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Where Architect Has Termination Power, Owner?s Rights Are Limited

Monday, May 02, 2011 05:58 am


Conditions Precedent

The Town Of Plainfield, Indiana v. Paden Engineering Co., Inc., 2011 Ind. App. Lexis 235 (Feb. 25, 2011)

In contracts requiring an architect?s blessing before an owner terminates the contractor, that blessing must take the form of a certificate--no informal letters or emails will do.

The Town of Plainfield, Indiana (Plainfield) hired Paden Engineering Co. Inc. (Paden) for a recreation/aquatic center construction project. After disputes over delays, Plainfield terminated the contract and sought recovery under the contractor?s performance bond. But Plainfield hit a brick wall: the conditions precedent.

To terminate, the contract required Plainfield to provide Paden with seven days written notice and an architect?s certification. Paden issued proper notice to the contractor (although not to the bond sureties) but did not provide an architect?s certificate. The court determined that an email from an employee of the project architect stating that Paden "continue[s] to multiply the challenges with completion of the project" did not constitute a certificate. Altho [...]

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