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HomeMy WebLinkAbout2010-113 AMS - Morlando Construction, LLC - Construction Agreement for PFAP renovation _ Please return this Copy to the _ Clerk to the Board's office for PAF [Departmental Use Only] TITLE PFAP Renovation FY NORTH CAROLINA ORANGE COUNTY CONSTRUCTION AGREEMENT UNDER$1,000,000.00 THIS CONSTRUCTION AGREEMENT (hereinafter called "Agreement"), made as of the 29"' day of October, 2010, by and between Morlando Construction, LLC, (hereinafter called the "Contractor"), and Orange County, a body politic and a political subdivision of the State of North Carolina, (hereinafter called the "Owner"). WITNESSETH: That the Contractor and the Owner, for the consideration herein named, agree as follows: 1. CONTRACT DOCUMENTS; PRIORITY The Contract Documents for the Piedmont Food and Agricultural Processing Center Renovation project (hereinafter called the "Project") consist of this Agreement, the Request for Proposals, Proposal, Construction Drawings and Written Specifications. The Contract Documents form the Contract and are fully incorporated herein. In the event of any inconsistency between or among the Contract Documents, the Contract Documents shall be interpreted in the following order of priority: a. This Agreement. b. Designer Approved Bulletins and/or Field Orders. c. Request for Proposals and addenda thereto. d. Proposal. 2. SCOPE OF WORK The Contractor shall furnish and deliver all of the materials, and perform all of the work required by this Agreement within the time period stipulated in a written Notice-to-Proceed to be executed by the Contractor and Owner and in accordance with the following enumerated documents, which are made a part hereof as if fully contained herein: a. Construction Drawings prepared by Corley, Redfoot Zack, Inc. (Sheet section as follows - A0.0-3.1, 17 sheets dated 2/25/10; FP1.1, 1 sheet dated 2/25/10; P1.1-2.1, 4 sheets dated 2/25/10; M1.0-4.0, 5 sheets dated 2/25/10, E0:0-2.0, 5 sheets dated 2/25/10; FS.01-07, 7 sheets dated 2/23/10; and Addendums dated 3/17/10, 3/25/10, 4/1/10, and 4/6/10) b. Written specifications titled "Piedmont Food and Agricultural Processing Center Renovation Bid Set Project Manual" dated February 25, 2010 prepared by the Project Designer. c. Project proposal dated February 25, 2010 which fully describes the work to be performed, such work(hereinafter called the"Work"). Revised September 2010 d. Related documents listed under Section 1 above. 3. TERM AND SCHEDULING a. The Contractor agrees to commence work pursuant to the written Notice-to Proceed. b. The Contractor agrees to complete substantially all Work included by a calendar date not to exceed one hundred fifty four (154) days after the Notice to Proceed Date that should occur in October 2010. The Notice to Proceed will occur no later than ten (10) days after the execution of this Contract or when all applicable permits are received by the Contractor, whichever is later. The substantial completion date is TBD based on this information above. c. Time is of the essence with respect to all dates specified in the Contract Documents as Completion Dates. d. The Contractor shall perform the Work in the time, manner and form required by the Contract Documents and as stipulated in a written Notice-to-Proceed to be executed by the Contractor and Owner. e. It is expressly understood that the Owner will employ other contractors to perform work as a part of the Project whose work will be performed simultaneously and sequentially with the performance of the Work by the Contractor. It shall be necessary for the Contractor to coordinate its activities with such other contractors, particularly with respect to access to work areas, storage of materials and other common facilities. f. Should the Owner determine that the Contractor is behind schedule Owner may require, at no additional cost to the Owner, the Contractor to expedite and accelerate its efforts, including providing additional resources and working overtime, as necessary, to perform the Work in accordance with the approved project schedule. 4. STANDARD OF CARE a. The Contractor shall exercise reasonable care and diligence in performing the Work in accordance with the highest generally accepted standards of this type of Contractor practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the performance of these services. Contractor is solely responsible for the professional quality, accuracy and timely completion and/or submission of all work. b. The Contractor shall not load or permit any part of the Work to be loaded with a weight that will endanger its safety, intended performance or configuration. c. Contractor shall be responsible for all errors or omissions, in the performance of the Agreement. Contractor shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the Owner. d. Contractor is an independent contractor of Owner. Any and all employees of the Revised September 2010 2 Contractor engaged by the Contractor in the performance of any work or services required of the Contractor under this Agreement, shall be considered employees or agents of the Contractor only and not of the Owner, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Contractor. e. Contractor agrees that Contractor, its employees, agents and its subcontractors, if any, shall be required to comply with all federal, state and local antidiscrimination laws, regulations and policies that relate to the performance of Contractor's services under this Agreement. f. If activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Contractor represents that it and/or its employees, agents and subcontractors engaged in such activities possess such licenses, certifications, or credentials and that such licenses certifications, or credentials are current, active, and not in a state of suspension or revocation. 5. PAYMENT & TAXES a. The Owner hereby agrees to pay to the Contractor for the faithful performance of this Agreement, and the Contractor hereby agrees to perform all of the Work for a sum not-to- exceed eight hundred two thousand, four hundred seventy Dollars ($802,470.00). Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the Owner's Representative, generally the architect if an architect is retained on the Work, a Request for Payment for work done during the previous calendar month. i. The Request for Payment shall be in form of AIA Document G702-703 appropriately addressed to Owner's Representative at Corley, Redfoot Zack Architects, PO Box 2368, Chapel Hill, NC 27515-2368 and shall show substantially the value of work done during the previous calendar month. ii. The amount due for payment shall be ninety-five percent (95%) of the value of work completed since the last Request for Payment and this amount shall be paid by the Owner on or before the last business day of the month. Owner shall retain five percent(5%). 1. Upon Owner's Representative's certification that fifty percent (50%) of the Work has been satisfactorily completed on schedule, retainage may be reduced to zero percent (0%) with the approval of the Owner and with written consent of the surety. This retainage will be waived only as long as work continues to be completed satisfactorily and on schedule. iii. Final payment shall not be due to the Contractor until thirty (30) days after one hundred percent (100%) of the Work, including punch list work, has been satisfactorily completed. b. Should Owner reasonably determine that Contractor has failed to perform the Work related to a Request for Payment, Owner, at its discretion may provide the Contractor twenty (20) days to cure the breach. Owner may withhold the accompanying payment without penalty until such time as Contractor cures the breach. i. Should Contractor or its representatives fail to cure the breach within twenty (20) days, or fail to reasonably agree to such modified schedule, Owner may immediately terminate this Agreement in writing, without penalty or incurring further obligation to Contractor. Revised September 2010 3 ii. This section shall not be interpreted to limit the definition of breach to the failure to perform the Work related to a Request for Payment. c. The Contractor has included in the Contract Price and shall pay all taxes assessed by any authority on the Work or the labor and materials used therein. It shall be the Contractor's responsibility to furnish the Owner documentary evidence showing the materials used and sales and use tax paid by the Contractor and each of its subcontractors. 6. INSURANCE AND BONDS a. Minimum requirements — The Contractor shall obtain, at its sole expense, all insurance required under this Agreement and the Contractor shall not commence work until such insurance is in force nor shall the Contractor allow any Subcontractor to commence work on its subcontract until all insurance required to be procured by Subcontractors hereunder has been so obtained by or for the Subcontractor. All required insurance shall be procured from insurance companies licensed to do business in North Carolina with a Best's Insurance Guide Rating of A- or better. Coverage for the following types of insurance shall be maintained continuously during the life of the Project until Final Completion of the Work. Coverage's shall be maintained continuously during the life of the Project until Final Completion of the Work for the following types of insurance in the amounts listed: i. Worker's Compensation Insurance with limits for Coverage A Statutory - State of North Carolina and Coverage B Employers Liability $500,000 each accident and policy limit and disease each employee. ii. Comprehensive General Liability and Property Damage Insurance ($500,000 Each Occurrence; $1,000,000 Aggregate). iii. Contractual Liability (Bodily Injury and Property Damage $500,000 Each Occurrence; Property Damage $1,000,000 Aggregate). iv. Personal Injury, with Employment Exclusion deleted ($1,000,000 Aggregate). v. Comprehensive Automobile Liability Insurance (Bodily Injury $100,000 Each Person/Each Accident, $300,000 Each Occurrence; Property Damage $100,000 Each Occurrence). b. Additional Insured — The Owner shall be named as additional insured on all forms of insurance except Worker's Compensation. Each certificate of insurance and policy required hereunder, except the worker's compensation policy, shall bear the provision that "The policy cannot be canceled or reduced in amount and that coverage cannot be eliminated in less than thirty (30) days after mailing written notice to the Owner of such alteration, cancellation, or elimination,the written notice to be sent by Certified Mail." c. Performance Bonds — Contractor shall furnish bonds covering the faithful performance of the Contract and payment of all obligations arising under any of the Contract Documents or related in any way to the Work. Contractor shall immediately furnish a copy of such bonds to any requesting person who appears to be a potential beneficiary of bonds covering payment obligations arising under any of the Contract Documents. Revised September 2010 4 7. INDEMNITY a. The Contractor shall indemnify and hold harmless to the extent permitted by law the Owner and its agents and employees from and against any and all claims, damages, losses and expenses, including attorney's fees, arising out of or resulting from the performance or nonperformance of the Work, provided that any such claim, damages, loss or expense (A) is attributable to bodily injury, sickness, disease or death or injury to, or destruction of, property, including the loss of use resulting there from; and (B) is caused in whole or in part by any breach of any provision of the Agreement or by any negligent or wrongful act or omission of the Contractor, any Subcontractor, or supplier of the Contractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The indemnification obligation under this paragraph shall not be limited in any way by any limitation of the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor under workers' compensation acts, disability benefits acts or other employee benefit acts. b. The Contractor shall indemnify and hold harmless Owner from any lien of whatever type through the purchase of appropriate bonds and insurance as designated in Section 6 above. 8. DISPUTE RESOLUTION AND GOVERNING LAW a. Owner and Contractor agree that should a dispute arise as to the terms of the Contract Documents the architect shall serve as the initial decision-maker, unless there is no architect retrained on the project related to the Work. i. If there is no architect retained for the Work, Owner and Contractor agree, prior to the initiation of any civil litigation, to submit to mediation by agreeing on a an individual to serve as mediator to mediate the dispute. ii. Should the Owner and Contractor fail to mutually agree on an individual to serve as mediator Owner may select a mediator to mediate the dispute. iii. Any mediator selected under this section shall be an attorney licensed to practice law in the State of North Carolina and shall be generally recognized as having experience in mediating construction disputes. iv. Owner and Contractor agree to equally share in the cost of a mediator selected under this section. b. The laws of the State of North Carolina shall apply to the interpretation and enforcement of this Agreement. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of, or the performance or nonperformance of, this Agreement or the Contract shall be brought in the General Court of Justice of North Carolina sitting in Orange County,North Carolina and it is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. c. Notice of any claim by Owner or Contractor must be initiated by written notice to the other Party within thirty (30) days of the occurrence of the event giving rise to the claim or within thirty (30) days of the discovery of the event or condition giving rise to the claim, whichever is later. i. Should any claim be made, regardless of whether such claim is made by Owner or Contractor, Contractor shall continue to faithfully and diligently perform the Work in such a manner as to meet all scheduled timelines. Any failure to faithfully and diligently perform the Work may be deemed, by the Owner, a breach of the Contract. Revised September 2010 5 ii. If a claim is made such claim shall be made to the initial decision maker, if applicable, who may request more supporting data, reject the claim in whole or in part, approve the claim in whole or in part or advise the parties the claim is unable to be resolved. iii. If a claim is made by the Owner the Owner may, but is not obligated to, notify the surety. 9. NON—APPROPRIATION a. Contractor acknowledges that Owner is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. b. In the event that public funds are unavailable and not appropriated for the performance of Owner's obligations under this Agreement, then this Agreement shall automatically expire without penalty to Owner immediately upon written notice to Contractor of the unavailability and non-appropriation of public funds. It is expressly agreed that Owner shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. c. In the event of a change in the Owner's statutory authority, mandate and/or mandated functions, by state and/or federal legislative or regulatory action, which adversely affects Owner's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to Owner upon written notice to Contractor of such limitation or change in Owner's legal authority. 10.NOTICES Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following: Owner: Contractor: Orange County Morlando Construction, LLC P.O. Box 8181 8604 Cliff Cameron Drive, Suite 155 Hillsborough,NC 27278 Charlotte,NC 28269 11. MISCELLANEOUS a. Duties and Obligations imposed by the Contract Documents shall be in addition to any Duties and Obligations imposed by state, federal or local law, rules, regulations and ordinances. b. No act or failure to act by the Owner or Contractor shall constitute a waiver of any right or duty granted them under the Contract Documents, nor shall any act or failure to act constitute any approval except as specifically agreed in writing. c. The Work shall be tested and inspected as required by the Contract Documents and as required by law. Unless prohibited by law the costs of all such tests and inspections related to state and federal codes such as ADA, Administrative, Electrical, Plumbing, Mechanical and Building Codes shall be borne by the Contractor. The costs for material and structural testing shall be conducted by an independent third party at the expense of the Revised September 2010 6 Owner. Delays related to any of the aforementioned tests and inspections shall not be grounds for delaying the completion of the work. If any such tests and inspections reveal deficiencies in the Work such that the Work does not comply with terms or requirements of the Contract Documents and/or the requirements of any code or law the Contractor is solely responsible for the cost of bringing such deficiencies into compliance with the terms of the Contract Documents and/or any code or law. d. Should the Architect, if an architect is retained for the project involving the Work, or Owner reject any portion of the Work for failing to comply with the Contract Documents Contractor shall immediately, at Contractor's expense, correct the Work. Any such rejection may be made before or after substantial completion. If applicable, any additional expense borne by the Architect under this section shall be paid at Contractor's expense. e. The Contractor shall not assign any portion of this Agreement nor subcontract the Work in its entirety without the prior written consent of the Owner. 12. CONSEQUENTIAL AND LIQUIDATED DAMAGES a. Owner and Contractor mutually waive any claim against each other for consequential damages. Consequential Damages include: i. Damages incurred by Owner for loss of use, income, financing, or business. ii. Damages incurred by Contractor for office expenses, including personnel, loss of financing, profit, income, business or damage to reputation. b. Liquidated damages shall be in accord with the Contract Documents. 13. TERMINATION OR SUSPENSION a. The Owner may, without cause, order the Contractor to terminate, suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. In the event of termination by the Owner under this Agreement, the Contractor shall be entitled to receive its reasonable and documented direct costs prior to termination, including the cost of materials purchased for the Work which purchases cannot be canceled or which material cannot reasonably be used by the Contractor on other work, and the cost of closing down the work in a safe and efficient manner. i. If Owner orders a delay, suspension or interruption of the Work, and such order is not due to or as a result of any fault on the part of the Contractor, the Contractor may recover a per diem amount calculated by dividing the Contract General Conditions amount found in the Schedule of Values by the project duration of 154 days. ii. If Contractor elects to accept the amount listed in the General Conditions provision of the Construction Documents Contractor waives any right to further claims for payment of damages sustained as a result of Owner's order to delay, suspend or interrupt the Work. b. Contractor may terminate the Contract if, at the Owner's written direction, the Work is stopped for thirty (30) consecutive days through no act or fault of the Contractor, their Revised September 2010 7 agents or employees, or a subcontractor or their agents or employees or any other person performing work pursuant to the Contract Documents. Contractor may terminate the Contract if a Court or other Public authority having jurisdiction enters a lawful order that requires all work to be stopped and such stoppage lasts for thirty(30) consecutive days. 14. ENTIRE AGREEMENT All of the documents listed, referenced or described in this Agreement, the written Notice-to- Proceed, together with Modifications made or issued in accordance herewith are the Contract Documents, and the work, labor, materials and completed construction required by the Contract Documents and all parts thereof is the Work. The Contract Documents constitute the entire agreement between Owner and Contractor. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. If any provision of the Agreement shall be declared invalid or unenforceable,the remainder of the Agreement shall continue in full force and effect. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and date first above written in a number of counterparts, each of which shall, without proof or accounting for other counterparts, be deemed an original contract. ORANGE COUNTY CONTRACTOR Si afore S a e • Frank W lift n, Manager Dominic Morlando, President Printed Name and Title This instrument has been approved as to technical content. "Paw, a Pamela Jones, b6artment Director This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. (Yaa�'u �, A4L_.1 Office of the Finance Director This instrument has been approved as to legal form and sufficiency. Of of e County Attorney Revised September 2010 8 THE AMERICAN INSTITUTE OF ARCHITECTS �� II Bond No. 872871 P AIA Document A312 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR(Name and Address): SURETY(Name and Principal Place of Business): Morlando Construction, LLC Developers Surety and Indemnity Company 8604 Cliff Cameron Drive, Suite 155 P. 0. Box 19725 Charlotte, NC 28269 Irvine, CA 92623 OWNER(Name and Address): Orange County PO Box 8181 Hillsborough, NC 27278 CONSTRUCTION CONTRACT Date: October 15, 2010 Amount: $802,470.00 Eight Hundred Two Thousand Four Hundred Seventy Dollars and 00/100 Description (Name and Location): Piedmont Food and Agricultural Processing Center Renovation Mpn�rrn�, BOND COMST' A Date(Not earlier than Const tr October 19, 2010 Amount: $802,470.00 E t• n I e sand Four Hundred Seventy Dollars and 00/100 Modifications to this Bond. Q:J CpAftNr .n;Its None ❑ See Page 3 g: Ann .4. s 9 CONTRACTOR AS PRINCIPA •.; nnyy��~' A SURETY Company: .� eal) Company: (Corporate Seal) Morlando Construction, LLC �hy"'�,NNN�`'`� Developers SyTty and Indemnity Company Signat e Signature: Name Name . Name and TI Ie:Ange M.Yount =y a° OcT <s Atto -in-Fact oe 936 (Any additional signatures appear on page 3) �'�� �,�oWA,.��;a (FOR INFORMATION ONLY-Name,Address and Telephone) OWNER'S REPRESENTATIVE (Architect, P►gigp�J;,Rr„oilier AGENT Or BROKER: party) : Marsh&Mclennan Agency LLC(MMA)-Rutherfoord Division Corley, Redfoot Zack, Inc. 6230 Fairview Road, Suite 230 Charlotte, NC 28210 AIA DOCUMENT A312•PERFORMANCE BOND AND PAYMENT BOND•DECEMBER 1984 ED.•AIA THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVE.,N.W.,WASHINGTON,D.C.20006 A312.1984 1 THIRD PRINTING•MARCH 1987 I' The Contractor and the Surety, jointly and severally, which it may be liable to the Owner and, as bind themselves, their heirs, executors, administrators, soon as practicable after the amount is deter- successors and assigns to the Owner for the performance mined, tender payment therefor to the of the Construction Contract,which is incorporated herein Owner; or by reference. .2 Deny liability in whole or in part and notify the 2 If the Contractor performs the Construction Contract, Owner citing reasons therefor. the Surety and the Contractor shall have no obligation under this Bond, except to participate In conferences as S If the Surety does not proceed as provided in Paragraph provided in Subparagraph 3.1. 4 with reasonable promptness,the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an 3 If there is no Owner Default, the Surety's obligation additional written notice from the Owner to the Surety under this Bond shall arise after: demanding that the Surety perform its obligations under 3.1 The Owner has notified the Contractor and the this Bond,and the Owner shall be entitled to enforce any Surety a remedy available to the Owner. If the Surety proceeds as its address described in Paragraph a below that the Owner is considering declaring a Contractor provided in Subparagraph 4.4,and the Owner refuses the Default and has requested and attempted to arranger payment tendered or the Surety has denied tiabitity, in conference and with the Contractor and the Surety to be whole or in part,without further notice the Owner shall be held not later than fifteen days after receipt of such emitted to enforce any remedy available to the Owner. notice to discuss methods of performing the Construe- 6 After the Owner has terminated the Contractor's right tion Contract. If the Owner, the Contractor and the to complete the Construction Contract,and it the Surety Surety agree,the Contractor shall be allowed a reason- elects to act under Subparagraph 4,1. 4,2, or 4.3 above, able time to perform the Construction Contract, but then the responsibilities of the Surety to the Owner shall such an agreement shall not waive the Owner's right,if not be greater than those of the Contractor under the any,subsequently to declare a Contractor Default;and Construction Contract, and the responsibilities of the 3.2 The Owner has declared a Contractor Default and Owner to the Surety shall not be greater than those of the formally terminated the Contractor's right to complete Owner under the Construction Contract,To the limit of the the contract.Such Contractor Default shall not be de- amount of this Bond, but subject to commitment by the dared earlier than twenty days after the Contractor and Owner of the Balance of the Contract Price to mitigation of the Surety have received notice as provided in Sub- costs and damages the Construction Contract,the Sure- paragraph 3.1; and ty is obligated without duplication for: 6.1 The responsibilities of the Contractor for correc- 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the lion of defective work and completion of the Construc- terms of the Construction Contract or to a contractor lion Contract; selected to perform the Construction Contract in accor. 6.2 Additional legal, design professional and delay dance with the terms of the contract with the Owner. costs resulting from the Contractor's Default, and re- 4 when the Owner has satisfied the conditions of Para- sulting from the actions or failure to act of the Surety graph 3,the Surety shall promptly and at the Surety's ex- under Paragraph 4; and pense take one of the following actions: 6.3 Liquidated damages, or if no liquidated damages 4.1 Arrange for the Contractor, with consent of the are specified in the Construction Contract,actual dam- Owner, to perform and complete the Construction ages caused by delayed performance or ran-perfor- Contract; or manse of the Contractor. 4.2 Undertake to perform and complete the Construe-- 7 The Surety shall not be liable to the Owner or others for lion Contract itself,through its agents through truc obligations of the Contractor that are unrelated to the Con- pendent contractors; or struction Contract,and the Balance of the Contract Price shall not be reduced or set off on account of any such 4.3 Obtain bids or negotiated proposals from unrelated obligations. No right of action shall accrue on qualified contractors acceptable to the Owner for a this Bond to any person or entity other than the Owner or contract for performance and completion of the Con- Its heirs, executors, administrators or successors. struction Contract. arrange for a contract to be pre- 8 The Surety hereby waives notice of any change,includ. pared for execution by the Owner and the contractor selected with the Owner's concurrence,to be secured in changes of time, to the Construction Contract or to with performance and payment bonds executed by a related subcontracts, purchase orders and other obliga- qualified surety equivalent to the bonds issued on the tlons- Construction Contract, and pay to the Owner the 9 Any proceeding, legal or equitable, under this Bond amount of damages as described in Paragraph 6 In ex- may be instituted in any court of competent jurisdiction in cess of the Balance of the Contract Price incurred by the the location in which the work or pan of ihework is located Owner resulting from the Contractor's default; or and shalt be Instituted within two years after Contractor 4.4 Waive its right to perform and complete,arrange Default or within two years after the Contractor ceased for completion, or obtain a new contractor and with working or within two years after the Surety refuses or fails reasonable promptness under the circumstances: to perform its obligations under this Bond,whichever oc- curs first. If the provisions of this Paragraph are void or .1 After investigation,determine the amount for prohibited by law,the minimum period of limitation avail- AIA DOCUMENT A312•PERFORMANCE BOND AND PAYMENT BOND•DECEMBER 1984 ED.•AIA THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVE.,N.W.,WASHINGTON,D.C.20006 A312.1984 2 THIRD PRINTING.MARCH 1987 able to sureties as a defense in the jurisdiction of the suit tractor of any amounts received or to be received by shall be applicable. the Owner in settlement of insurance or other claims 10 Notice to the Surety,the Owner or the Contractor shall for damages to which the Contractor is entitled, re- be mailed or delivered to the address shown on the sig- duced by all valid and proper payments made to or on nature page. behalf of the Contractor under the Construction Con- tract. 11 When this Bond has been furnished to comply with a 12,2 Construction Contract:The agreement between statutory or other legal requirement in the location where the Owner and the Contractor identified on the sig- the construction was to be performed,any provision in this nature page, including all Contract Documents and Bond conflicting with said statutory or legal requirement changes thereto. shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall 12.3 Contractor Default: Failure of the Contractor, be deemed incorporated herein. The intent is that this which has neither been remedied nor waived,to per- Bond shall be construed as a statutory bond and not as a form or otherwise to comply with the terms of the common law bond. Construction Contract. 12 DEFINITIONS 12.4 Owner Default: Failure of the Owner,which has neither been remedied nor waived, to pay the Con- 12.1 Balance of the Contract Price:The total amount tractor as required by the Construction Contract or to payable by the Owner to the Contractor under the perform and complete or comply with the other terms Construction Contract after all proper adjustments thereof. have been made, including allowance to the Con. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (Space is provided below for additional signatures of added parties,other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: {Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AIA DOCUMENT A312•PERFORMANCE BOND AND PAYMENT BOND•DECEMBER 1984 ED.•AIA THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVE.,N.W.,WASHINGTON,D.C.20006 A312.1984 3 THIRD PRINTING•MARCH 1987 THE AMERICAN INSTITUTE OF ARCHITECTS Bond No. 872871 P A1A Document A311 Labor and Material Payment Bond THIS BOND IS ISSUED SIMULTANEOUSLY WITH PERFORMANCE BOND IN FAVOR OF THE OWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT KNOW ALL MEN BY THESE PRESENTS:that Morlando Construction, LLC {Hero inert U name and address or legal title of Contractor) 8604 Cliff Cameron Drive, Suite 155 Charlotte, NC 28269 as Principal, hereinafter called Principal, and, Developers Surety and Indemnity Company (Hero insert bill name and address or legal We of Surety) P. O. Box 19725, Irvine, CA 92623 as Surety, hereinafter called Surety, are held and firmly mound unto Orange County (Here insed hill name and address or legal We of Owner) PO Box 8181 Hillsborough, NC 27278 as Obligee, hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined, in the amount of Eight Hundred Two Thousand Four Hundred Seventy Dollars and 00/100 (Hem insert a sum equal to at least owhelt of the contrail price) Dollars($802,470.00 for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns,jointly and severally,firmly by these presents. WHEREAS, Principal has by written agreement dated October 15, 2010 , entered into a contract with Owner for 44w*insert U ne ne,address and description of pmjuQ Piedmont Food and Agricultural Processing Center Renovation In accordance with Drawings and Specifications prepared by Corley, Redfoot Zack, Inc. (Hero insert full name and address or legal We of Architect) which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. AIA DOCUMENT A311 • PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND • AIA FEBRUARY 1970 E0. • THE AMERIGW INSTITUTE OFARCHITECT5,1735 N.Y.AVE,N.W.,WA"40TON,D.C.20008 1 LABOR AND MATERIAL PAYMENT BOND NOW,THEREFORE,THE CONDITION OF THIS OBLIGATION is such that if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract,then this obligation shall be void,otherwise it shall remain in full force and effect,subject,however,to the following conditions: 1. A claimant is defined as one having a direct and the name of the party to whom the materials were contract with the Principal or with a Subcontractor of the fumished, or for whom the work or labor was done or Principal for labor, material, or both, used or reasonably performed. Such notice shall be served by mailing the required for use in the performance of the Contract, labor same by registered mail or certified mail, postage prepaid, and material being construed to include that part of water, in an envelope addressed to the Principal,Owner or Surety, gas, power, light, heat, oil, gasoline, telephone service or at any place where an office is regularly maintained for the rental of equipment directly applicable to the Contract transaction of business, or served in any manner in which 2. The above named Principal and Surety hereby jointly legal process may be served in the state in which the and severally agree with the Owner that every claimant as aforesaid project is located,save that such service need not herein defined, who has not been paid in full before the be made by a public officer. expiration of a period of ninety(90) days after the date on b) After the expiration of one(1)year following the date on which the last of such claimants work or labor was done or which principal ceased Work on said Contract, it being perforated, or materials were fumished by such claimant, understood, however,that if any limitation embodied in this may sue on this bond for the use of such claimant, bond is prohibited by any law controlling the construction prosecute the suit to final judgment for such sum or sums hereof such limitation shall be deemed to be amended so as may be justly due claimant,and have execution thereon. as to be equal to the minimum period of limitation permitted The owner shall not be liable for the payment of any costs by such law. or expenses of any such suit 3. No suit or action shall be commenced hereunder b and f Othoar ��nn state he political ti competent jurisdiction in any claimant y in which the Pro political subdivision of the state Project or any part thereof, is situated, or in a) Unless claimant, other than one having a direct the United States District Court for the district in which the contract with the Principal,shall have given written notice to ProJect,or any part thereof, is situated,and not elsewhere. any two of the following: the Principal, the Owner, or the 4. The amount of this bond shall be reduced by and Surety above named, within ninety (90) days after such to the extent of any payment or payments made in good claimant did or performed the last of the work or labor, or faith hereunder, inclusive of the payment by Surety or fumished the last of the materials for which said claim is mechanics' liens which may be filed of r said made, stating with substantial accuracy the amount improvement,whether or not claim for •t�f claimed lien be presented under and againstp Signed and sealed this 19th day of October, 2010. :�r:4 ,2 s a ATTEST: + LLO '' z4 . '•:!� O�`�t• as ,rll"spll► rlando Construction, LLC , CAR .. s of follow R� URG Go WITNESS: Developers Surety and Indemnity Company By, Le !• AND SIIIC Debra S. Ritter 11Nifraso loft o f 1936 !o Q 0w�n„.•��a gar (Wa t, Ange a M.Y u t (Tine)Aft rney-in-Fact µy11„I,.,,g11N AIA DOCUMENT A311 • PERFORMANCE BOND AND LA8OR AND MATERIAL PAYMENT BOND • AIA O FEBRUARY 1970 ED. • THE AMERICAN INSTITUTE OFARCHITECTS,IM N.Y.AVE.,N.W.WASHINGTON,D.C.20006 2 POWER OF ATTORNEY FOR DEVELOPERS SURETY AND INDEMNITY COMPANY INDEMNITY COMPANY OF CALIFORNIA PO Box 19725,IRVINE,CA 92623 (949)263.3300 KNOW ALL MEN BY THESE PRESENTS,that as except as expressly limited,DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,do each,hereby make,constitute and appoint Angela M. Yount as their true and lawful Attorney(s)-in-Fact,to make,execute,delver and acknowledge,for and on behalf of said corporations,as sureties,bonds,undertakings and contracts of suretyship giving and granting unto said Attomey(s)-in-Fact fug power and authority to do and to perform every act necessary,requisite or proper to be done In connection therewith as each of said corporations could do,but reserving to each of said corporations U power of substitution and revocation,and al of the ads of said Attorney(s)-in. Fact,pursuant to these presents,are hereby ratified and confirmed. This Power of Attorney Is granted and is signed by facsimile under and by authority of the Mowing resolutions adopted by the respective Board of Directors of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,effective as of November 2,2007. RESOLVED,that the chairman of the Board,the President and any Vice President of the corporation be,and that each of them hereby is,authorized to execute Powers of Attorney,quali f ft the attomey(s)named In the Powers of Attorney to execute,on behalf of the corporations,bonds,undertakings and contracts of suretyship;and that the Secretary or any Assistant Secretary of the corporations be,and each of them hereby Is,authorized to attest the execution of any such Power of Attorney; RESOLVED,FURTHER,that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile,and any such Power of Attorney or certificate bearing such facsimile signatures shall be vafid and bang upon the corporations when so affixed and in the future with respect to any bond,undertaking or contract of suretyship to which it Is attached. IN WITNESS WHEREOF,DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severalty caused these presents to be signed by their respective V Ident and attested by their respective Assistant Secretary this November 2.2007 . 8 /T7 V' pH.11h.NN1 Stephen T.Pate,Senior Vice Pre MR r,P't'� AND�yo,,4 MPAN Y O P�.............. F .. O .� . 4�tiLPOr7��F,4�—'X �aGG APOJ�r OCT. 1 aY_ 0 1936 in! 1967 0� Charles L.Day.Assistant Secretary #sts�ti rowA.r•ada' �yi oq<J�pP��P az �IOhh�,.„LPN a STATE OF CALIFORNIA ] COUNTY OF ORANGE ] On November 2,2007, before me,Christopher J.Roach,Notary Pubfic,personally appeared Stephen T.Pate and Charles L.Day,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that hefshelthey executed the same in hislherAhehr authorized capacity*).and that by bM*A heir signature(s)on the instrument the person(s),or the entity upon behalf of which the person($)acted, executed the inshuroenL WIT E6S and a d offidalr eat. �y CHRISTOPHER J,AQAt.N Signature �* �,/A �-^"�-- (SEAL) COMM. 1745939 ristophe .Roach NOPM PuBt C CALIFORNIA ORANGE COUNTY A oowwL expires May 19,2011 CERTIFICATE The undersigned,as Assistant Secretary,of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked,and furthermore,that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth in the Power of A lomey,are in force as of the date of this certificate. This certificate is executed in the ci of ovine,California,the 19th day of October, 2010 brand,As tail Secretary ID-1380(Wet)(Rev.07 107) OP ID:VW ACORO" DATE(MM/DD/JYYY) CERTIFICATE OF LIABILITY INSURANCE 10/11/10 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED,the policy(les)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER 336-272-7161 CONTACT NAME: Senn Dunn-GSO PHONE FAX 3625 N.Elm St. 336-346-1397 A!C N A/C No: E-MAIL P O BOX 9375 ADDRESS: Greensboro,NC 27429-0375 CR TUMERI ,:MORLA-2 INSURERS AFFORDING COVERAGE NAIL 0 INSURED Morlando Construction,LLC INSURER A:Amerisure Companies Dominic Morlando INSURER B:Builders Mutual Ins.Co. 8604 Cliff Cameron Dr.Ste 155 Charlotte,NC 28269 INSURER C: INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: 001 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR POLICY EFF Y EX LTR TYPE OF INSURANCE POLICY NUMBER MM/DD/Y1YY MM/DD LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,00 A X COMMERCIAL GENERAL LIABILITY CPP2065328 10116!09 10116/10 PREMISES Ea occurrence $ 100,00 CLAIMS MADE OCCUR MED EXP(Any one person) $ 5,00 PERSONAL&AOV INJURY $ 1,000,00 GENERAL AGGREGATE $ 2,000,00 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,00 POLICY 7 PRO- LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1,000,00 A X ANY AUTO CA20665230001 10/16109 10116110 (Ea accident) BODILY INJURY(Per person) $ ALL OWNED AUTOS BODILY INJURY(Per accident) $ SCHEDULED AUTOS PROPERTY DAMAGE $ HIRED AUTOS (Per accident) NON-OWNED AUTOS $ $ UMBRELLA UAB HOCCUR EACH OCCURRENCE $ EXCESS LIAR CLAIMS-MADE AGGREGATE $ DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION X I WC STATU- I PITH- AND EMPLOYERS'LIABILITY - • S ANY PROPRIETOR/PARTNER/EXECUTIVE YIN 00100046811109 10/28109 10/28/10 E.L.EACH ACCIDENT $ 500,00 OFFICER/MEMBER EXCLUDED? ❑ N/A (Mandatory In NH) E.L.DISEASE-EA EMPLOYEE $ 500,00 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 600,00 DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES(Attach ACORD 101,Additional Remarks Schedule,H more space is required) Orange County is additional Insured with respects to liability arising from the operations of the named Insured. CERTIFICATE HOLDER CANCELLATION ORANINS SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Orange County ACCORDANCE WITH THE POLICY PROVISIONS. PO Box 8181 Hillsborough,NC 27278 AUTHORIZED REPRESENTATIVE ©1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25(2009/09) The ACORD name and logo are registered marks of ACORD (2) That portion of "your work"out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. 2. The iimits of insurance applicable to the additional insured are the least of those specified in the written contract or agreement,or in the certificate of Insurance or in the Declarations for this policy. If you also carry an Umbrella policy,and the written contract or agreement or certificate of insurance requires that the additional insured status also apply to such Umbrella policy,the limits of insurance applicable to the additional insured under this policy shall be those specified in the Declarations of this policy. The limits of insurance applicable to the additional insured are inclusive of and notTn addition to the limits of insurance shown in the-Declarations. 3. The additional insured status provided by this endorsement does not extend beyond the expiration or termination of a premises lease or rental agreement nor beyond the term of this policy. 4. Any person or organization who is an insured under the terms of-this endorsement and who is also an insured under the terms of the GENERAL LIABILITY EXTENSION ENDORSEMENT,if attached to this policy;shall have the benefit of the terms of this endorsement if the terms of this endorsement are broader. 5. If a written contract or agreement or a certificate of insurance as outlined above requires that additional Insured status be provided by the use of CG 20 10 11 85, then the terms of that endorsement,which are shown below, are incorporated into this endorsement as respects such additional insured,to the extent that such terms do not restrict coverage otherwise provided by this endorsement: ADDITIONAL INSURED-OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person or Organization: Blanket Where Required by.Written Contract, Agreement,or Certificate of Insurance that the terms of CG 20 10 1185 apply (If no entry appears above,information required to complete this endorsement Will be shown In the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II)is amended to include as an insured the person or organization shown In the Schedule,but only with respect to liability arising out of"your work"for that insured by or for you. Copyright, Insurance Services Office, Inc., 1984 CG 2010 1185 The insurance provided to the additional insured does not apply to"bodily injury", "property damage","personal injury",or"advertising injury"arising out of an architect's,engineer's,or surveyor's rendering of or failure to render any professional services including but not limited to: 1. The preparing,approving,or failing to prepare or approve maps,drawings, opinions, reports,surveys,change orders, design specifications;and 2. Supervisory,inspection,or engineering services. Any coverage provided in this endorsement is excess over any other valid and collectible insurance available to the additional Insured whether primary,excess,contingent,or on any other basis unless the written contract, agreement,or certificate of insurance requires that this-Insurance be primary, in which'case this insurance will be primary without contribution from such other insurance available to the additional insured. includes copyrighted material of Insurance Services Office, Inc.,with its permission. Copyright Insurance Services Office, Inc.2003 Page 2 of 2 CG 70 48 03 04 i THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. i CONTRACTOR'S BLANKET ADDITIONAL INSURED ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM All of the terms, provisions,exclusions, and limitations of the coverage form apply except as specifically stated below. SECTION i1-WHO iS AN INSURED Is amended to include as an insured any person or organization,called an additional insured in this endorsement: 1. Whom you are required to add as an additional insured on this policy under a written contract or agreement relating to your business;or 2. Who is named as an additional insured under this policy on a certificate of insurance. However,the written contract, agreement or certificate of insurance must require addttional insured status for a time period during the term of this policy and be executed prior to the"bodily injury", "property damage","personal Injury", or"advertising injury"giving rise to a claim under this policy. If, however,"your work"was commenced under a letter of Intent or work order,subject to a subsequent reduction to writing within 30 days from such commencement and with customers whose customary contracts require they be named as additional insureds,we will provide additional insured status as specified in this endorsement. 3. If the additional insured is: (a) An individual,their spouse Is also an additional insured. i (b) A partnership or joint venture, members, partners, and their spouses are also additional insureds. (c) A limited liability company, members and managers are also additional Insureds. (d) An organization other than a partnership,joint venture or limited liability company,executive officers and directors of the organization are also additional insureds. Stockholders are also additional insureds, but only with respect to their liability as stockholders. (e) A trust,you are an Insured. Your trustees are also insureds,but only with respect to their duties as trustees. The insurance provided to the additional insured is limited as follows: 1. That person or organization is only an additional insured with respect to liability arising out of: (a) Premises you own,rent, lease,or occupy,or (b) Your ongoing operations performed for that additional insured,unless the written cohtract or agreement or the certificate of insurance requires"your work"coverage.(or wording to the same Affect)in which case the coverage provided shall extend to"your work"for that additional insured. Premises, as respects this provision,shall include common or public areas about such premises if so required in the written contract or agreement. Ongoing operations, as respects this provision,does not apply to"bodily injury"or"property damage"occurring after: (1) All work including materials, parts or equipment furnished in connection with such work on the project (other then service, maintenance or repairs)to be performed by or on behalf of the additional insured(s)at the site of the covered operations has been completed; or J Includes copyrighted material of Insurance Services Office, Inc.,with its permission. Copyright Insurance Services Office, Inc.,2003 CG 70 48 03 04 Page 1 of 2