Timothy McFayden dba Pro-Craft Plubming Company (Plaintiff) vs ASR Constructors, Inc Upland Unified School District Federal Insurance Company (Defendants)

Comes now the Arbitrator having received both oral and documentary evidence and issues his Award.  The arbitration hearing in this matter was held on September 9, 2009 at the offices of IVAMS.

This dispute is over the Plaintiff’s claim to $24,928.47 is unpaid billings.  Defendant ASR did not dispute the accounting in Plantiff Pro-Craft’s billing but claims back charges of $17,429.68 for work Pro-Craft did no perform.

Defendant ASR alleged that Pro-Craft was contractually required under its contract “to coordinate with the City Water Department to make connectioin to the City Water Main.  Contractor to pay all fees associated with hook up to street main.”

Pro-Craft was the plumbing sub contractor with Defendant ASR Constructors acting as the general contractor for the project.  The project was a two story science building and multi-purpose building known as the Upland Junior High School located at 444 E 11th Street Upland CA.

The evidence was uncontradicted that the written agreement between Pro-Craft and ASR contained the following exclusions.

“Saw cut, survey site demolition, permits feel, inspection costs, traffic control, concrete or asphalt patch”

Testimony was clear that the contractor performed the excavations and could not tie in with the city water main due to sizing problems, and the city required and architect to come up with a solution.  Pro-Craft the contractor presented proof the specifications showed “Fire Line Site Only” and the connection to deal with this problem involved an off-site connection now shown on the plans.

It took ASR until July 27, 2005 to reply to Pro-Crafts requested change order dated February 28, 2005.  ASR rejected the change order saying “The cost to go into the street and connect to the city’s water main is part of your contract.”  ASR gave Pro-Craft 24 hours to respond, Pro-Craft refused.

The evidence was contradicted Pro-Craft had completed its work called for under the contract.  For other back charges necessitated by the Health Department Pro-Craft had requested back up information and was summarily refused.

ASR’s claim that it was entitled to back charges for-off site work not performed by Pro-Craft has no basis in fact or law.

Plaintiff and defendant specifically excluded from plaintiff’s responsibility and scope of work to go into the street and connect to the city’s water main.

Defendant’s witnesses in support of its position were obviously biased.  He admitted 80% of his work is with ASR and he is in a joint venture with ASR.  Defendant did not produce witness Marc Berry the person most familiar with the project, who had wrote a notation to Pro-Craft.

“You didn’t bid the job correctly it’s your tie in except the off site costs”  Rather defendant attempted to include the owrk as being subject to interpretation and included as scope of work.

Such argument is denied and not credible in light of specific exclusions agreed to by ASR in the Pro-Craft contract.

In addition further evidence showed ASR was paid by the Upland School District for the off-site connection to the city water and also the Health Department requirements.

Pro-Craft is owed the sum of $24, 928.47 without off-set costs together with 10 percent interest from June 26, 2005 attorney’s fees and the payment bond.  Pro-Craft to submit Memorandum of Costs and Request for Attorneys Fees.