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INFOLAWYER, Attorney
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Central Florida - Central Florida - Im an independent constructi

Customer Question

Central Florida - Central Florida - I'm an independent construction consultant/Project Manager in Central Florida, This Pastor/church has had difficulty raising capitol to continue construction (completed site-work). My consultant/project management service contract has been paid-in-full for a year and a half now (duties included; conceptual / preliminary budgets, oversight of CDP & EIP plans, building plans, 2 public hearings, permit expediting, underground & site construction work...

My question is based on Article 2 / 2.1 (below) of my service contract, that although I'm paid already, am I obligated to continue if they somehow find the finances to proceed with vertical?

Article 2

AGREEMENT TERM

2.1 This Agreement shall commence on the date and year first above written (5/11/09), and unless modified by mutual agreement of the parties or terminated earlier pursuant to the terms of this Agreement, shall continue until the earlier of (1) the satisfactory completion of the services set forth in EXHIBIT A; or (2) May 10th, 2010.
Submitted: 3 years ago.
Category: Business Law
Expert:  INFOLAWYER replied 3 years ago.
Good afternoon.

You raise a valid concern. The clause you cited calls for continued performance. It has no exception or qualification. Courts however will permit an exception due to impossibility for example where your continuing to do the work is not physically safe or feasible. Under section 2.1, it would continue until the earlier: May, 2010.

If there is something else going on that I need to know or another issue you need addressed, just ask me

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INFOLAWYER, Attorney
Category: Business Law
Satisfied Customers: 50962
Experience: LICENSED BUSINESS LAWYER
INFOLAWYER and 3 other Business Law Specialists are ready to help you
Customer: replied 3 years ago.

Not understanding ... are you saying that I'm still obligated to continue the project when and if they secure funding even though we are a year and a half beyond the May 10, 2010 date and 2.1?

Expert:  INFOLAWYER replied 3 years ago.
You would only be required to continue for the term of the contract. Once that time passes, which it has, you would stop, and continue on only if you come to new terms and a new period. No obligation to continue going forward from what you provided.
Customer: replied 3 years ago.
Thank you ... you have been very helpfull ... do I get a copy of this exchange for my records?
Expert:  INFOLAWYER replied 3 years ago.
Very welcome. You can print it, come back here anytime, copy and paste. As you wish! Take care.
Customer: replied 3 years ago.

I'm a member and have had several questions answered regarding this particular case, here is a brief overview:

 

Construction Consultant Management Services, LLC:

 

Ken Ramos / Registered Agent

Alex Moya / Managing Partner - A Registered Florida General Contractor (giving CCMS the ability to write contracts under Florida Law)

 

CCMS Services Include:

 

Pre-Construction Services

On Site Construction Management Services

Full Range Engineering Services

Architectural & Design Services

Due Diligence Assessment Reports

Develop Conceptual/Preliminary Budget

Proposals, Estimating & Work Scopes

Third-Party Contract Prep & Negotiating

Permit Expediting Service

Quality Control & Production Reports

Project Scheduling & Follow-up Reports

Digital Photography Reports

Thermal Imaging / Inspection Reports

Non-invasive Damage Evaluation Reports

Punch Scheduling, Walk-thru Reports

Pre-Qualified Contractor Referral List

 

We are in direct contract with a client, we contract for a percentage of the overall construction budget to oversee and manage the project. When working with churches or clients who may have inherent financial issues, it is necessary to impose a time limit for project completion.

 

We (CCMS) then write RFP's (request for proposals) per line item with specified work scopes (civil engineering, architectural, block wall, foundation, underground piping, utilities connect, roofing, etc.) to other contractors however, these contractors/subcontractors are in direct contract with CCMS (not our clients). We then submit the 3 lowest bidders to the client on a CRF (contract recommendation form) which the client signs off on, we do make recommendations as to which contractor we feel is a better choice. By utilizing this per-line item bid method of construction we usually cut construction costs by some 12 to 18% plus.

 

Executed Contracts:

 

Contract A: El Pan De Vida / Church & CCMS:

Executed May 11, 2009

Completed May 10, 2010

 

CCMS was contracted by client (El Pan De Vida - Church) to oversee a construction project from concept to completion. Worked client's requirements/needs to a feasible and constructible building concept, established a conceptual/preliminary construction budget that met their needs.

 

Contract B: CCMS & Construction Unlimited Services, Inc. (Civil Engineering)

Executed June 16, 2009

Completed: May 14, 2010

 

County was against this project from the beginning we took the client through 2 public hearings (as they erroneously denied the first project) we were forced to redesign the entire project and resubmit for a second time, after prevailing at the BPC (board of planning commissioner's level) we took them through the BCC (board of county commissioner's) hearing for final project approval.

 

Contract C: CCMS & RH Wilson (Architectural/Structural Design)

Executed July 27, 2009

Incomplete; (see notes)

 

Likewise these drawings/plans had to be redesigned several times as well, the first was obviously due to the planning commission erroneous denying of the original plans, but the client was back and forth on what they actually wanted as finances were becoming an issue. We were forced to submit the building plans in phases (shell plans first) giving the client options on the interior as well as time to reorganize their financial issues. The shell plans are completed and ready to be submitted.

Contract D: CCMS & COL Construction, Inc. (Site Work / Horizontal Construction)

Executed July 7, 2010

Incomplete; Remaining work / foundation work (see notes)

 

This contractor was originally contracted and completed all of the following: site work, underground, site grading, utilities, turn lane, required signage, rebuilt junction box, asphalt driveway bib, modified & redesigned storm water catch basin & drain, Toho water shut-off valves, double safety-check valve, back-flow preventers, building fire-riser, building waste/water drain to sewer connection, building water supply line, underground electrical conduit supply lines to exterior building, concrete work (sidewalks & pads), temporary/permanent fencing and driveway gates, required drain swales, along with required sod areas.

 

During the turmoil with county and being denied the original project (10,000 s/f building & alternative parking on the client's second lot) along with the client's financial issues. We split this contract at the client's request into two separate contracts to maintain pricing by removing the foundation & slab work to be done at a later date. This left a $6,414 mobilization partial deposit on the remaining foundation & slab work (to ensure we wouldn't sub that work out to another contractor).

 

Current Status:

 

CCMS was referred to this client by another client (church) who had difficulties with both county and a few unscrupulous contractors. We were successful in obtaining a 60 day extension on an expired conditional use permit and turned in a full set of approved civil engineering plans within the allotted time frame.

 

This client (El Pan De Vida) has created an intolerable working relationship forcing CCMS to totally withdraw from the remaining project (see attached letter of withdrawal) although any/all contractual obligations were termed-out nearly a year and a half ago, we were asked to stay on to help even after the client moved forward to have the properties annexed by the city after we told them it couldn't be done, we still stayed on but over the past several months there has been far too much deceit and political in-fighting within the church itself.

 

In the past couple months the working relationship and conditions have continually deteriorated to a point of no return, as a result CCMS moved to withdraw from the remaining project (vertical construction). On October 13, 2011 we sent a registered package containing the following: all plans (both the original and revised plan applications) regarding the engineering improvements, underground and site construction (including CD), along with Osceola County, Tohopekaliga Water Authority (TWA) and South Florida Water Management (SFWM) documentation, applicable county ordinances, notes and permits including letter of withdrawal. We gave them 5 business days to respond if they didn't want us to complete the 2 remaining contracts, to which they never replied, so it was our assumption that they would have us proceed on the 2 remaining contracts. We are currently working on a church that this client (El Pan De Vida) is renting space from and according to them (the other church) they (El Pan De Vida) has a new contractor.

 

As of today several emails have been sent to the client requesting the new contractor's information so we are able to submit the sealed building/shell plans to county, as the original contractor refuses to submit under their license & insurance unless they are paid the remaining monies owed on the mobilization deposit ($7,497) for the foundation work. We have had absolutely no response from them (the client). The last email sent was marked "Final Notice".

 

Question 1 - If we send another registered letter in the form of "5 Day Cure Letter" as they are impeding our ability to complete the contract by not responding and should they fail to respond again, would that nullify our obligation to complete the remaining contracts ... if not what are our legal liabilities to them, seeing as our contract (CCMS & El Pan De Vida) is completed under the terms of that contract?

 

Question 2 - Or are we compelled to submit the plans under our license, even though we may not be able to complete the plans as we may still need to meet with them to conclude the particulars on the interior walls and spaces?

Expert:  INFOLAWYER replied 3 years ago.
Per site rules you need to post new questions separately as new posts. Thank you.
Customer: replied 3 years ago.
But will they be linked to the original questions ...
Expert:  INFOLAWYER replied 3 years ago.
Yes, they will be able to see them.
Customer: replied 2 years ago.

A 5 day letter to cure was sent to a former client regarding 2 remaining contracts to which there has been no response to date; this is the certified letter dated: 11/29/11 and received 12/2/11

 

The purpose of this letter is to communicate to you the two action CCMS is taking with regards XXXXX XXXXX referenced contracts. The first action is to notify you of a "cure notice" regarding our continued request for required and necessary information so as to submit the application for the building plans, and the second action is to tell you of CCMS' decision regarding your non-compliance and its effect on our ability to complete our remaining executed contracts.

 

Cure Notice under Article 2-2.2 Clause Default:

 

You are hereby notified that CCMS considers your performance a condition that is endangering our ability to complete and/or perform our contractual obligation of the referenced contract. Therefore, unless this condition is cured within 5 business days after receipt of this notice, CCMS will be forced to terminate the remaining two contracts (Architectural & Foundation) for default under the terms and conditions of said contracts, as without your full cooperation and communication we (CCMS) will be unable to meet our indirect contractual obligations to you/your company or our direct contractual obligations to our contractors.

 

The failures that have made this cure notice necessary are primarily your unwillingness to communicate and/or forward the required information needed to submit the signed/sealed building shell plans as depicted in a registered letter to you dated (Oct. 13, 2011) and followed up with emails dated (Nov. 11 & Nov. 18) requesting the required information.

 

In responding to this cure notice it is essential for you to, (1) provide the general contractor's information required to submit the plans, and (2) communicate in a manner that will enable CCMS to complete the remaining contracts if you so choose. It must be clearly understood that the burden of correcting performance rests with you/your company. It is also your responsibility to correct your performance so as to ensure successful accomplishment of the remaining work scope.

 

Should you have any questions or concerns regarding the cure notice or the correction of non-compliance, feel free to contact me at.

 

Question # XXXXX: Is it advised to send another and final certified letter informing them that "due to their refusal to respond to both the 5 day cure letter and the previous letter to withdraw", we have terminated both unfinished contracts and thereby assume no further liability with regard to any deposited monies and/or the completion of any unfinished work, as it appears that you have willingly and/or intentionally breach the remaining contracts; thereby impeding our ability to complete the defined scope of work.

 

Question # XXXXX: Am I liable for any monies deposited to the subcontractors?

 

Question # XXXXX: Am I obligated to turn over the signed/sealed shell plans to them?

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