HomeMy WebLinkAbout2081 from the bank. The so-called "tri-party agreement" (P-5) is
simply an assignment of the progress payments due from HILP on
the construction project to Plaintiff. Plaintiff, under this
assignment, has no greater right than Ologistics has under the
AIA contract. (P-7) Plaintiff then can ot11y recover any amounts
due under this contract. The check for $233,068 was issued by
HILP to Ologistics and the Plaintiff for Draw No. 12, under the
construction contract. As a condition to issuing this check for
Draw No. 12, a certificate of payment No. 12 dated February 27,
1978 was executed by Ologistics as a general contractor's
certificat-ioti that the work covered by this application for
payment had been completed in accordance with the contract
documents and that all amounts have been paid by it for work
for which previous certificates of payment were issued and pay-
ments received from the owner. (P-8) Attached to this certificate
of payment No. 12 was a partial waiver of lien by Deerfield Con-
struction Corp., signed by Roger Charles, waiving the right to
claim and prosecute a lien under the mechanics' lien law in the
amount of $33,950. In addition, on March 1, 1978, Ologistics
delivered to HILP a waiver by them certifying under oath that all ~
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I subcontractors and materialmen had been paid to date. (D-23) On
the morning of March 2, 1978, the same Roger Charles who had
previously executed a waiver of lien telephoned Mr. Conners, an
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employee of HILP, advising that the lien waiver signed and de-
livered for Draw No. 12 was no good and that Deerfield was owed
approximately $100,000 by Ologistics on this project for past
work done. This information by Mr. Charles caused Mr. Conners
to then telephone Sun Bank and stop payment on the $233,068 check.
Article 9.6 of the general conditions of the AIA contract pro-
vides that the architect may nullify the whole or any part of
any certificate for payment previously issued to such extent as
may be necessary in his opinion to protect the owner from loss
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because of third party claims filed or. reasonable evidence in-
dicating probable filing of such claims, or failure of the
contractor to make payments properly to subcontractors or for
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