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No Legal Exposure for Pausing Middle School Project
Written by Bradley Schlegel, Staff Writer
2017-11-29

New board member says no financial penalty for halting construction.

 

            The decision to pause the construction of a new middle school on Montgomery Avenue in Upper Hanover won't create any legal exposure for the Upper Perkiomen School District, according to Melanie Cunningham, one of three newly elected school board members.

            Cunningham claims her personal attorney examined the general construction, HVAC, plumbing and electrical contracts and discovered no termination clauses that would require the district to pay the contractors if they are ordered to stop working.

            She said the language contained in the general construction contract allows the district to stop or pause the project at its convenience. According to Cunningham, the district would only be required to pay the contractor for the work it has completed.

            A portion of the district's general construction contract with Boro Developers – obtained by the Town and Country – states that if the board decides to terminate the project, "the contractor shall be entitled to receive payment for work completed … in accordance with the contract documents. The contractor shall not be entitled to any other compensation, including without limitation, for field or office overhead or profit … for work not executed, termination expenses or damages."

            The contract allows the district to "without cause … suspend, delay or interrupt the contract in whole or in part for such a time as the owner may determine. In such event, the contractor would be entitled to an equitable extension of the contract time … but shall not be entitled to any adjustment of the contract sum."

            Similar language exists in the HVAC, plumbing and electrical contracts related to the project to build a new school for sixth, seventh and eighth graders, according to Steve Cunningham, one of three new board members elected earlier this month.

            "All contractors signed the same conditions," he wrote into a Nov. 24 email. "And since the other three contractors haven't started any work, there would be no cost to pay."

            Ken Roos, the board's solicitor, authenticated of the contract language. In an email received Monday morning, Roos confirmed that all four contracts contained "similar conditions."

            Late last week, Melanie Cunningham reaffirmed the intent of the newly constituted school board to pause the construction during its reorganization meeting at 7 p.m. Dec. 4 at Upper Perkiomen High School.  The three newly elected members – Melanie Cunningham, Steve Cunningham, and James Glackin – along with re-elected incumbent Kerry Drake, successfully ran on a platform opposing the middle school project. Current member Raeann Hofkin also has vocally opposed the project. 

            "There's nothing that could change my mind between now and Dec. 4," Melanie Cunningham said the day after Thanksgiving. "The five of us are on the same page."

            According to Melanie Cunningham, the vote to pause the project will trigger a series of related tasks for the new board. She said that includes an audit of the money spent on the new middle school, further analysis of the current middle school by a facilities expert and possibly a public forum to discuss future expansion options.

            The new members have discussed the possibility of implementing a kindergarten center at the district's education headquarters on East Buck Road in Upper Hanover and approving a small addition at Marlborough Elementary, according to Melanie Cunningham. She said they haven't ruled out some kind of construction on the site where the new middle school is being built.

            Hofkin declined to comment. However, she stated that the reorganized board would present a statement during the n


 

 

 

 

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