents.
Contract Amount Dollars Per Day
$1 to $50,000 $150
More than $50,000 to $150,000 $250
More than $150,000 to $500,000 $500
More than $500,000 to $2,000,000 $1,000
More than $2,000,000 to $5,000,000 $2,000
More than $5,000,000 to $10,000,000 $2,500
More than $10,000,000 $3,000
The amount of Liquidated Damages is agreed upon by and between the Contractor and the
School District Board and the Commission because of the impracticality and extreme difficulty
of ascertaining the actual amount of damage the State would sustain.
The School District Board’s and the Commission’s right to recover Liquidated Damages does
not preclude any right of recovery for actual damages.
ARTICLE 4
The Contract Documents embody the entire understanding of the parties and form the basis of
the Contract between the School District Board and the Contractor. The Contract Documents are
incorporated by reference into this Contract Form as if fully rewritten herein,
The Contract and any modifications, amendments or alterations thereto shall be governed,
construed and enforced by and under the laws of the State of Ohio.
If any term or provision of the Contract, or the application thereof to any Person or circumstance,
is finally determined, to be invalid or unenforceable by a court of competent jurisdiction, the
remainder of the Contract or the application of such term or provision to other Persons or
circumstances, shall not be affected thereby, and each term and provision of the Contract shall be
valid and enforced to the fullest extent permitted by law.
The Contract shall be binding on the Contractor, the School District Board and the Commission,
their successors and assigns, in respect to all covenants and obligations contained in the Contract
K-2
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5.1
5.2
61
71
7.2,
8.1
91
Documents, but the Contractor may not assign the Contract without the prior written consent of
the School District Board.
ARTICLE 5
It is expressly understood by the Contractor that none of the rights, duties and obligation
described in the Contract Documents shall be valid or enforceable unless the School District
Board Treasurer first certifies there is a balance sufficient to pay the obligations set forth in the
Contract.
The Contract shall become binding and effective upon execution by the School District Board
and approval by the Commission.
ARTICLE 6
This Contract Form has been executed in several counterparts, each of which shall constitute a
complete original Contract Form which may be introduced in evidence or used for any other
purpose without production of any other counterparts,
ARTICLE 7
The Contractor represents and warrants that it is familiar with all applicable ethics law
requirements, including without limitation, ORC Sections 102.04 and 3517.13, and certifies that
it is in compliance with, and will continue to adhere to, such requirements.
Jn accordance with Executive Order 2007-018, the Contractor, by signature on this document,
certifies that it: (1) has reviewed and understands Executive Order 2007-018, (2) has reviewed
and understands the Ohio ethics and conflict of interest laws, and (3) will take no action
inconsistent with those laws and this order. The Contractor understands that failure to comply
with Executive Order 2007-015 is, in itself, grounds for termination of this contract and may
result in the loss of other contracts with the State of Ohio.
ARTICLE 8
The Contractor represents and warrants that it is not subject to an “unresolved” finding for
recovery under ORC Section 9.24. If this representation and warranty is found to be false, the
Contract is void, and the Contractor shall immediately repay to the Owner any funds paid under
this Contract.
ARTICLE 9
The Contractor represents and warrants that it has not provided any material assistance, as that
term is defined in ORC Section 2909.33(C), to an organization that is identified by, and included
on, the United States Department of State Terrorist Exclusion List and that it has truthfully
answered “no” to every question on the “Declaration Regarding Material Assistance/Non-
assistance to a Terrorist Organization (““DMA”).” The Contractor further represents and
warrants that it has registered with the Ohio Business Gateway to file for DMA pre-certification
and has provided, or shall provide, its DMA to the Commission prior to execution of this
Contract Form. If these representations and warranties are found to be false, the Contract is void
and the Contractor shall immediately repay to the Owner any funds paid under this Contract.
K3
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IN WITNESS WHEREOF, the parties hereto have executed this Contract.
CONTRACTOR
Rovecdson CGme dn Seevrces Tees
(Company Name)
noi Sing We. Roloerteon | ceesden
(Print Name & Title) |
By: L QE W
(Authorized Signature)
Date: Sones, Bo, dow
STATE OF OHIO, BY AND TP ROUGH SCHOOL DISTRICT BOARD
Me ON (Lerner
School District Board President
Mit hew SF. A one
(Print Name) ~
(
\ = i zal
School District s Treasurer
Mey Ned
(Print Name)
APPROVAL BY:
SECTION 3318.10, ORC
OHIO SCHOOL FACILI: e COMMISSION
CELIA IKO
Eric Bode
Interim Executive Director
rs
Date: peo 7 Zeit
Date: wal ZoW
K-4 OSFC
September 2008Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
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BOND No, 9105474
MECHANIC'S LIEN RELEASE BOND
KNOW ALL MEN BY THESE PRESENTS:
Thatwe, Robertson Construction Services, Inc. (name of
principal) and TOE LITY and"Deposit Company or Max Yame oy surety),
organized under the laws of the state of Maryland and authorized
to transact surety business in the stateof_Ohio _as Surety, are held firmly bound unto
DeMarco Roofing, Inc. (name of obligee) to do
business as Roofing Contractor (name), hereinafter known as
Claimant in the sum of ***EYtpousend, one, bungred. 55 129.75) Dollars lawful money of the
United States of America for the payment of which well and truly to be made we bind ourselves,
our heirs, legal representatives, successors and assigns, jointly and severally firmly by these
presents:
Whereas, the Principal entered into a contract with Claimant under which Claimant agreed
provide labor/work and material for roof at Etna Elementary School
(state terms of contract);
Whereas, Claimant has filed a mechanic's lien in the amount of
Twenty Thousand Eighty-Six Dollars and 50/100(_$20,086.50_) against that property as security for
alleged labor and materials in comection with Etna Elementary School
(nature of claimant's job) and that claim was recorded at Book (or Reel)
=
Page (or image) Official Records of _ Franklin County,
Ohio ;
Whereas, the principal disputes the correctness of this claim; and
Whereas, that lien is released in accordance with Section _1311.311 of the
Civil Code of the State of___ Ohio
Now, therefore, if the principal shall pay or cause to be paid any sum which the Claimant may
recover on the claim together with the Claimant's cost of suit in the action in the event of
recovery of the suit, then this obligation shall be, voided; otherwise if shall remain in full force
and effect.
Executed this 24 day of__January ,_ 2013.
SURETY PRINCIPAL
Fidelity and Deposit
Company of Maryland Robertson Congtruction Services, Inc.
5 :
. . 1 ; f)
By: Aduta Tit th clr Ag By: CA li
Laura M. Batchelder
Attorney-in-Fact EXHIBIT
1B
__
CGB26050ZZ0409f S-7052 (09/06)0B175
regankiin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
ZURICH AMERICAN INSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New
York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Maryland, and the FIDELITY
AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by
THOMAS 0. MCCLELLEN, Vice President, in pursuance of authority granted by Article V, Section 8, of the By-Laws of said
Companies, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby
nominate, constitute, and appoint Gerald A. KERNAN, Chery! CRAMER, Laura BATCHELDER, Thomas J. LITMAN and Steven D.
WILLIS, all of Powell, Ohio, EACH its true and lawful agent and Attorney-in-Fact, to make, execute, seal and deliver, for, and on its
behalf as surety, and as its act and deed: any and all bonds and undertakings, and the execution of such bonds or undertakings in pursuance
of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and purposes, as if they had been duly executed
and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York, New
York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings
Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings
Mills, Maryland, in their own proper persons.
The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section 8, of
the By-Laws of said Companies, and is now in force.
IN WITNESS WHEREOF, the said Vice-President has hereunto subscribed his/her names and affixed the Corporate Seals of the said
ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 25th day of June, A.D. 2012.
ATTEST:
ZURICH AMERICAN INSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
oe
nos
5,
S
~ Civ 2. (perf
Assistant Secretary Vice President
Eric D. Barnes Thomas O. McClellen
State of Maryland
City of Baltimore
On this 25th day of June, A.D. 2012, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, THOMAS O.
MCCLELLEN, Vice President, and ERIC D. BARNES, Assistant Secretary, of the Companies, to me personally known to be the individuals and officers
described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly swom, deposeth and saith, that
he/she is the said officer of the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that
the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said
Corporations.
IN TESTIMONY WHEREOF, | have hereunto set my hand and affixed my Official Seal the day and year first above written.
Constance A. Dunn, Notary Public
My Commission Expires: July 14, 2015
POA-F 142-0013C0B175
_ regenkiin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
EXTRACT FROM BY-LAWS OF THE COMPANIES
"Article V, Section 8, Attorneys-in-Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President
may, by written instrument under the attested corporate seal, appoint attorneys-in-fact with authority to execute bonds, policies,
recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such
attomey-in-fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any
time."
CERTIFICATE
I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN
CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the
foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that Article V, Section 8, of
the By-Laws of the Companies is still in force.
This Power of Attomey and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998.
RESOLVED: “That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary
and the Seal of the Company may be affixed by facsimile on any Power of Attomey...Any such Power or any certificate thereof bearing such
facsimile signature and seal shall be valid and binding on the Company."
This Power of Attomey and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the Sth day of
May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a
meeting duly called and held on the 10th day of May, 1990.
RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature
of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a
certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect
as though manually affixed.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies,
this 24 da: of_January 2013.
Geoffrey Delisio, Vice PresidentFranklin C ji = : -
OB175 - regan in County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
BOND No. 9105475
MECHANIC'S LIEN RELEASE BOND
KNOW ALL MEN BY THESE PRESENTS:
Thatwe, Robertson Construction Services, Inc. (name of
principal) ani y qi ‘surety),
organized under the laws of the state of Maryland and authorized
to transact surety business in the state of Ohio as Surety, are held firmly bound unto
DeMarco Roofing, Inc. (name of obligee) to do
business as Roofing Contractor (name), hereinafter known as
Claimant in the sum of 229hty four thousand, nine-hundred « «s) Dollars lawful money of the
United States of America for the payment of which well and truly to be made we bind ourselves,
our heirs, legal representatives, successors and assigns, jointly and severally firmly by these
presents:
Whereas, the Principal entered into a contract with Claimant under which Claimant agreed
provide labor/work and material for roof at Beechwood Elementary
(state terms of contract);
Whereas, Claimant has filed a mechanic's lien in the amount of
Fifty-six thousand Six Hundred Eleven and 10/100(_$56,611.10_) against that property as security for
alleged labor and materials in connection with Beechwood Elementary
(nature of claimant's job) and that claim was recorded at Book (or Reel)
Page (or image) = Official Records of _Fxanklin County,
Ohio :
Whereas, the principal disputes the correctness of this claim; and
Whereas, that lien is released in accordance with Section 1311.311 of the
Civil Code of the State of___Ohio ;
Now, therefore, if the principal shall pay or cause to be paid any sum which the Claimant may
recover on the claim together with the Claimant's cost of suit in the action in the event of
recovery of the suit, then this obligation shall be, voided; otherwise if shall remain in full force
and effect.
Executed this 24 dayof_January ,_2013
PRINCIPAL
SURETY.
Fidelity and Deposit
Company of Maryland Robertson Construction Services, Inc.
By fut ii hers Ades Z By: Mh h A
“Laura M. Batchelder
Attorney-in-Fact
CGB26050ZZ0409f S-7052 (09/06)0B175
re gankiin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
ZURICH AMERICAN INSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New
York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Maryland, and the FIDELITY
AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by
THOMAS O. MCCLELLEN, Vice President, in pursuance of authority granted by Article V, Section 8, of the By-Laws of said
Companies, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby
nominate, constitute, and appoint Gerald A. KERNAN, Cheryl CRAMER, Laura BATCHELDER, Thomas J. LITMAN and Steven D.
WILLIS, all of Powell, Ohio, EACH its true and lawful agent and Attomey-in-Fact, to make, execute, seal and deliver, for, and on its
behalf as surety, and as its act and deed: any and all bonds and undertakings, and the execution of such bonds or undertakings in pursuance
of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and purposes, as if they had been duly executed
and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York, New
York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings
Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings
Mills, Maryland., in their own proper persons.
The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section 8, of
the By-Laws of said Companies, and is now in force.
IN WITNESS WHEREOF, the said Vice-President has hereunto subscribed his/her names and affixed the Corporate Seals of the said
ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 25th day of June, A.D. 2012.
ATTEST:
ZURICH AMERICAN INSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
ie De linrb oo. wlan
Assistant Secretary Vice President
Eric D. Barnes Thomas O. McClellen
State of Maryland
City of Baltimore
On this 25th day of June, A.D. 2012, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, THOMAS 0.
MCCLELLEN, Vice President, and ERIC D. BARNES, Assistant Secretary, of the Companies, to me personally known to be the individuals and officers
described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly swom, deposeth and saith, that
he/she is the said officer of the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that
the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said
Corporations.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written.
Combat. A Osan
Constance A. Dunn, Notary Public
My Commission Expires: July 14, 2015
POA-F 142-0013C0B175
re fankiin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
EXTRACT FROM BY-LAWS OF THE COMPANIES
"Article V, Section 8, Attorneys-in-Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President
may, by written instrument under the attested corporate seal, appoint attomeys-in-fact with authority to execute bonds, policies,
recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such
attorney-in-fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any
time."
CERTIFICATE
I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN
CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the
foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that Article V, Section 8, of
the By-Laws of the Companies is still in force.
This Power of Attomey and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998.
RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary
and the Seal of the Company may be affixed by facsimile on any Power of Attorney...Any such Power or any certificate thereof bearing such
facsimile signature and seal shall be valid and binding on the Company."
This Power of Attomey and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the Sth day of
May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a
meeting duly called and held on the 10th day of May, 1990.
RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature
of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a
certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect
as though manually affixed.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies,
this 24 dayof__January 20.13.
Geoffrey Delisio, Vice PresidentFranklin C i - : +
OB175 - regan in County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984
@
LUA
METAS
Bricker & Eckler
ATTORNEYS AT LAW
May 28, 2013
Jeffrey B. Sams
Law Office of Jeffrey B. Sams
COLUMBUS | CLEVELAND
CINCINNATI-DAYTON Suite 140 .
10400 Blacklick Eastern Rd.
BRICKER & ECKLER LLP Pickerington, Ohio 43147
100 South Third Street
Columbus, OH 43215-4291
MAIN: 614.227.2300 Re: Affidavit for Claim for a Lien on Public Funds
FAX: 614.227.2390 Filed by DeMarco Roofing, Inc.
www.bricker.com against Robertson Construction Services, Inc. on funds held by
info@bricker.com Whitehall City School District on the
Beechwood Elementary School Project
Laura Bowman Claim Amount: $56,611.10; and on the
Etna Road Elementary School Project
Ibowman@bricker i
jan@bricker.com Claim Amount: $20,086.50
Mr. Sams:
Enclosed please find bonds from Robertson Construction to discharge
your client’s above-referenced liens. According to R.C. 1311.311, the above
liens are now void and the District must release the encumbered funds to the
principal contractor, to the extent the funds are available.
Accordingly, please dismiss the District from the pending lawsuit
immediately. If you do not dismiss the District by its filing deadline, the
District will file a motion to dismiss, a copy of which is attached hereto.
This letter should not be construed as a waiver of the District’s
indemnification rights under its contract with Robertson Construction
Services Inc. or the bond.
Regards,
Laura J. Bowman
[075362-144967]
Enclosures
ce: Judyth Dobbert-Meloy, Superintendent, Whitehall City School District
Stephen McAfee, Treasurer, Whitehall City School District
Craig Kertesz, Ruscilli Construction Company
Chris McCloskey, Bricker & Eckler LLP
EXHIBIT
ic
6381933v1 _—_—____
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 0B175 - F77 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO DEMARCO ROOFING, INC., Plaintiff, Case No.: 13-CV-004984 v. Judge: Patrick E. Sheeran ROBERTSON CONSTRUCTION SERVICES, INC., ef al., Defendants. MOTION TO DISMISS AND MEMORANDUM IN OPPOSITION TO INTERPLEADER OF FUNDS OF DEFENDANT, WHITEHALL CITY SCHOOL DISTRICT Defendant, Board of Education of the Whitehall City School District (the “District’”), hereby moves the Court to dismiss the claims asserted against it by Plaintiff, pursuant to Civil Rule 12(B)(6) and to deny Plaintiff's Motion for Interpleader of Funds. As the attached Memorandum establishes, the District is entitled to judgment as a matter of law. Respectfully submitted, BRICKER & ECKLER LLP By: /s/Laura J. Bowman Christopher L. McCloskey (0072361) emecloskey@bricker.com Desmond J. Cullimore (0087610) deullimore@bricker.com Laura J. Bowman (0089154) lbowman@bricker.com 100 South Third Street Columbus, OH 43215-4291 Telephone: (614) 227-2300 Facsimile: (614) 227-2390 Attorneys for Defendant, Board of Education of the Whitehall City School District 6340543v2Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 0B175 - F78 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AND IN OPPOSITION TO INTERPLEADER OF FUNDS 1. INTRODUCTION A subcontractor, DeMarco Roofing, Inc. (“DeMarco”), filed this action against the District to foreclose on mechanic’s liens on a public construction project. The District, however, is not the Owner of the public construction project; and, in any event, the mechanic’s liens have been bonded off, rendering the liens void. IL. FACTUAL BACKGROUND AND DISCUSSION The public construction project at issue in this action is the Whitehall City School District’s Beechwood and Etna Elementary Schools project (the “Project”). Defendant, Robertson Construction Services Inc. (“Robertson”), entered into a contract with the Owner to perform the work on the Project (the “Contract”). A copy of the Contract is attached hereto as Exhibit A. As can be seen in the Contract, the Owner of the project is the “State of Ohio, through the President and Treasurer of the Whitehall City School District Board.” Plaintiff, DeMarco, was a subcontractor of Robertson and alleges that it was not paid for part or all of its work on the Project. DeMarco filed two mechanic’s liens to secure payment. Robertson, however, has since bonded the liens off in accordance with R.C. § 1311.311. See Exhibit B. As aresult, the liens are void and the bonds stand in the liens’ place as security for the claims. DeMarco named the District as a party to this case as a stakeholder of the funds withheld in accordance with the mechanic’s liens. But the liens were rendered void when the bonds were posted by Robertson. As a result, the District is no longer a stakeholder. Instead, the bonding company is now the stakeholder, and no such claim can stand against the District. See R.C. 1311.311. Accordingly, the District respectfully requests the Court to dismiss DeMarco’s Complaint against the District. 6340543v2 2Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 0B175 - F79 The District has attempted to obtain the District’s dismissal from this case through extra- judicial means, but DeMarco has failed to dismiss the District. See Exhibit C. Further, this project is sponsored by the former Ohio School Facilities Commission, now the Ohio Facilities Construction Commission (“OFCC”), and, as such, the Owner is statutorily mandated to be the State of Ohio. See R.C. § 3318.10 (“Any contract made under this section shall be made in the name of the state and executed on its behalf by the president and treasurer of the school district board.”). The case law is clear that the local school district board is not the owner of an OFCC project and is not a proper party to a case against the “Owner” of an OFCC project. See Ingle-Barr, Inc. v. Scioto Valley Local School District Board, 2011 Ohio 2353, *P9 (“We, however, find nothing in the evidentiary materials to contradict the fact that the contract is between Ingle-Barr and the State of Ohio.... Although Scioto's name does appear on the documents, it is in the capacity of an agent binding the State of Ohio.”). As a result, Plaintiffs claim fails as a matter of law, and the District respectfully requests the Court to dismiss DeMarco’s Complaint against the District. 6340543v2 3Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 0B175 - F80 U1. CONCLUSION Based on the foregoing, Defendant, Board of Education of the Whitehall City School District, opposes the Plaintiff's Motion for Interpleader of Funds and respectfully requests the Court to dismiss the claims against it contained in Plaintiff's Complaint. Respectfully submitted, BRICKER & ECKLER LLP By: 6340543v2 /s/Laura J. Bowman Christopher L. McCloskey (0072361) emecloskey@bricker.com Desmond J. Cullimore (0087610) deullimore@bricker.com Laura J. Bowman (0089154) lbowman@bricker.com 100 South Third Street Columbus, OH 43215-4291 Telephone: (614) 227-2300 Facsimile: (614) 227-2390 Attorneys for Defendant, Board of Education of the Whitehall City School DistrictFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 0B175 - F81 CERTIFICATE OF SERVICE I hereby certify that on this 30" day of May 2013 a true copy of the foregoing MOTION TO DISMISS AND MEMORANDUM IN OPPOSITION TO INTERPLEADER OF FUNDS OF DEFENDANT, WHITEHALL CITY SCHOOL DISTRICT was sent by the Franklin County Clerk of Courts via electronic delivery upon the following: Jeffrey B. Sams Law Office of Jeffrey B Sams Suite 140 10400 Blacklick Eastern Rd. Pickerington, Ohio 43147 (Attorney for Plaintiff) /s/Laura J. Bowman Laura J. Bowman 63405432 5Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 0B175 - F82 State of Ohio _ cnn 0 Ohio School Facilities Commission * - CONTRACT FORM - THE CONTRACT, evidenced by this Contract Form, is made and entered into by and between: Robertson Construction Services, Inc. (the "Contractor") and the State of Ohio (the "State"), through the President and Treasurer of the Whitehall City School District Board (the “School District Board”) on the date executed by the School District Board. In consideration of the mutual promises herein contained, the School District Board and Contractor agree as set forth below: ARTICLE 1 1,1 The Contractor shall perform the entire Work described in the Contract Documents and reasonably inferable as necessary to produce the results intended by the Contract Documents, for: General Trades Package, Masonry Package & Sitework Package Whitehall City Schools Ema Road Elementary & Beechwood Elementary Schools Whitehall, Ohio ARTICLE 2 2.1 The School District Board shall pay the Contractor for the performance of the Contract, subject to additions and deductions as provided in the Contract Documents, the amount of $11,232,770.00 (the "Contract Sum"), based upon the Bid Form, dated December 23, 2010 submitted by the Contractor and comprised of the following: $11,232,770.00 2.2 The School District Board shall pay the Contractor upon receiving Applications for Payment submitted by the Contractor and approved by the School District Board and the Commission as provided in the Contract Documents. ARTICLE 3 3.1 The Contractor shall diligently prosecute and complete all Work such that Final Acceptance occurs by June 14, 2012, unless an extension of time is granted by the School District Board and the Commission in accordance with the Contract Documents. The period established in this paragraph is referred to as the Contract Time. EXHIBIT K-1 OSFC } & September 2008Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 0B175 - F83 3.2 3.3 3.4 3.5 4] 42 43 44 The Contractor shall perform and complete all Work under the Contract within the established Contract Time, and each applicable portion of the Work shall be completed upon its respective Milestone date, unless the Contractor timely requests, and the School District Board and the Commission grant, an extension of time in accordance with the Contract Documents, The Contractor’s failure to complete al] Work within the period of time specified, or failure to have the applicable portion of.the Work completed upon any Milestone date, shall entitle the School District Board and the Commission to retain or recover from the Contractor, as Liquidated Damages, and not as a penalty, the applicable amount set forth in the following table for each and every day thereafter until Contract Completion or the date of completion of the applicable portion of the Work, unless the Contractor timely requests, and the Schoo! District Board and the Commission grant, an extension of time in accordance with the Contract Documents. Contract Amount Dollars Per Day $1 to $50,000 $150 More than $50,000 to $150,000 $250 More than $150,000 to $500,000 $500 More than $500,000 to $2,000,000 $1,000 More than $2,000,000 to $5,000,000 $2,000 More than $5,000,000 to $10,000,000 $2,500 More than $10,000,000 $3,000 The amount of Liquidated Damages is agreed upon by and between the Contractor and the School District Board and the Commission because of the impracticality and extreme difficulty of ascertaining the actual amount of damage the State would sustain. The School District Board’s and the Commission’s right to recover Liquidated Damages does not preclude any right of recovery for actual damages. ARTICLE 4 The Contract Documents embody the entire understanding of the parties and form the basis of the Contract between the School District Board and the Contractor. The Contract Documents are incorporated by reference into this Contract Form as if fully rewritten herein, The Contract and any modifications, amendments or alterations thereto shall be governed, construed and enforced by and under the laws of the State of Ohio. If any term or provision of the Contract, or the application thereof to any Person or circumstance, is finally determined, to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Contract or the application of such term or provision to other Persons or circumstances, shall not be affected thereby, and each term and provision of the Contract shall be valid and enforced to the fullest extent permitted by law. The Contract shall be binding on the Contractor, the School District Board and the Commission, their successors and assigns, in respect to all covenants and obligations contained in the Contract K-2 OSFC September 2008Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 0B175 - F84 5.1 5.2 61 71 7.2, 8.1 91 Documents, but the Contractor may not assign the Contract without the prior written consent of the School District Board. ARTICLE 5 It is expressly understood by the Contractor that none of the rights, duties and obligation described in the Contract Documents shall be valid or enforceable unless the School District Board Treasurer first certifies there is a balance sufficient to pay the obligations set forth in the Contract. The Contract shall become binding and effective upon execution by the School District Board and approval by the Commission. ARTICLE 6 This Contract Form has been executed in several counterparts, each of which shall constitute a complete original Contract Form which may be introduced in evidence or used for any other purpose without production of any other counterparts, ARTICLE 7 The Contractor represents and warrants that it is familiar with all applicable ethics law requirements, including without limitation, ORC Sections 102.04 and 3517.13, and certifies that it is in compliance with, and will continue to adhere to, such requirements. Jn accordance with Executive Order 2007-018, the Contractor, by signature on this document, certifies that it: (1) has reviewed and understands Executive Order 2007-018, (2) has reviewed and understands the Ohio ethics and conflict of interest laws, and (3) will take no action inconsistent with those laws and this order. The Contractor understands that failure to comply with Executive Order 2007-015 is, in itself, grounds for termination of this contract and may result in the loss of other contracts with the State of Ohio. ARTICLE 8 The Contractor represents and warrants that it is not subject to an “unresolved” finding for recovery under ORC Section 9.24. If this representation and warranty is found to be false, the Contract is void, and the Contractor shall immediately repay to the Owner any funds paid under this Contract. ARTICLE 9 The Contractor represents and warrants that it has not provided any material assistance, as that term is defined in ORC Section 2909.33(C), to an organization that is identified by, and included on, the United States Department of State Terrorist Exclusion List and that it has truthfully answered “no” to every question on the “Declaration Regarding Material Assistance/Non- assistance to a Terrorist Organization (““DMA”).” The Contractor further represents and warrants that it has registered with the Ohio Business Gateway to file for DMA pre-certification and has provided, or shall provide, its DMA to the Commission prior to execution of this Contract Form. If these representations and warranties are found to be false, the Contract is void and the Contractor shall immediately repay to the Owner any funds paid under this Contract. K3 OSFC September 2008Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 0B175 - F85 IN WITNESS WHEREOF, the parties hereto have executed this Contract. CONTRACTOR Rovecdson CGme dn Seevrces Tees (Company Name) noi Sing We. Roloerteon | ceesden (Print Name & Title) | By: L QE W (Authorized Signature) Date: Sones, Bo, dow STATE OF OHIO, BY AND TP ROUGH SCHOOL DISTRICT BOARD Me ON (Lerner School District Board President Mit hew SF. A one (Print Name) ~ ( \ = i zal School District s Treasurer Mey Ned (Print Name) APPROVAL BY: SECTION 3318.10, ORC OHIO SCHOOL FACILI: e COMMISSION CELIA IKO Eric Bode Interim Executive Director rs Date: peo 7 Zeit Date: wal ZoW K-4 OSFC September 2008Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 0B175 - F86 BOND No, 9105474 MECHANIC'S LIEN RELEASE BOND KNOW ALL MEN BY THESE PRESENTS: Thatwe, Robertson Construction Services, Inc. (name of principal) and TOE LITY and"Deposit Company or Max Yame oy surety), organized under the laws of the state of Maryland and authorized to transact surety business in the stateof_Ohio _as Surety, are held firmly bound unto DeMarco Roofing, Inc. (name of obligee) to do business as Roofing Contractor (name), hereinafter known as Claimant in the sum of ***EYtpousend, one, bungred. 55 129.75) Dollars lawful money of the United States of America for the payment of which well and truly to be made we bind ourselves, our heirs, legal representatives, successors and assigns, jointly and severally firmly by these presents: Whereas, the Principal entered into a contract with Claimant under which Claimant agreed provide labor/work and material for roof at Etna Elementary School (state terms of contract); Whereas, Claimant has filed a mechanic's lien in the amount of Twenty Thousand Eighty-Six Dollars and 50/100(_$20,086.50_) against that property as security for alleged labor and materials in comection with Etna Elementary School (nature of claimant's job) and that claim was recorded at Book (or Reel) = Page (or image) Official Records of _ Franklin County, Ohio ; Whereas, the principal disputes the correctness of this claim; and Whereas, that lien is released in accordance with Section _1311.311 of the Civil Code of the State of___ Ohio Now, therefore, if the principal shall pay or cause to be paid any sum which the Claimant may recover on the claim together with the Claimant's cost of suit in the action in the event of recovery of the suit, then this obligation shall be, voided; otherwise if shall remain in full force and effect. Executed this 24 day of__January ,_ 2013. SURETY PRINCIPAL Fidelity and Deposit Company of Maryland Robertson Congtruction Services, Inc. 5 : . . 1 ; f) By: Aduta Tit th clr Ag By: CA li Laura M. Batchelder Attorney-in-Fact EXHIBIT 1B __ CGB26050ZZ0409f S-7052 (09/06)0B175 regankiin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Maryland, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by THOMAS 0. MCCLELLEN, Vice President, in pursuance of authority granted by Article V, Section 8, of the By-Laws of said Companies, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby nominate, constitute, and appoint Gerald A. KERNAN, Chery! CRAMER, Laura BATCHELDER, Thomas J. LITMAN and Steven D. WILLIS, all of Powell, Ohio, EACH its true and lawful agent and Attorney-in-Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings, and the execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York, New York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills, Maryland, in their own proper persons. The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section 8, of the By-Laws of said Companies, and is now in force. IN WITNESS WHEREOF, the said Vice-President has hereunto subscribed his/her names and affixed the Corporate Seals of the said ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 25th day of June, A.D. 2012. ATTEST: ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND oe nos 5, S ~ Civ 2. (perf Assistant Secretary Vice President Eric D. Barnes Thomas O. McClellen State of Maryland City of Baltimore On this 25th day of June, A.D. 2012, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, THOMAS O. MCCLELLEN, Vice President, and ERIC D. BARNES, Assistant Secretary, of the Companies, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly swom, deposeth and saith, that he/she is the said officer of the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. IN TESTIMONY WHEREOF, | have hereunto set my hand and affixed my Official Seal the day and year first above written. Constance A. Dunn, Notary Public My Commission Expires: July 14, 2015 POA-F 142-0013C0B175 _ regenkiin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 EXTRACT FROM BY-LAWS OF THE COMPANIES "Article V, Section 8, Attorneys-in-Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President may, by written instrument under the attested corporate seal, appoint attorneys-in-fact with authority to execute bonds, policies, recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such attomey-in-fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any time." CERTIFICATE I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that Article V, Section 8, of the By-Laws of the Companies is still in force. This Power of Attomey and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998. RESOLVED: “That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary and the Seal of the Company may be affixed by facsimile on any Power of Attomey...Any such Power or any certificate thereof bearing such facsimile signature and seal shall be valid and binding on the Company." This Power of Attomey and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the Sth day of May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies, this 24 da: of_January 2013. Geoffrey Delisio, Vice PresidentFranklin C ji = : - OB175 - regan in County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 BOND No. 9105475 MECHANIC'S LIEN RELEASE BOND KNOW ALL MEN BY THESE PRESENTS: Thatwe, Robertson Construction Services, Inc. (name of principal) ani y qi ‘surety), organized under the laws of the state of Maryland and authorized to transact surety business in the state of Ohio as Surety, are held firmly bound unto DeMarco Roofing, Inc. (name of obligee) to do business as Roofing Contractor (name), hereinafter known as Claimant in the sum of 229hty four thousand, nine-hundred « «s) Dollars lawful money of the United States of America for the payment of which well and truly to be made we bind ourselves, our heirs, legal representatives, successors and assigns, jointly and severally firmly by these presents: Whereas, the Principal entered into a contract with Claimant under which Claimant agreed provide labor/work and material for roof at Beechwood Elementary (state terms of contract); Whereas, Claimant has filed a mechanic's lien in the amount of Fifty-six thousand Six Hundred Eleven and 10/100(_$56,611.10_) against that property as security for alleged labor and materials in connection with Beechwood Elementary (nature of claimant's job) and that claim was recorded at Book (or Reel) Page (or image) = Official Records of _Fxanklin County, Ohio : Whereas, the principal disputes the correctness of this claim; and Whereas, that lien is released in accordance with Section 1311.311 of the Civil Code of the State of___Ohio ; Now, therefore, if the principal shall pay or cause to be paid any sum which the Claimant may recover on the claim together with the Claimant's cost of suit in the action in the event of recovery of the suit, then this obligation shall be, voided; otherwise if shall remain in full force and effect. Executed this 24 dayof_January ,_2013 PRINCIPAL SURETY. Fidelity and Deposit Company of Maryland Robertson Construction Services, Inc. By fut ii hers Ades Z By: Mh h A “Laura M. Batchelder Attorney-in-Fact CGB26050ZZ0409f S-7052 (09/06)0B175 re gankiin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Maryland, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by THOMAS O. MCCLELLEN, Vice President, in pursuance of authority granted by Article V, Section 8, of the By-Laws of said Companies, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby nominate, constitute, and appoint Gerald A. KERNAN, Cheryl CRAMER, Laura BATCHELDER, Thomas J. LITMAN and Steven D. WILLIS, all of Powell, Ohio, EACH its true and lawful agent and Attomey-in-Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings, and the execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York, New York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills, Maryland., in their own proper persons. The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section 8, of the By-Laws of said Companies, and is now in force. IN WITNESS WHEREOF, the said Vice-President has hereunto subscribed his/her names and affixed the Corporate Seals of the said ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 25th day of June, A.D. 2012. ATTEST: ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND ie De linrb oo. wlan Assistant Secretary Vice President Eric D. Barnes Thomas O. McClellen State of Maryland City of Baltimore On this 25th day of June, A.D. 2012, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, THOMAS 0. MCCLELLEN, Vice President, and ERIC D. BARNES, Assistant Secretary, of the Companies, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly swom, deposeth and saith, that he/she is the said officer of the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. Combat. A Osan Constance A. Dunn, Notary Public My Commission Expires: July 14, 2015 POA-F 142-0013C0B175 re fankiin County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 EXTRACT FROM BY-LAWS OF THE COMPANIES "Article V, Section 8, Attorneys-in-Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President may, by written instrument under the attested corporate seal, appoint attomeys-in-fact with authority to execute bonds, policies, recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such attorney-in-fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any time." CERTIFICATE I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that Article V, Section 8, of the By-Laws of the Companies is still in force. This Power of Attomey and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998. RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary and the Seal of the Company may be affixed by facsimile on any Power of Attorney...Any such Power or any certificate thereof bearing such facsimile signature and seal shall be valid and binding on the Company." This Power of Attomey and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the Sth day of May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies, this 24 dayof__January 20.13. Geoffrey Delisio, Vice PresidentFranklin C i - : + OB175 - regan in County Ohio Clerk of Courts of the Common Pleas- 2013 May 30 4:17 PM-13CV004984 @ LUA METAS Bricker & Eckler ATTORNEYS AT LAW May 28, 2013 Jeffrey B. Sams Law Office of Jeffrey B. Sams COLUMBUS | CLEVELAND CINCINNATI-DAYTON Suite 140 . 10400 Blacklick Eastern Rd. BRICKER & ECKLER LLP Pickerington, Ohio 43147 100 South Third Street Columbus, OH 43215-4291 MAIN: 614.227.2300 Re: Affidavit for Claim for a Lien on Public Funds FAX: 614.227.2390 Filed by DeMarco Roofing, Inc. www.bricker.com against Robertson Construction Services, Inc. on funds held by info@bricker.com Whitehall City School District on the Beechwood Elementary School Project Laura Bowman Claim Amount: $56,611.10; and on the Etna Road Elementary School Project Ibowman@bricker i jan@bricker.com Claim Amount: $20,086.50 Mr. Sams: Enclosed please find bonds from Robertson Construction to discharge your client’s above-referenced liens. According to R.C. 1311.311, the above liens are now void and the District must release the encumbered funds to the principal contractor, to the extent the funds are available. Accordingly, please dismiss the District from the pending lawsuit immediately. If you do not dismiss the District by its filing deadline, the District will file a motion to dismiss, a copy of which is attached hereto. This letter should not be construed as a waiver of the District’s indemnification rights under its contract with Robertson Construction Services Inc. or the bond. Regards, Laura J. Bowman [075362-144967] Enclosures ce: Judyth Dobbert-Meloy, Superintendent, Whitehall City School District Stephen McAfee, Treasurer, Whitehall City School District Craig Kertesz, Ruscilli Construction Company Chris McCloskey, Bricker & Eckler LLP EXHIBIT ic 6381933v1 _—_—____