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Home My WebLink About19970093 Ver 1_More Info Received_20110829BEVERLY EAVES PERDUE GOVERNOR Jy .Q i � f 1 J STATE OF NORTH CAROLINA DEPARTMENT OF TRANSPORTATION August 29 2011 PROJECT # C202402 WBS # 389273 1 TIP # U 2928B COUNTY Lenoir DESCRIPTION Railroad Line from the NCRR to the Global Transpark SUBJECT Response to Letter Dated August 26 2011 Project Suspension Intent to File a Claim Hinkle Contracting Company LLC Attn Mark Sizemore 1930 N Irby Street Florence SC 29501 Mr Sizemore EUGENE A CONTI JR SECRETARY This letter serves as written documentation that the project referenced above was placed under a Project Suspension at 12 00 p in on Monday August 15 2011 for failure to perform the required Erosion Control Maintenance efforts as required in the Department s August 10 2011 letter This Project Suspension is justified under Section 107 13(G) and Section 108 7 of the 2006 Standard Specifications for Roads and Structures During the Project Suspension Hinkle Contracting Company has been permitted to perform Erosion Control Maintenance and Erosion Control Device Installation Slope Stabilization and Construction of Hull Road All other operations were suspended and will remain suspended until the Project Suspension is lifted or approval is granted from the Engineer Prior to August 10 2011 Hinkle Contracting Company was negligent careless and failed to implement and carryout the approved Erosion Control Plan and to control sediment throughout the project with approved erosion control devices and construction methods On August 9 2011 the NCDOT Roadside and Environmental Engineer and the North Carolina Department of Water Quality Representative were present during the Monthly Agency Meeting During the meeting the NCDOT REU Engineer stated that Unless immediate action was taken to control sediment on the project through the use of erosion control devices by implementing the approved Erosion Control Plan an Immediate Corrective Action Violation (ICA) would be issued The NCDWQ Representative stated during the same meeting If any sediment is lost in the stream at the Culvert MAILING ADDRESS NC DEPARTMENT OF TRANSPORTATION DIVISION TWO- GREENVILLE CONSTRUCTION P O Box 1587 GREENVILLE NC 27935 TELEPHONE (252) 830 3495 FAx (252) 830 8556 WEBSITE WWW NCDOT GOV LOCATION 1710 N MEMORIAL DRIVE GREENVILLE NC Project Suspension Intent to File a Claim August 29 2011 Page 2 of 3 #3 site then the project would be Issued an automatic Notice of Violation (NOV) due to the approved Erosion Control Plan not being implemented Issuance of an ICA or NOV would result in an immediate project suspension and civil penalties The Department proactively acted to prevent the issuance of an ICA or NOV through the letter written to Hinkle Contracting Company dated August 10 2011 The current Project Suspension is the second project suspension issued by the Department for Hinkle Contracting Company s continued failure to implement the approved Erosion Control Plan and to control sediment within the project s limits The first Project Suspension for failure to perform grading operations in a continuous manner and by providing adequate ground cover was issued on January 28 2011 This project suspension was lifted on March 2 2011 On August 10 2011 the Department provided Hinkle Contracting Company with nine (9) items to complete to bring the project within compliance with the erosion control plans and to ensure that sediment was being controlled throughout the project Of the nine (9) items provided in the August 10 2011 letter the following remain to be completed 1 Reclaiming material lost from slopes throughout the project 2 Permanent slope establishment of the waste pit 3 Installation of all erosion control measures indicated on the project s Erosion Control Plan including but not limited to all check dams and temporary slope drains Additional measures may be required at locations as directed by the Engineer Upon completion of the three (3) items above to the satisfaction of the Engineer the Project Suspension will be lifted Only those construction activities approved by the Engineer are allowed to be performed until that time Once the Project Suspension is lifted Hinkle Contracting Company will be directed to perform the remaining grade work and land disturbing activities in a continuous manner Erosion Control Measures will be required per plan and at locations as deemed necessary by the Engineer to ensure that sediment is controlled within the project limits The Department acknowledges Hinkle Contracting Company s intent to file a Claim for Additional Compensation for Costs and Impacts associated with Project Suspension Hinkle Contracting Company is directed to follow all provisions with submission of a claim for additional compensation in accordance with Section 104 of the 2006 Standard Specifications for Roads and Structures Should you have any further questions concerning this issue please feel free to contact me Sincerely { Jeremy Stroud P E Assistant Resident Engineer Greenville Construction Office Cc C E Lassiter Jr P E Ron Hancock P E may, Project Suspension Intent to File a Claim August 29 2011 Page 3 of 3 Ed Eatmon P E Warren Walker P E Andy Blankenship P E Garcy Ward DWQ Eric Swanson P E Gordon Wilson Hinkle Contracting Company Pat Grubb Hinkle Contracting Company Doug Steler Hinkle Contracting Company File (d) Each party shall maintain such portion of the Easement that is otherwise located upon its property 3 Nonnayment If any party does not perform its obligations of payment as defined herein the other parties shall have all rights and remedies available at law and equity Furthermore if any party fails to perfonn its obligations of payment (the Defaulting Party') the other parties shall be deemed to have contracted with the Defaulting Party for such work and materials and shalt be entitled to file a mechanic s lien against the Defaulting Party s real property subject hereto for the amount of the payment owed, together with interest thereon at the rate of eight (8) percent per annum (the' Default Rate ") until paid and all costs of the collection including attorneys fees all in accordance with Chapter 44A of the North Carolina General Statutes 4 Indemnification AB and its successors and assigns and any future holders of the easement rights granted herein agree to indemnify, defend save and hold harmless AZAS and its successors and assigns, and all current and future owners of the AZAS Property or any part thereof from and against any and all losses, liabilities costs (including reasonable attorneys fees) expenses penalties ,judgments, claims and damages ofevery kind of character arising out of or in connection with any use of the Fasement by AB or its officers, tenants, employees agents customers, business visitors, guests licensees and invitees or other occupants of the AB Property except to the extent such losses are caused by the negligence or willful misconduct of AZAS or its successor s and assigns agents employees or cont actors AZAS and its successors and assigns and any future holders of the easement rights gianted herein agree to indemnify defend save and hold harmless AB and its successors and assigns, and all current and future owners of the Ala Property or any part thereof, from and against any and all losses liabilities costs (including reasonable attorneys fees) expenses penalties ,judgments claims and damages of every kind or character arising out of or in connection with any use of the Fasement by AZAS or its officers, tenants employees agents customers business visitors guests licensees and invitees or other occupants of the AZAS Property except to the extent such losses are caused by the negligence or willful misconduct of AB or its successors and assigns agents employees or contractors 5 Non bstruction The easements herein granted aie intended to, and shall be construed to peimit free and unobstructed usage of the Easement Area and no barriers or other obstructions may be placed except as expressly provided herein and no temporary or permanent parking shall be permitted anywhere within the easement areas Provided however in good faith temporary restrictions and prohibitions of use are permissible in order to perform the maintenance duties hereunder 3 6 Amendment This Agreement and the exhibits attached hereto contain the entire agreement among the parties No modification or amendment of this Agreement shall be of any for ce or effect unless made in writing and executed -by -AB gb- d—nA-S or -titer t esperttve -- successors and assigns 7 Captions The captions of this Agreement are intended only as a matter of convenience and for reference fhey do not define limit, or describe the scope of intent of this Agi eernent, and they shall not affect the interpretation hereof 8 No Partnership Joint Venture of Principal APent Relationshta Nothing in this Agreement nor any acts of the parties shall be deemed by the parties or by any third person to create the relationship of principal and agent, or of partnership, or of joint venture or of any association between the parties and no provisions of this Agreement are intended to create or constitute any person or third party beneficiary hereof 9 Bindin liffe_ct Phis Agreement and terms and provisions hereof shall be binding upon and inuie to the benefit of the successors and assigns of the parties hereto 14 Seyeiability If any provision of this Agreement shall to any extent be invalid of unenforceable the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law I 1 Governing Law This Agreement shall be construed interpreted and enforced in accordance with the laws of the State of North Carolina 12 Countgt parts 1 his Agreement may be signed in several counterparts each of which shall be deemed an original and all such counterparts shall constitute one and the same instrument Any counteipart to which is attached the signature of all parties shall constitute an original of this Agreement 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written b 61p✓ �ra A ("` A r d& I "Jul '. . rE OF NORTH CAROLINA COUN1 Y OF ('SiA 1102-4 ALBERDINGK BOLLY INC Byv President secretary a Notary Public of the County and State aforesaid certify tha{Dtt_4 `jj1 e {personally appeared before me this day and acknowledged that he is Pi esident of Alberdingk Boley Inc Inc a North Carolina corporation and that he as President by authority duly given, executed the foregoing mstiument on behalf of the company s Witness my hand and official scat this 2e day of March, 2009 My commission expires '5q QA- --2 R., .1b Lt, b CD r s s Notary Public AZAS LI C By Arthur L Sarnet Membei Manager By Andy Zimmerman, ember Manager STATE OI NORTH CAROLINA COUNTY OF Q.- kL,-! . I �'2r��,ll t «�c�• er a Notary Public foi said County and State aforesaid certify that �s,.��lmrna -� ►^ Menber/Manager of AZAS LLC, a North Carolina Limited Liability Company personally came before me this day and acknowledged the due execution of the foregoing Instrument on behalf of the company Witness my hand and official stamp or seal this the A`1�t, day of March 2009 My commission expires 3 Notary Public 1 \U SMNDGS \SAMM\,InsMivc%veyLnsuncttt dac 6 z :IV 1 1 \U SMNDGS \SAMM\,InsMivc%veyLnsuncttt dac 6 I STATE Or NOR'I H CAROLINA _____— COUN4*4&1 -_�u�� I, �ise f &1.f , a Notary Public for said County and State aforesaid certify that irj} v_ L „'y� ember /Manages of AZAS, LLC a Noi�li CatolinaLimited i Liability Company personally came before me this day and acicnowledgW UN, due execution of the foregoing instrument on behalf of the company Witness my hand and official stamp o1 seal. this the day of Mar Lh, 2009 My commission expires DUI T'J, zlyug *0TAq}- '(Isoo i 1Usemki)(jS%AMI:I kn asl)rtvc%vayLnscmctitdoc 7 &�� 14 Notary Public, i EXgfgrrA 1 } i t i I It J I 1 1 I �Mr1A f AF f� Y J i .'i t