Allstate Interiors & Exteriors, Inc. v. Stonestreet Construction, LLC (907 F. Supp. 2d 216, 2012)

DECISION AND ORDER

MARY M. LISI, Chief Judge.

This litigation arose from a hotel construction and renovation project (the “Project”) in Providence, Rhode Island. The case was originally filed in this Court by a subcontractor on the Project, Allstate Interiors & Exteriors, Inc., (“Allstate”), against general contractor Stonestreet Construction, LLC (“Stonestreet”) for “an outstanding balance due and owing” in connection with a subcontract between Allstate and Stonestreet. Allstate Complaint ¶ 8 (Docket # 1). Stonestreet, which asserted counterclaims against Allstate, also brought third-party claims against the owner of the Project, Weybosset Hotel, LLC (“Weybosset”). Allstate, however, is only a minor player in this litigation, the core of which lies in the claims which Stonestreet and Weybosset have asserted against each other. Those claims were litigated before the Court in a trial without a jury, after which the parties submitted extensive posttrial memoranda. The Court’s Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a) are set forth below.

I. Procedural History

On June 26, 2009, Allstate filed a complaint against Stonestreet, seeking payment of $244,725 for labor and materials it provided to the Project. On September 3, 2009, Stonestreet filed its answer and it asserted a counterclaim, in which it generally alleged that Allstate failed to perform work pursuant to the subcontract agreement between the parties. On September 14, 2009, Stonestreet filed a third-party complaint against Weybosset for breach of contract, breach of good faith and fair dealing, unjust enrichment, tortious interference with contractual relations, and indemnification. According to the third-party complaint, Weybosset failed to make payment to Stonestreet for sums due under the construction contract (the “Contract”) between the parties, “including sums that may be due for Allstate’s work on the Project,” Third-Party Complaint ¶ 10 (Docket # 9). Stonestreet also asserted that -it “is entitled to payment from Weybosset before Stonestreet is required to pay Allstate.” Id. ¶ 12. While Stonestreet’s complaint did not specify the amount it sought from Weybosset, Stonestreet was essentially seeking the difference between the payment to which Stonestreet believed it was entitled under the Contract, and the amount it was actually paid by Weybosset, or approximately $1.5 million.

Specifically, Stonestreet alleged that, instead of paying Stonestreet sums due under the Contract, Weybosset contacted “certain of Stonestreet’s subcontractors on the Project, making representations and negotiating with those subcontractors, paying subcontractors discounted amounts, and interfering with Stonestreet’s subcontractor relations.” Id. ¶29. Regarding the indemnification claim, Stonestreet asserted that “Weybosset’s failure to pay Stonestreet caused Stonestreet to breach its subcontract with Allstate and/or other subcontractors on the Project,” and that Stonestreet was entitled to indemnification by Weybosset for damages sustained from such breaches. Id. ¶ 32.

Although Allstate’s claims were resolved by payment in full shortly after commencement of this litigation, Allstate elected not to dismiss its complaint in light of Stonestreet’s continuing counterclaims. On November 12, 2009, Weybosset filed a motion to dismiss the third-party complaint for “lack of an independent basis of jurisdiction.” Mot. Dismiss 1. Following a hearing on January 21', 2010, this Court denied Weybosset’s motion on the ground that Stonestreet’s claims against Weybosset were “inextricably intertwined” with the claims that fell in this Court’s diversity jurisdiction. Allstate Interiors & Exteriors, Inc. v. Stonestreet Constr., LLC, No. C.A. 09-283-ML, 2010 WL 695808 at *4.

The parties engaged in extensive discovery, in the course of which Stonestreet amended its third-party complaint by adding First Bristol Corporation (“First Bristol”) and J. Karam Management (“JKM”) as defendants in connection with Stonestreet’s tortious interference claim. (Docket # 47). Stonestreet alleged that First Bristol had a substantive role in the negotiations between Weybosset and Stonestreet’s subcontractors, and that payments to the subcontractors were made by checks written from JKM’s accounts.

Weybosset, on its part, restated its counterclaims against Stonestreet for breach of contract, indemnification (with respect to Stonestreet’s contractual obligation to pay its subcontractors), breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty (alleging that Stonestreet failed, upon receipt of payment from Weybosset, to hold monies in express trust for its subcontractors.) (Docket # 56).

On April 8, 2011, Weybosset filed a motion for partial summary judgment with respect to $1,016,499 in subcontractor costs that Stonestreet sought to recover under the Contract, but which Weybosset had already settled by direct payment of $893,521 to Stonestreet’s subcontractors. (Docket # 92). Following a hearing on October 4, 2011, the Court took the motion under advisement after indicating to the parties that it would grant Weybosset’s motion, at least, in part. Following the parties’ unsuccessful attempt to settle the case, the Court granted Weybosset’s motion with respect to the $893,521 it had paid to the subcontractors. The Court reserved all other issues for trial.

Subsequently, the Court granted a joint motion by Allstate and Stonestreet to submit their claims and counterclaims against each other by written submission for determination after the claims between Stonestreet and Weybosset had been decided. Stonestreet and Weybosset also agreed to have the case heard by this Court without a jury. The Court conducted a ten-day trial, during which the parties presented eleven witnesses and more than 160 exhibits. The parties filed extensive posttrial memoranda on May 25, 2012, and further responses on June 29, 2012.

II. Factual Background

Weybosset owns certain property located in Providence known as the Hampton Inn & Suites (the “Property”). The construction project at issue ..in this case involved the renovation of an existing 11-story historic building and the construction of a matching 10-story addition. Following a bidding process, Stonestreet was awarded the job of constructing and managing the Project. The operative document in this litigation is a November 2007 construction agreement (the “Contract”), Ex. 1, between Stonestreet. and Weybosset, pursuant to which Stonestreet was to serve as the construction manager and provide general contractor services to improve the Property. Because Stonestreet’s bid of $12.2 million exceeded Weybosset’s budget by approximately $1 million, Weybosset sought to reduce costs through “value engineering,” ie. by using less expensive construction methods and materials, for example, the use of brick veneer instead of real brick and employment of nonunionized subcontractors.

The Contract between Weybosset and Stonestreet is the A121 “Standard Form of Agreement between Owner and Construction Manager (where the Construction Manager is also the Constructor)” (the “A121”). Ex. 1 SS038790-SS038804. Section 1.2, titled General Conditions of the Contract, provides that “[f]or the Construction Phase, the General Conditions of the contract shall be the AIA Document A201,” which is incorporated by reference. Document A201 (the “A201”) is attached to the Contract, Exhibit No. 1, SS0038805-SS038838, together with Exhibit No. 1 thereto, which specifies the “Final GMP” [Guaranteed Maximum Price] for, Stonestreet’s work on the Project, id. at SS038840, and the post bid estimate for the Project, id. at SS038841-SS038846. Additional exhibits to the Contract include the Project Schedule, Exhibit No. 2 at SS038847-SS038849, the List of Architectural Drawings and the Architect’s Project Manual, Exhibit 3 at SS038850, Stonestreet’ Qualifications and Assumptions, Exhibit No. 4 at SS038851-SS038858, and a Contractor’s Letter issued by Stonestreet to the lender of the construction loan for the Project, Exhibit No. 5 at SS038860-SS038862. Pursuant to the Project Schedule set forth in Ex. No. 2 to the Contract, Stonestreet was required to obtain a final Certificate of Occupancy (“COO”) by November 25, 2008. Ex. 1 at SS038849.

The Guaranteed Maximum Price (“GMP”) was defined in § 5.2.1 of the A121 as the sum of (1) the “Cost of the Work” and (2) the “Construction Manager’s Fee.” The Contract specified that the GMP “was not to exceed the amount provided in Exhibit No. 1, subject to additions and deductions by changes in the Work as provided in the Construction Documents.” Exhibit 1 states as the “Final GMP, Dated October 3, 2007, Modified October 25, 2007: $11,250,000.” Included in this amount were six items marked “Owner’s Budget,” which reflected costs associated with winter conditions, roofing, doors, painting, fire protection, and HVAC. Note 1 to Exhibit No. 1 provided that “[i]tems marked owner’s budget will be allowances and any cost savings will go directly back to the owner and the GMP will be reduced. No reduction of fee or general conditions will be required if owner items are lowered in costs.” Ex. 1, SS038840. A lump sum of $809,888 was included in the GMP as “General Conditions,” id. at SS038840.

The GMP was subject to adjustments by “Change Order Requests” (“CORs”), pursuant to which Stonestreet could seek additional funds in the event the cost and/or time requirements of the Project changed. Generally, such CORs were prepared by Stonestreet and then presented to Weybosset for approval. The CORs were reviewed and, if agreed to, approved and signed on behalf of Weybosset by Ed Landry (“Landry”), a First Bristol employee who served as V.P. of Construction on the Weybosset Project. Ex. 84; Tr. vol. 7, 102:13-20 (Mar. 28, 2012). As a reasonable allowance for overhead and profit, Stonestreet was entitled to an up-charge of 4% for overhead and a 6% fee for CORs greater than $5,000, and 9% for overhead and a 6% fee for CORs less than $5,000. A121, § 5.3.3, Ex. 1 SS038797.

In addition, as set forth in § 5.1.1 of the A121, Weybosset agreed to pay Stonestreet for the work (the ‘Work”) described therein “the Contract Sum consisting of the Cost of the Work as defined in Article 6 and the Construction Manager’s Fee determined as follows: Lump Sum $430,750.” Id. SS038796. The Work was defined as the construction and services required by the Contract Documents and included labor, materials and services to be provided by Stonestreet to fulfill its obligations. Contract § 1.1.3., Ex. 1, SS038813.

Pursuant to Stonestreet’s Qualifications and Assumptions, incorporated into the Contract as Exhibit No. 4, all engineering and architectural work was excluded. Ex. 1, SS038853. With respect to the electrical component, although Stonestreet was responsible for distribution, lighting and power, id. at SS038857, “[p]rimary service, cable and transformer [were] not included.” Id. at SS038858.

The Qualifications and Assumptions also noted that, although the proposed Project Schedule was for 12 months from commencement of the Work, Stonestreet required “approved building plans which show value[ ] engineering plans in order to maintain its schedule.”

Article 6 of A 121, titled Cost of the Work for Construction Phase, defined “Cost of Work” in § 6.1.1. as “costs necessarily incurred by the Construction Manager in the proper performance of the Work ... The Cost of Work shall include only the items set forth in this Article 6.” Id. SS038797. Such costs, which were further described in detail in the respective subsections of Article 6, included: Labor Costs, Subcontract Costs, Costs of Materials and Equipment incorporated in the completed construction, Costs of other Materials and Equipment, Temporary Facilities and Related Items, Miscellaneous Costs, Other Costs, and Emergencies and Repairs. § 6.1.2.-6.1.8. Id. at SS038797-SS038798. Subcontract Costs were defined in A121 § 6.1.3 as: “[p]ayments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts.” Id. at SS038797.

Stonestreet hired subcontractors (the “Subcontractors”) for the performance of the Work, using standard subcontracts (the “Subcontracts”), which contained so-called “pay-when-paid” provisions. Every 30 days, Stonestreet submitted requisitions for payments to Weybosset, which included a description of the Work and the progress that had been made. If Weybosset challenged the completion status, the matter would be discussed and, if no agreement was reached, Weybosset would not sign the application.

Progress Payments were to be made according to § 7.1.1 of the A121: “Based upon Applications for Payment submitted to the Owner by the Construction Manager, the Owner shall make progress payments and final payment as provided below and elsewhere in the Contract Documents.” Id. at SS038799. Pursuant to A201 § 9.5.1., “[t]he Owner may also withhold payment as may be necessary to protect the Owner from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Section 3.3.2, because of ... failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment. Id. at SS038828.

Initially, work progressed smoothly. By July 2008, overall completion was at 60%, Ex. 110, WH-004010, and by August 31, 2008, drywall was 90% complete and painting had begun. Id. SS8021. According to Patrick, the Project ran into difficulties in the summer when, contrary to Stonestreet’s expectations, permanent power was not delivered to the Project. Tr. vol. 1, 127:24-128:11 (Mar. 20, 2012). As Patrick explained in some detail, once the building was fully framed and closed, permanent power was necessary to finish electrical and mechanical components, as well as fire alarms. Id. 128:13-25. Although temporary power was supplied from the existing building to the new structure, the supply was inadequate because most of the power had to be dedicated to the elevators and the heating system, leaving little for lighting the building. Id. 129:15-130:10.

Patrick’s involvement in the Project increased during that time to ensure the proper construction of an electrical vault (the “Vault”), which had to be located underneath the sidewalk. Id. 131:10-132:13. In connection with the Vault, Stonestreet generated a Request for Information (“RFI”) on July 7, 2008, stating that construction of the new sidewalk and concrete masonry unit could not proceed until National Grid had signed off. It also noted that Stonestreet still awaited the mechanicals for the Vault. Ex. 16. According to Patrick, Stonestreet did not receive a response until September 12, 2008. Tr. vol. 1, 135:2-5. Previously, on August 26, 2008, Stonestreet had submitted a COR for adding the construction of the Vault to the Contract. COR 28, Ex. 84, SS20885. Although Weybosset did not sign off on COR 28 until October 9, 2008, Stonestreet continued working on the Vault because it was critical to the Project. Tr. vol. 1, 135:18-135:19.

A Project Schedule, updated on October 27, 2008, reflected an extended COO date of January 28, 2009, based on Stonestreet’s new assumption that permanent power would be supplied to the Project by December 1, 2008. Ex. 24. Fire alarm testing and the elevator inspection were assumed to be completed by January 7, 2009, and January 14, 2009, respectively. Id. None of these dates were met because permanent power was not supplied until January 6, 2009.

By December 28, 2008, the GMP had been increased by $568,907 in approved change orders for a total GMP of $11,818,907. Ex. 40 p. 2. At that time, the work on the exterior shell of the building was substantially complete, as was site work at the main entry. However, National Grid had not yet completed the new permanent electrical service for the building. Id. at 3. According to the December 2008 construction report prepared by Robert H. Douglas (“Douglas”), the advisor to Weybosset’s construction lender, the new delay in implementing permanent power was attributable to a major winter storm which required National Grid service and repair crews to work on power restoration in the area. Id. A letter dated December 29, 2008 from the Project architect, Newport Collaborative (the “Architect”), opined that a temporary COO could be issued for the purpose of training hotel personnel in the building. Ex. 41, SS011243. An enclosed Completion Schedule prepared by Stonestreet reflected that, although exterior work was finished, other activities still needed to be completed, particularly on the mezzanine, first floor, basement, and stairs. Id. at SS011244-SS011247.

Stonestreet sought to extend its Contract time based on change orders that extended the COO date and in light of the delay in supplying primary power to the Project. Tr. vol. 1, 150:1-5. On December 4, 2008, Stonestreet generated COR 127, which estimated an extension of the Project completion date to January 23, 2009 and a resulting increase in the cost of General Conditions by $138,612. Ex. 38. COR 127 also listed those CORs that had previously requested time extensions and that were, with the exception of COR 126, signed by Ed Landry. Ex. 84.

Although Weybosset did not respond to COR 127, according to Patrick, Weybosset did not advise Stonestreet that Stonestreet would not get paid. In an attempt to resolve the matter, the parties met and, according to Stonestreet, it was agreed that Stonestreet would receive half of the General Conditions for December 2008 and that COR 127, together with backup information, would be submitted to the Architect for review, as provided for in Article 4 of the Contract. Tr. vol. 1, 155:10-156:10.

After primary power had been delivered on January 6; 2009, Stonestreet continued finishing work on the Project. A January 7, 2009 e-mail from Patrick to Landry and James Karam (“Karam”), part-owner and manager of the hotel, informed Weybosset that Stonestreet was scheduled to complete its work by January 31, 2009, which allowed pre-testing of the fire alarms and City inspections in the first half of February. Patrick projected a-final COO for February 13, 2009. Ex. 45.

By letter dated January 13, 2009, Patrick requested a determination from the Architect on Stonestreet’s request to extend the time for receipt of a COO until February 13, 2009, based on the late delivery of permanent power. In response, by letter dated January 29, 2009, Weybosset informed Stonestreet that, under the Contract, the Architect had no authority to decide or act on Stonestreet’s request. Ex. 51. Weybosset also requested the most current Project Schedule, a breakdown of the General Conditions claimed in connection with the extension, and copies of Subcontractor documents so it could review Stonestreet’s request. Id.

On February 9, 2009, Stonestreet submitted its January pay application for $205,974. Ex. 58. The application was not paid by Weybosset. Work continued on the Project, where difficulties were encountered in connection with the fire alarm system. Weybosset complained about the lack of manpower on the job, in response to which Patrick pointed out that no clear instructions had been received by Stonestreet for the fire alarm system. Ex. 53. Patrick also noted that a COR remained outstanding and needed to be signed “with' a time extension,” before any work on the system would be continued. Id. at WH-001505-WH-001506.

A report issued by Douglas on February 8, 2009 reflected an increase of the GMP to a total of $11,938,990. Ex. 57 p. 2. In the report, Douglas stated that the construction at the hotel was substantially complete and that, “[sjince the permanent power has been energized at the end of December, the electrical contractor has been proceeding to complete the tie-ins for the new electrical services as well as the completion of the fire alarm service.” Id. at 3, WH-002114.

On February 24, 2009, a temporary COO was issued. Ex. 68. On February 27, 2009, the Department of Inspection and Standards certified the Property as substantially complete as of December 30, 2008. A Certificate of Occupancy (“COO”) was issued on March 20, 2009. Ex. 71.

On March 17, 2009, Stonestreet submitted pay application No. 16 for the sum of $1,110,550, together with a printout from its • Timberline cost accounting software, detailing the scheduled and revised scheduled value of a particular type of work, as well as amounts paid and those still outstanding. Ex. 68. The application was not paid by Weybosset. Tr. vol. 2, 42:1-3 (Mar. 22, 2012). On March 30, 2009 Stonestreet submitted a request for additional extended General Conditions for the Project. Ex. 73. The updated version of COR 127 requested a time increase of three months beyond the November 25, 2008 date. Id. at SS0078212. An attached Executive Summary detailed how the late delivery of permanent power and difficulties with obtaining a final design for the fire alarms contributed to the delay in issuance of the final COO. Id. at SS0078216-SS0078219. Stonestreet also enclosed copies of CORs which requested various time extensions and which were all signed by Landry as approved: COR 8 (2 days); COR 12 (12 working days); COR 13 (4 working days); COR 14 (credit of 2 days); and COR 84 (“project substantial completion delayed to 2/24/09”). Ex. 84.

Around that time, a number of Subcontractors placed liens on the Property because they had not been paid by Stonestreet. Pursuant to Article 11 in the standard form Subcontracts used by Stonestreet, although Stonestreet agreed to “make progress payments on account of the [Subcontract Price,” Article 11 also included the following pay-when-paid clause: “It is agreed that the Contractor [Stonestreet], as a condition precedent to payment of any monies which become due to the Subcontractor, must first receive payment from the Owner.” Art. 11.1, Ex. 1001 SS014369. Although Article 6 of the Contract between Weybosset and Stonestreet included “Subcontractor Costs” under the Heading “Costs to be Reimbursed,” there is no explicit requirement in the Contract that Stonestreet first pay its Subcontractors before it receives a “reimbursement” payment from Weybosset. Rather, Stonestreet was required to “promptly pay each Subcontractor, upon receipt of payment from [Weybosset], out of the amount paid to [Stonestreet] on account of such Subcontractor’s portion of the Work, the amount to which said Subcontractor is entitled.” Contract § 9.6.2. As this Court previously determined, Stonestreet was not entitled to be “reimbursed” for any Subcontractor costs which had been paid directly to the Subcontractors by Weybosset. See Docket Entry 02/28/12.

In general, the “pay-when-paid” clause in the various Subcontracts was not entirely compatible with the payment schedule under the Contract, which was based on overall progress of the Project. If a payment application or COR was denied by Weybosset, Stonestreet, rather than pay its Subcontractors out-of-pocket without knowing whether or when it would be properly reimbursed, did not pay its Subcontractors, relying on the “pay-when-paid” provision in the Subcontract. As a result, Subcontractors were not not getting paid after their work was completed. Tr. vol. 2, 53:15-54:2, Ex. 80. In May 2009, Stonestreet contacted Weybosset and demanded direct payment from Weybosset so it could pay the Subcontractors. Ex. 80. Stonestreet also alluded to claims of tortious interference by Weybosset with Stonestreet’s Subcontracts. Id. Weybosset, however, made no further payments to Stonestreet and, faced with liens filed by the Subcontractors, paid them directly, but at a substantially discounted rate.

By the summer of 2009, communications between the parties had completely broken down and, after several attempts at mediation were unsuccessful, the instant litigation was initiated by Allstate, one of Stonestreet’s Subcontractors. As noted, although Allstate’s claims were satisfied in full early on in this litigation, Stonestreet maintained its counterclaim against Allstate and then raised its own breach of contract claim against Weybosset in this forum.

III. Stonestreet’s Breach of Contract Claim

A. Adjustments to the GMP

In calculating the extent of its damages claim, Stonestreet first listed all approved CORs that resulted in reductions and increases in the GMP. The original GMP for the Project was set at $11,250,000. Ex. 1 SS38840. The GMP was reduced by $91,076 in allowance adjustments for items such as site work, landscaping, and doors, which were completed for less than what was estimated in the allowance. Ex. 107. For example, the largest item in this category was the allowance for doors, which was estimated at $284,714. The actual cost of those doors per Subcontract with Horner was $234,500, resulting in a credit to Weybosset and a corresponding reduction in the GMP of $50,214. The change in the door allowance, documented in COR 99 was, like every change in this category, approved by Landry. Ex. 84 (comprising copies of all signed CORs in sequential numerical order).

Similarly, Stonestreet assigned a credit to Weybosset for Scope of Work items, which further reduced the GMP by $60,687. Ex. 107. The largest item in this category related to the cost of sheeting. COR 6, Ex. 84. Sheeting costs had been estimated at $55,011, but, as the sheeting had apparently not been required as anticipated, the actual cost was $8,457.98, resulting in a credit to Weybosset in the amount of $41,053.02 and a corresponding reduction in the GMP. All changes in this category were based on approved and signed CORs. Ex. 84.

B. Approved CORs

The next category on which Stonestreet’s damages claim is based includes a large number of approved CORs, each reflecting an increase in the cost of Scope of Work, totaling $990,239. Ex. 107. The largest of these items relates to the construction of the electrical Vault. Ex. 84, WH-020885. The category also includes a credit to Weybosset for $36,000 that accounts for a partial payment of the General Conditions which Weybosset agreed to pay to Stonestreet in December 2008. Accordingly, COR 127, issued on December 4, 2008, reflects that the total amount requested by Stonestreet for General Conditions beyond the completion date of November 25, 2008 was reduced by $36,000 “previously approved in req. # 4.” Ex. 96.

In support of its claim for approved increases, Stonestreet presented 162 CORs that, with the exception of COR 127, were signed by and approved by Ed Landry in his capacity as V.P. of Construction on the Weybosset Project. At trial, Landry identified himself as the “Owner’s representative.” Tr. vol. 7, 102:17-20, 104:20-22. Landry took some issue with the COR approval process by pointing out that some CORs were included in requisitions (where, he alleged, they did not belong). He also noted that there were only a few CORs prior to October 2008, but that they then became more frequent, resulting in changes to the requisitions, Tr. vol. 7, 157:24-158:6. However, the undisputed fact remains that these CORs were signed by Landry on Weybosset’s behalf. Based on the approval of those CORs, Stonestreet was entitled to payment of, and the GMP was increased by, $990,239 for work reflected by the approved CORs. Ex. 107 at 5. The resulting revised approved GMP, when reduced by a total credit of $151,763 ($91,076 in Allowance Adjustments + $60,687 in Scope Credits) and increased by approved CORs totaling $990,239, was $12,088,476 ($11,250,000 - $151,763 + $990,239).

C. Allowance Changes

Stonestreet also seeks $38,241 in “Allowance Changes” that were not approved by Landry or anyone else on behalf of Weybosset. In that category, the largest item is actually a credit to Weybosset for final adjustment for “Winter Conditions.” According to Stonestreet’s Timberline Cost System, of the $50,000 allowed for Winter Conditions, only $18, 947 had been spent by completion of the Project, see Ex. 89, SS101330, and a credit of $31,053 was due Weybosset. It is unclear why the credit for Winter Conditions was not claimed by Weybosset. As Patrick explained, Winter Conditions constituted an allowance item that was not included in the lump sum for General Conditions. Tr. vol. 2, 174:6-16, Ex. 1 SS038840. At trial, Landry testified that there was “no reason, why it should be pending other than I didn’t have proper documentation to show what was paid.” Tr. vol. 9, 60:4-14 (Apr. 2, 2012). In light of Stonestreet’s contention that the Winter Conditions Allowance constitutes a credit to Weybosset, and no suggestion by Weybosset to the contrary, the GMP is subject to a $31,053 adjustment in Weybosset’s favor. See Note 1 to Exhibit No. 1 to Contract, Ex. 1 at SS038840.

Stonestreet claims four other Allowance Changes:

(1) $29,417 for Roofing, set forth in COR 62D, Ex. 87, that was not approved by Weybosset. Specifically, Stonestreet alleged that the actual cost of $201,685 exceeded the Roofing Allowance of $175,000, resulting in additional costs of $26,685, on which Stonestreet tacked 4% in overhead costs and a 6% fee, for a total of $29,417. Ex. 87, Ex. 1033.

(2) $13,557 for Doors, set forth in COR 99A, ex. 88. From the base Contract Allowance of $284,714, a credit of $50,214 was applied, resulting in an approved Allowance of $234,500 per COR 99, Ex. 84 at SS035753. The actual cost of the doors was $246,798 leaving an overage of $12,298, to which Stonestreet applied 4% overhead costs and a 6% fee for a total of $13,557.

(3) $22,804.25 for .Painting, as reflected by COR 100C. Weybosset’s Painting Allowance was initially set at $250,000, but it was subsequently reduced by two approved adjustments in COR 100 and COR 100A, respectively, Ex. 84 at SS035787, SS035766, resulting in a reduced Allowance of $245,736. Ex. 90 at SS210329. The final cost of painting was $266,422, resulting in an overage of $20,686, plus overhead and fee, for a total of $22,804.25.

(4) $3,515.31 for HVAC Allowance, set forth in COR 102A. The original Allowance of $1,250,000 was increased by $5,500 per approved COR 102 and by a $47,495 credit from the plumbing Subcontractor who asked that the gas piping activity be taken out of his Subcontract and added to that of the HVAC Subcontractor. The resulting Allowance for HVAC work of $1,306,337.50 was exceeded by $3,042.50, to which Stonestreet added 9% overhead (applicable to CORs for less than $5,000) and a 6% fee for a total of $3,515.31.

In connection with Stonestreet’s claims for Allowance adjustments which, in the absence of Weybosset’s approval, remained pending, Patrick based the total costs of each item on the applicable Subcontracts and the invoicing from the respective Subcontractors compared to the scope of work as reflected by the Timberline reports.-Tr. vol. 2, 87:25-88:8. Although it was not established at trial that Stonestreet actually paid the Subcontractors for work that exceeded the Allowance limits, payment by Stonestreet to the Subcontractors was not a condition precedent to receiving payment from Weybosset for work performed. Moreover, even if Weybosset paid Subcontractors directly for work, the cost of which exceeded the specified Allowance, it received a credit for those direct payments, which results in a corresponding downward adjustment of the GMP.

Patrick conceded that the specific Timberline printouts attached to CORs 62D, 99A, and 102A were generated after January 31, 2011, but he maintained that the information supporting, Stonestreet’s request was previously submitted to Weybosset and no testimony was given to the contrary. Tr. vol. 5, 31:1-33:3 (Mar. 26, 2012).

Regarding COR 62D, the Contract provided for a Roofing Allowance of $175,000, which was incorporated in Weybosset’s budget as part of the GMP.- Ex. 1 SS038840. As is apparent from COR 62A and the attached Timberline printout, the contract for roofing work was awarded to John F. Shea (“Shea”). Ex. 87. At some point, changes were approved by Weybosset which resulted in costs exceeding the Roofing Allowance. CORs 62, 62A, 62B, Ex. 84 at SS016370, SS034104, SS01720809, SS017205. Pursuant to COR 62, related to the cost for Shea Roofing and Shea Metal Siding, Weybosset approved an increase of $14,400 for total roofing costs of $189,400 (the $14,400 amount was further enhanced by Stonestreet’s overhead costs and fees to a total of $16,610). Ex. 84 at SS016370. COR 62B, which reflected the approved roofing cost increase from $175,000 to $189,400, requested and was approved for an additional $17,486.82, with 10% adjustment for Stonestreet’s overhead and fees included. Id. at SS07208. Finally, COR 62C reflects a credit of $676.68 to First Bristol for certain repairs that Shea made to the roof. Id. at SS017205. As such, the costs related to roof work, which are documented in approved CORs, actually exceeded the allowance adjustment sought by Stonestreet:- As noted before, payment to the appropriate Subcontractor was not a condition to adjusting the allowance and the correctness of Stonestreet’s cost analysis was not substantively challenged at trial.

With respect to COR 99A relating to Weybosset’s Door Allowance, Stonestreet sought an upward adjustment of $13,053. The Door Allowance, set forth in Exhibit No. 1 to the Contract, was budgeted at $284,714. Pursuant to COR 99, approved by Landry, a credit was due Weybosset by Subcontractor Horner in the amount of $50,214. Ex. 84 at SS035753. The actual costs for the doors, based on invoices submitted by Horner and Madaio Glass, Inc., totaled $246,798, for a difference of $13,557.31, including overhead and fee. Again, it is noted that there was no evidence that Stonestreet actually paid for this work. Moreover, Horner and Madaio, like Shea, belong to the group of Subcontractors that were paid by Weybosset directly for some of their work (although not necessarily the work reflected in COR 99A). Nevertheless, the actual cost of the doors was not challenged by Weybosset at trial and, if the cost was included in the direct payments Weybosset made to Subcontractors, then, as determined on summary judgment, such payments resulted in a credit to Weybosset and a reduction of the GMP. In other words, there is no reason to reduce the GMP twice for the same costs, once by giving credit to Weybosset for amounts paid, and, secondly, by denying Stonestreet’s request to amend the Allowance by costs that, as supported by Subcontractor’s invoices, exceeded the contractual Allowance amounts.

Finally, with respect to COR 102A, related to Weybossefis HVAC Allowance, Stonestreet seeks $3*515 in additional costs. Pursuant to the Contract, the HVAC Allowance was set at $1,250,000. Ex. 1, SS038840. COR 102, approved by Landry, reflects that, although the Air Masters HVAC Subcontract was for $1,291,000, a credit of $36,000 was given, resulting in costs exceeding the Allowance by only $5,000, to which Stonestreet applied a 10% surcharge. Subsequently, a Gas Piping Adjustment for $47,795 was taken out of Weybosset’s plumbing Allowance and added to the HVAC Allowance, adjusting the Allowance upward to a total of $1,303,295. Ex. 91 at SS014192. Consequently, the $5,500 cost overrun was reduced to $3,042, to which 9% overhead (for changes below the $5,000 threshold) and Stonestreet’s 6% fee was added, for a total of $3,515. COR 102A, Ex. 91.

In sum, Stonestreet presented convincing evidence at trial that the cost of certain work exceeded the respective Allowances set forth in the Contract. Although Weybosset took issue with Stonestreet’s timing regarding the preparation of those CORs and the supporting materials, it did not present evidence demonstrating that Stonestreet’s calculations were wrong or unfounded. As Stonestreet conceded, almost half of these Allowance Changes resulted in a credit to Weybosset. Based on the testimony of Patrick and the evidence presented in connection with this issue, the Court finds that the requested Allowance Changes of $38,241 are appropriate and that the GMP was increased thereby.

D. Pending Scope Increases

Stonestreet’s next category of claims include Scope Increases for a total of $535,677, the most significant of which is asserted in COR 127 for extended General Conditions of $482,119. The remainder of Stonestreet’s claim is set forth in fourteen CORs of varying amounts, eight of which are for amounts of less than $5,000, and half of those ranging from $320 to $598. Because cases like this $12 million construction dispute — which usually proceed to arbitration — tend to test the limits of a trial court’s resources, the Court will only discuss those claims that involve at least $1,500.

COR 23 relates to cost of parking. Stonestreet alleges that it incurred $6,435 in parking costs because, although Stonestreet assumed it would have total control of the tight construction site, Stonestreet was charged for parking its vehicles on adjacent property. COR 23 is supported by bills from MetroPark Limited. Ex. 92, SS038899. At trial, Patrick explained that the basis for COR 23 was that Stonestreet was charged for parking in an area that it was “led to believe” belonged to the Project site. Tr. yol. 2, 91:12-19 (Mar. 21, 2012). Meeting Minutes from February 7, 2008 reflect that “Jeff is currently working on the change order for the parking charges. Stonestreet is being charged for the land that is part of the project area.” Ex. 7, SS011479. Chris Reynolds (“Reynolds”), former Stonestreet V.P. of Operations, testified at trial that, because the Project site was tight, he wanted to make sure he controlled the entire site. Tr. vol. 5, 109:1-6. He further explained that there was a ten foot area behind the building that was part of the site, but that it had already been leased out. Id. at 109:7-12. Reynolds advised (Jeff) Karam that he would put in a change order and Jeff advised him to “go talk to Metropark and see if we can get that resolved.” Id. 109:13-22.

Landry’s response on why COR 23 was disallowed varied at trial. He first suggested that he received insufficient backup information, see Tr. vol. 8, 132:13-16 (Mar. 29, 2012), and then stated that there was not enough space at the back of the building within the property line to park cars, id. at 132:17-21, that the information was presented very late in the Project, id. at 133:2-7, and that parking for Stonestreet workers was not under the Contract, id. at 134:13-135:6.

From the evidence submitted at trial, including Reynold’s unchallenged testimony and the C-4 Site Plan of the Project, it appears that Stonestreet expected to use the area behind the building for parking, only to find out that the area had already been leased. Reynold’s communication with Jeff also indicated that Weybosset was made aware of this issue early in the Project and did not outright reject Stonestreet’s claim for parking reimbursement. Therefore, the Court finds that the cost of parking is included in the “Scope Change.”

COR 57E was submitted in connection with the patching of holes in the hoist-way and around hall buttons by Otis Elevator Company (“Otis”) for an amount of $2,794, described as additional costs to COR 57A and including a 15% markup (as customary for CORs requesting less than $5,000). Ex. 93 SS034062. CORs 57, 57A, 57B, 57C, and 57D all related to work for the elevators; all were approved. Ex. 84, SS034065, SS034069, SS034072, SS034085. Pursuant to approved COR 57A, Ex. 84 SS034069, $1,760, including 10% markup, were requested for Tom Fernandes to brick and mortar in new control panels. COR 57E is supported by a bill from Otis for $2,430, id. at SS034063, and a Certificate of Time for 18 hours of work, id. at SS034064. As Patrick explained at trial, the additional charge from Otis was for operating the elevator car when it was used as a work platform. Tr. vol. 2, 92:7-17. Landry acknowledged that the charge was “for hours that Otis wanted to be able to adjust the cabs so that workers could do some work for them in their shaft,” but he maintained that he “disallowed it because that was unreasonable.” Tr. vol. 8, 135:22-25. Landry also stated that “a quarter-of-a-million-dollar contract was given to [Otis]”, and he suggested that such charges are always negotiated with the elevator company. Id. at 136:1-6. Landry did not dispute, however, that the necessary work had been done and that the charges were assessed by Otis against Stonestreet. Given the evidence and Patrick’s explanation related to this charge, and in the absence of any explanation for the disapproval other than Landry’s assertion that the charge was “unreasonable,” the Court finds that COR 57E should have been allowed.

COR 79 relates to floor changes in the exercise room, for which Stonestreet sought additional costs of $6,538, which included 6% overhead and a 4% fee. Ex. 94. As explained by Patrick at trial, the floor changes in the exercise room were outside of Stonestreet’s Scope of Work. Tr. vol. 2, 95:9-12. Stonestreet’s Scope of Work provided for a particular floor structure, which was subsequently changed, resulting in additional cost to supply that floor. Id. at 93:20-94:4. According to Patrick, the floor was one of the items contained in the Qualifications and Assumptions to the Contract and, therefore, no Owner approval was required. Tr. vol. 5, 34:19-85:11. The floor was to be wood-framed, but it was subsequently discovered that this would require a sprinkler system and, in the spirit of value engineering, it was decided to fill the area with concrete. Id.

Although Landry initially suggested that no one had ever submitted COR 79 to him, Tr. vol. 8, 136:18-137:8, his recollection of the work involved is consistent with Patrick’s testimony. The floor in the former boiler room had a four foot depressed area and the space was initially intended to include a spa. Tr. vol. 9, 54:6-20 (Apr. 2, 2012). Landry recalled that he gave Reynolds “the latitude to do whatever he wanted to fill the floor before and after the idea of the spa.” Id. at 54:9-12.

Stonestreet’s Qualifications and Assumptions stated that “[t]he spa scope of work has been eliminated. There is no excavation, backfilling or utility trenching in the basement.” Ex. 1 SS038853. Further, the “[s]cope of work in the basement includes a wood framed floor to fill in the lower elevation where the existing boilers are.” Id. at SS038855 (emphasis added).

Given this evidence and testimony, it is apparent that a change in the flooring, which resulted in higher costs to Stonestreet, was outside of Stonestreet’s Scope of Work and that COR 79 should have been allowed by Weybosset.

COR 122 for $4,025, including overhead and fees, is for the installation of synthetic stucco over concrete at the archway wall and piers. Ex. 95. According to the COR, the GMP specified cast stone details at the archway wall and synthetic stucco at the piers, which was first changed in 12/17/07 drawings that added additional precast and, then again, in 01/18/08 drawings which provided a change from cast stone to synthetic stucco. Ex. 95, SS21034. The backup to COR 122 included a letter dated December 8, 2008 from Stonestreet Project Manager Chris Manlove (“Manlove”) to Landry, id. at SS21341, explaining the changes from the GMP drawings, a bill from Dexter for a portion of the work, id. at SS210342, additional e-mail correspondence from and to Manlove, id. at SS210343, a “Change Estimate” from Jesmac, Inc. (“Jesmac”) for $3,651, id. at SS210344, a section of Exteri- or Details Drawing A8.3 dated December 10, 2007, id. at SS021345, and a page from Stonestreet’s Timberline system generated in January 2011, showing a line item for Jesmac’s invoice, id. at SS210346.

At trial, Patrick stated that the actual cost was the same as previously estimated by Jesmac and that he witnessed the work being performed by the Subcontractor. Tr. vol. 2, 98:1-9. Landry, while acknowledging that the original drawings featured a lot of brick in the portico area, which was later reduced to a quantity of EIFS [exterior insulating finishing system, also called synthetic stucco], maintained that he and Reynolds agreed that this would not be paid by First Bristol and that he marked COR 122 void on his log “for the entire duration of the job.” Tr. vol. 8, 138:1-13. The Weybosset COR log dated February 13, 2009, marked COR 122 as “submitted,” whereas the Weybosset COR log dated August 17, 2009, marked the same COR as “void.” Given the detailed and undisputed backup information supporting COR 122, and in the absence of any concrete evidence that Stonestreet agreed to pay for changes from the original GMP Drawings, the Court finds that COR 122 should have been allowed.

COR 139 was a request of additional payment (or increase of the GMP) for $11,985, including overhead and fee. Ex. 97. This COR related to repair work and repainting after a number of bathroom doors were hung incorrectly. As Patrick explained in his testimony, hollow metal doors were purchased and installed according to provided plans; however, in December 2008, it was determined that the installed frames needed to be reversed in order to have the doors swing away from the bathroom vanity. Tr. vol. 2,108:16-20. Backup information to COR 139 included a change proposal from Colorscapes, LLC, for $9,071, and a change order from Horner for $2,327 (it is unclear whether that amount was subsequently reduced to $1,800 assessed in COR 139). According to Patrick, the work was performed and the backup information was provided, but Weybosset declined to approve COR 130. Tr. vol. 2,109:4-110:1.

As Landry conceded at trial, Stonestreet hung the doors in accordance with drawings provided to them as part of the Contract, specifically Architectural Drawing A1.2, showing the Third and Fourth Floor Plans. Ex. 3, SS202021. Tr. vol. 9, 58:7-24. Landry maintained that those were not “the only drawings they’re supposed to refer to,” id. at 58:25-59:1, although it was not established at trial to which other specific drawings he was referring.

Given the evidence of the error in the architectural drawings, together with Patrick’s testimony and the backup information provided in support of COR 139, the Court finds that COR 139 should have been allowed.

COR 191 related to the installation of additional parts to connect the pressurization panel to the fire alarm panel; it requests an additional amount of $5,638, 10% markup included. According to the request, the additional materials were not specified in the parts list from the panel manufacturer. Ex. 103, SS210380. The COR is supported by a bill from Power Service Inc; and an estimate for materials and journeyman hours. Id. at SS210381, SS210382. Patrick’s testimony at trial that the parts were supplied and that COR 191 was submitted to Weybosset in April of 2009 was undisputed; hence there was no evidence to support Weybosset’s rejection of COR 191 and the Court finds that the COR should have been allowed.

COR 200 was a request for $7,469 related to an adjustment of the Elevator Allowance. Ex. 105, SS210387. As set forth in COR 200 and in the attached copy of the GMP, the GMP Budget specified $192,914 for elevators. Id. at SS210387. However, this included $13,959 for a linen chute that was specifically excluded in Stonestreet’s Qualifications and Assumptions. Id. at SS210388-89. The subtraction of the linen chute cost reduced the elevator budget to $178,955; however, the final cost of the elevator was $186,423. Stonestreet did not add the customary charge for overhead and fee to its request because it had previously agreed to do the elevator work without an additional fee. Tr. vol. 2,121:10-16. Included in the backup information for COR 200 was Stonestreet’s estimate for the cost of the elevator work. Ex. 105 at SS210389. When asked on cross examination why he provided this estimate in the backup to COR 200, Patrick explained that, in Stonestreet’s cost reports, Division 14 (related to elevator work) had been “lumped together,” and that he intended to differentiate the cost between the elevator renovation and the linen chutes. Tr. Vol. V, 38:19-39:25.

Because Patrick’s testimony and the evidence supporting Stonestreet’s claim under COR 200 was materially unchallenged, the Court finds that COR 200 should have been allowed by Weybosset.

COR 503 requested $4,137 for overhead and fees for job clean-up costs, which was generated on February 9, 2009 and submitted to Landry on April 23, 2009. Ex. 106. According to the description of COR 503, out-of-sequence cleaning was necessary “as the result of the delay in the project receiving permanent power. At the Owner’s request, guestrooms were cleaned out of sequence repeatedly.” Ex. 106, SS210394. COR 503 specified that the cost of cleaning performed in November and December 2008 totaled $40,397 ($15,950 + $20,047 + $4,400) and that Stonestreet sought 4% for overhead and 6% for its fee for a total of $4,137. The supporting backup information included a second copy of COR 503 with a handwritten notation of the requested amount and a page from Stonestreet’s Timberline system generated in March 2011, reflecting three separate invoices from Suburban Contract Cleaning. At trial, Patrick explained that additional cleaning was needed because the Project was built out of sequence. Tr. vol. 2, 122:8-10. Although, initially, Stonestreet sought the entire amount of the clean-up costs, the COR was modified because Weybosset paid the Subcontractor directly. Id. at 122:10-15. On cross examination, Patrick confirmed that Stonestreet only sought to be paid for overhead and profit and that a credit had been given to Weybosset for any payment it made to Suburban. Id. at 160:11-161:3. Patrick acknowledged that the actual cost of cleaning — on which COR 503 was based — was included in the calculation of Stonestreet’s COR 127 for extended General Conditions, Ex. 96, and that Weybosset was not actually given a credit; rather that Stonestreet did not intend to charge Weybosset twice for the same costs. Tr. vol. 2 at 162:16-163:16. Nevertheless, the backup information established that Suburban charged the amounts in question for additional cleaning and no evidence or testimony was submitted that indicated Weybosset disagreed with the amounts, the work performed, or Stonestreet’s entitlement to its percentage. In other words, as Patrick testified, Stonestreet sought only its contractual overhead and cost. In the absence of any evidence that the charges were incorrect or not applicable, or that Stonestreet’s request for overhead and fees was unwarranted, the Court finds that COR 503 should have been allowed.

E. Extended General Conditions

As already noted, Stonestreet’s most significant claim with respect to “Scope of Work” increases was asserted in COR 127, which sought payment of $482,119 for extended General Conditions. Ex. 96. Section 8.3.1 of the Contract provides:

If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor’s control, or by delay authorized by the Owner pending mediation and arbitration, or by other causes which the Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Owner may determine. Ex. 1 SS038827.

In support of its claim, Stonestreet maintained that the delays on the Project were caused by Weybosset, primarily by Weybosset’s inability to provide primary power. Stonestreet’s expert, Bradford L. Bright (“Bright”), agreed with Stonestreet’s conclusion and, in support of its claim, Stonestreet introduced a number of CORs at trial in which it had requested (and Weybosset had approved) time extensions in connection with certain tasks on the Project.

Pursuant to the Contract, which specified November 25, 2008 as the projected completion date of the Project, the GMP included a lump sum of $809,888 in Stonestreet’s budget for General Conditions. Ex. 1 at SS038840. In December 2008, Stonestreet submitted COR 127, requesting a General Conditions increase of $138,612 for Project Schedule delays. Ex. 38. This version of COR 127 referred to a number of CORs which reflected an anticipated completion date of January 23, 2009. The CORs listed in COR 127 (CORs 8, 12, 13, 14, 38, 38A, 38B, 38C, 38E, and 138) are set forth in Ex. 84. They all requested time extensions for a variety of reasons and were signed by Landry. (As previously noted, COR 126, for schedule delays related to permanent power, was not signed by Landry).

At trial, Patrick explained that, although, up to COR 126, all other CORs had been approved, Weybosset did not respond to COR 127 at all. However, Weybosset never indicated that Stonestreet would not be paid for extended General Conditions, and Stonestreet kept working on the Project. Tr. vol. 1, 154:10-155:1. According to Patrick, following a discussion between the parties — in which Stonestreet threatened to shut down the job if it did not get paid — an agreement was reached that Weybosset would pay half of the General Conditions for December ($36,000) and that the COR with backup information would be submitted to the Architect for review pursuant to Section 4 of the Contract. Id. at 155:21-156:10.

In its posttrial memorandum, Weybosset claimed that Stonestreet was not entitled to $111,306 for extended General Conditions through December 31, 2008 because “Stonestreet was paid and accepted $36,000 for extended general conditions for that period and released and waived any further claims against Weybosset.” In support of this contention, Weybosset offers a “Release, Waiver of Lien Material, Equipment and Labor,” (the “Release”) pursuant to which Stonestreet purportedly waived any and all contract damages claims against Weybosset. Weybosset Mem. 36 (Docket # 180), Ex. 1158.

At trial, Patrick acknowledged that Stonestreet provided releases to Weybosset and that the Release, executed at an unspecified date in 2009, was likely issued for payment on Requisition # 14 for Stonestreet’s receipt of Check # 09524 for $553,091. Tr. vol. 4, -92:22-95:5 (Mar. 23, 2012). Requisition. # 14 for the period ending December 31, 2008, reflects a current amount due of $553,091. Ex. 110 at SS0087968. The requisition also includes $36,000 for extended General Conditions, noted as pending in COR 127. Id. at SS0087979. Patrick testified at trial that, although Requisition # 14 was paid in full by Weybosset, the requisition included “the discounted amount of general conditions that we agreed to take in order to stay on and keep the job going with an understanding that our general conditions delay claim would be presented to the architect as the independent third-party reviewer per the contract.” Tr. vol. 4, 99:11-21. On its part, Weybosset now suggests that “Stonestreet’s subsequent acceptance of Weybosset’s payment on the December application and its execution and delivery of the release plainly waived, obviated and rendered immaterial any claim or complaint by Stonestreet in connection with the alleged oral understanding and dispute over meeting with the architect.” Weybosset Mem. at 37 (Docket # 180).

It is undisputed that General Conditions were calculated at approximately $72,000 per month. Likewise, Weybosset does not directly dispute that the parties came to an oral agreement at a meeting on this issue that Stonestreet would be paid half of the requested amount for December 2008 and that the parties’ dispute regarding extended General Conditions would be submitted to the Architect. Stonestreet followed up with the Architect but, as the Architect testified at trial and as Karam confirmed in his own testimony, Weybosset instructed the Architect not to make such a determination.

Karam acknowledged at trial that a conversation with Patrick had taken place, in which Patrick threatened to walk off the job and asked for extended General Conditions. Tr. vol. 9, 143:15-25. According to Karam, he agreed to pay $36,000, which was intended to cover extended General Conditions through the end of January (a position that Weybosset does not appear to assert in its memorandum, which refers to extended General Conditions through December 31, 2008). Tr. vol. 9, 144:12-16, 145:2-8. At first, Karam flatly denied that there were any further agreements that Weybosset had with Stonestreet with respect to payment of extended General Conditions, id. at 145:5-12. However, he later conceded on cross-examination that Weybosset had indeed instructed the Architect not to address Stonestreet’s request for determination of its claim for extended General Conditions. Id. at 152:10-153:8.

Evidence submitted at trial also showed that Karam initially received a # 14 “pencil requisition” for $588,673, which reflected a request for extended General Conditions of $152,473 per COR 127. Ex. 128 at SS0081164. Subsequently, Requisition # 14 was changed, reducing extended General Conditions to $36,000 per the agreement between Weybosset and Stonestreet.

By letter dated January 13, 2009, Patrick requested a determination by the Architect regarding Stonestreet’s request for “extending the time for receipt of a final certificate of occupancy until February 13, 2009 due to the Owner’s late delivery of permanent power.” Ex. 46 at 1. In response, Weybosset took the position that the Architect had “no authority to decide or act on the request,” Ex. 51 at SS100794 (emphasis in original), because the authority to grant time extension requests rested solely with Weybosset’s designated representative. Contract § 3.2, Ex. 1 at SS038796. Stonestreet received no determination on its request. At trial, the Architect for the Project, James Michael Abbott (“Abbott”), testified that Newport Collaborative received the request but did not respond because “we were instructed not to” by Weybosset’s counsel. Tr. vol. 4, 17:10-24. Abbott’s testimony that he was directed not to respond was confirmed by Karam at trial. Tr. vol. 9, 152:18-153:8.

Based on the evidence submitted at trial and the testimony of Patrick, Abbot, and Karam, the Court draws the conclusion that the Release offered by Weybosset only serves to document that Stonestreet received full payment for Requisition # 14, which included a reduced amount of $36,000 in extended General Conditions. As such, it is entirely consistent with Patrick’s explanation that the parties negotiated such a reduction with the understanding that the remainder of Stonestreet’s request would be submitted to the Architect. Consistent with this agreement, Stonestreet sought the Architect’s determination on this issue, but Weybosset reneged on that agreement and forbade the Architect to make such a determination. For those reasons, the Court rejects Weybosset’s contention that the extended General Conditions through December 31, 2008, should be limited to the $36,000 included in the payment for Requisition # 14.

On March 30, 2009, Stonestreet again submitted a version of COR 127, raising the amount for extended General Conditions to $254,809, based on an additional 93 days necessary for the completion of the Project. Ex. 73 at SS0078211-SS0078212. In addition to a 3-page Timberline report, Stonestreet submitted a detailed 4-page Executive Summary, in which it addressed the impact of the late delivery of permanent power on the Project. Id. at SS0078216-SS0078219. Stonestreet also included copies of approved CORs 8, 12, 13, 14, 84, as well as three change orders from Power Service Inc., reflecting charges for work performed in January 2009. Id. at SS0078225-SS0078227.

On April 15, 2009, Stonestreet submitted COR 127A for