New England Partnership, Inc. v. Rutland City School District

786 A.2d 408, 173 Vt. 69, 2001 Vt. LEXIS 273
CourtSupreme Court of Vermont
DecidedSeptember 14, 2001
Docket00-108
StatusPublished
Cited by15 cases

This text of 786 A.2d 408 (New England Partnership, Inc. v. Rutland City School District) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New England Partnership, Inc. v. Rutland City School District, 786 A.2d 408, 173 Vt. 69, 2001 Vt. LEXIS 273 (Vt. 2001).

Opinion

Skoglund, J.

In this dispute over payment due under a construction contract, appellant New England Partnership, Inc. (NEPI), architects of a building and remodeling project for appellee Rutland City School District (district), appeals the Washington Superior Court’s determination that the amount still owed on the contract to NEPI was $41,059. NEPI argues that the trial court erred in (1) its calculation of the contingent fee amount due pursuant to paragraph six of the addendum to the contract; (2) its determination of the “basic compensation” amount pursuant to paragraph 3 of the addendum agreement; (3) its calculation of the amount of prejudgment interest to be awarded NEPI; and (4) its holding that the Prompt Pay Act, 9 V.S.A. §§ 4001-4009, does not apply to paragraph 6 of the addendum. The district presents three cross-claims as well: that the trial court erred in (1) its determination that NEPI was owed any amount under the contingent fee agreement in paragraph six of the addendum; (2) its calculation of the contingent fee amount pursuant to paragraph six of the addendum; and (3) its award of attorney’s fees to NEPI. We agree with NEPI on its first, second, and third arguments, and disagree with its fourth argument as well as the arguments presented by appellee on cross-appeal. We therefore affirm the trial court’s decision in part, reverse in part, and remand.

*71 I. Factual Background

We begin with the facts, as found by the trial court, which are relevant to this appeal. On December 8,1989, the parties entered into a written agreement in which NEPI would provide the district with architectural services for the building of a new high school and the renovation of other buildings. The agreement was memorialized in a standard American Institute of Architects contract, and incorporated a budget dated November 16,1989 which had previously been developed by NEPI for the district for bond vote purposes. The agreement specified in paragraph 11.2 the “basic compensation” NEPI was to receive for its services. It stated, in pertinent part, that “basic compensation” shall be computed as “[t]he Stipulated Sum of Eight Hundred Twenty Five Thousand Dollars (Gross Fee of $853,000.00 less $28,000.00 credit for payments for pre-bond services)!.]” On May 16,1990, the parties agreed to change the compensation portion of the agreement to reflect a cost of $8,804 for insurance, resulting in a new basic compensation fee of $816,196.

In June 1990 the district’s Act 250 permit request was denied. In August, when it appeared that it would be some time before the permit would be obtained, NEPI stopped working on the plans for the high school. In January 1991, NEPI informed the district that when the project resumed its fees would need to be increased as a result of the delay.

The Act 250 permit was granted in the summer of 1992, and NEPI resumed work on the drawings. On July 23,1992, NEPI informed the district of what would be necessary to complete the project, and that completion would cost the district $466,373 in additional fees above and beyond the original contract amount. Despite NEPI’s letter providing a description of the bases for these increased costs, the district was upset over this increased amount, finding it difficult to understand why, with the construction drawings 58% complete, so much in additional fees was necessary.

On July 28, NEPI provided a new budget which called for a total project cost of $16 million — substantially higher than the $8.7 million project cost at the time of the bond vote. The district requested that NEPI come up with a fixed fee for the completion of the project, and during the next three months NEPI worked with the district to develop a budget and scope for the project that would be in balance with the district’s available funding. On September 14, a budget in line with the available funding was presented to the district, with *72 construction costs for the high school at $9,002,000, not including a four-percent construction contingency. The budget included a fixed fee for NEPI’s services for the entire project at $1,095,585, plus $91,475 in start-up costs. At this time, NEPI indicated that it was willing to address the issue of the near $150,000 in project suspension costs by making payment for them contingent on the project being bid below the budget for construction.

On October 13,1992, the parties met to negotiate a revised contract, as the original agreement was due to expire. As a result of these negotiations, on November 23,1992 the parties agreed on the terms of an addendum to the contract. Subsequently, the district contacted a construction company to manage the construction project, and on April 13, 1993- the district and the construction company agreed on a “guaranteed maximum price” (GMP) for the overall project of $10,183,406, including a guaranteed maximum price of $8,759,405 for construction of the high school portion of the project. The construction project agreed to with the construction company differed from that planned by NEPI, as the district specifically eliminated from this later agreement certain items present in the NEPI plans and drawings in order to ensure that the district would have money left over. The project then went out for bidding, and the project, as bid on, resulted in a savings of $342,760.

On July 12, 1993, NEPI submitted a bill to the district for the contingency fee called for under paragraph six of the addendum. The bill referred to $9,001,500 as the amount by which the contingency was to be calculated, and claimed that the GMP, as adjusted for bid savings, was below this amount. The district did not pay the bill for the contingency.

II. NEPI’s Claims on Appeal

NEPI first argues the trial court erred in calculating the suspension contingency amount as described in paragraph six of the addendum. Paragraph six provides:

Owner agrees to pay Architect additional contingent compensation over that already set out above. The contingent compensation will be 50% of the amount, if any, by which the high school GMP, as adjusted through completion of bidding, is lower than the October 13, 1992, estimate, attached hereto, up to a maximum contingent compensation of $50,000.00. For example, if the adjusted GMP is $50,000.00 lower than the *73 October 13,1992 estimate, Architect will receive $25,000.00, if the adjusted GMP is $101,000.00 or more lower than the October 13, 1992 estimate, Architect will receive only $50,000.00. The calculation of the contingent compensation wül be made at the completion of bidding and payment shall be made out of initial bond proceeds.

NEPI claims that the trial court erred in adjusting the “high school GMP” upwards, as there was no provision in the addendum for such an upward adjustment.

We note initially, as to NEPI’s claims that paragraph six does not provide for any upward adjustment of the “high school GMP,” that the addendum does not specifically state that the adjustment to be made at the completion of bidding is limited to decreasing the “high school GMP” amount. NEPI’s proposed construction of the phrase “as adjusted through completion of bidding” allows only a downward adjustment of the high school GMP. NEPI does not, however, indicate whether this argument was, if ever, presented to the trial court.

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Bluebook (online)
786 A.2d 408, 173 Vt. 69, 2001 Vt. LEXIS 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-england-partnership-inc-v-rutland-city-school-district-vt-2001.