Consult a local attorney as we have not seen your contract.

We used AIA Document A105 - 2017

Means nothing as the verbage is what matters.

That is the verbiage. AIA Document A105 - 2017

Just tell him exactly what you’ve told us and see if he’ll agree to terminate the relationship. Come back after you’ve done that and tell us how it went.

contractor is in breach of contract.

You cannot possibly know that, Justine.

Well the contract does specify that time is "of the essence" which I believe means that missing the deadline is a material breach.

Words fail me right now.

The form of AIA contract you are using is one for which the architect provides contract administration. Your questions and concerns should be directed to him/her first--presumably you're paying them for contract administration.

Yup. In breach and you can file suit for the contract amount. Do not pay him anything else. Tell him he's in breach and not to return to your property. Forget about bridges, please, you'd never hire him again anyway.

I would offer to release him from section 16.2.4 and present it like I was giving him a Christmas present. If he hesitated or refused, I would get friendly and chummy with him while saying something like, "Let's keep the blood sucking lawyers out of this, and just part ways friends." If you happen to be a lawyer refer to the court as the enemy you're railing against, etc.

It might work or it might not. He is certainly in breach, but that really isn't the question, it is whether or not he knows he is in breach. If he knows he is in breach he will be happy with the attitude and the release, if he believes he is right, you want to avoid him taking a stand on this issue.

Just what I would do.

With respect, the OP didn't ask whether or not the contractor is in breach and frankly whether or not he is in breach is really not that material to whether or not the OP can get out of the contract while maintaining the good relationship.

Furthermore, the OP noted the contract specifically says time is of the essence, I don't see there being a remedy to that. Those are the first words I try to get into any service contract, and good contractors charge dearly for those words. He can't rectify a delay and any release would have to include consideration of some type. I guess the contractor could try to push a detrimental reliance claim, because the OP approved a delay, but good luck with that.

Attorney. Now.

While not addressing the OP's situation specifically, on this forum many questions that appear to be legal questions are actually questions about conflict resolution.

You might need an attorney, but talking to your attorney is a lot more expensive than talking to your contractor. Many people have a need to turn a communication problem into a legal problem and sometimes that is inevitable. However, I don't love advice that assumes it is always the place to start.

Generally and broadly speaking I think it is usually best to start with reasonable communication. There are, of course, exceptions to this, specifically when someone's actions are particularly negligent or belligerent. However, for most people, if you feel comfortable talking to your G.C. then consider starting there. If not, or when that doesn't work then talk to an attorney.

What's the role of your architect? The contract form you are using has an architect as contract administrator. If you're paying them for that service, you should be getting the benefit of that service.

THE answer is to consult an attorney. All legal questions should be answered by an attorney.

You need sound legal advice as to what options are open to you, based on your agreement. No one here understands your agreement, so there's little direct advice that will be useful to you here.

You need to know your options if the contractor is cooperative and if the contractor is not cooperative. It's always much better to start a discussion and process with full knowledge, than not.

Good luck.

The OP stated that they're using AIA A105-2017 as their contract. If that's the case, then please help me understand why the mistakes have been caught by the owner when an architect is acting as the owner's representative--at least that what article 9 says. Section 9.7 of AIA A105-2017 reads, in part: "...the Architect will promptly interpret and decide matters concerning performance under, and requirements of, the Contract Documents." I would consider the quality and schedule issues raised by the OP as "matters concerning performance." The OP should be getting the service they're paying for from their architect before engaging others at additional expense.

I know small print at the bottom of a page in a contract is usually important, and red small print at the bottom of a page in a contract is usually very important.

Have you taken many pics of all the shoddy work that's been done? That would definitely help your case. ditto what bry said. Attorneys are EXTREMELY EXPENSIVE!!

It's long past time for the attorney. Get one before you may any more mistakes. They will tell you how to get out of the contract without any more pain than is absolutely necessary.

Whether an attorney is "extremely expensive" is irrelevant. He the OP fires the contractor and only pays him for the work he has already done, I will bed that contractor will head straight to the clerk's office and file a "Mechanic's Lien" on the property. The OP will then have to hire an attorney to write a threatening letter in order to force the contractor to remove the lien.

The OP is going to end up paying an attorney one way or another.

You all are jumping three steps ahead here. The OP hasn't fired the contractor, he is asking questions about terminating the relationship amicably. The best way to do that is a pleasant conversation between reasonable people. The contractor will either say no, or will set some terms for terminating the relationship.

If he says no, then go get an attorney. However, if he offers some termination agreement then see if it works for you. I would consider getting an attorney to draw up the release.

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The law simply isn't what some people think it is. A good attorney isn't going to tell you are right, he is going to tell you the cost of proving you are right and the risk that you could lose.

Let's assume the OP is correct and the time is of the essence clause is a material breach, which it probably is. That doesn't mean anything. Sure legally you have a great case, meaning your odds of winning are probably better than 80%-90%, but that doesn't mean the contractor is going to see it that way. The question isn't whether or not you can prevail in court, the question is what are the odds of getting to court. What are you going to do when we send the demand letter, followed by a final notice to correct, followed by a termination letter, and then he goes and files a mechanic's lien anyway?

Mechanic's liens have to be perfected in superior court so what are you going to do when you have to spend money on an attorney to prove you don't owe the contractor money? Money that you are not getting back in the judgment. Attorney's specialize in making people see that reasonable negotiation is much better than legal right or wrong.

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You have a contract there is one easy way out of a contract and that is through the other party. There are a lot of hard and expensive ways out of a contract...

Involving an architect during construction is supposed to minimize potential problems and gray hairs for the owner. The architect's role is described in article 9 of the AIA contract that the OP says they're using. The architect's experience working with dozens or more contractors will help calibrate the owners' experience working with their particular contractor. The contractor might be the world's worse or it could be that's he's the best you can get in the area. Or maybe he's simply the low bid guy and his performance is on par for that. Lean on your architect!

If the OP and their architect (and readers of this thread) will take the time to read article 16 (termination of contract) of AIA A105-2017, they will find that the OP has the option to terminate the contract for convenience (without cause) by settling up with the contractor for costs incurred to date and fair overhead and profit on the uncompleted portion of the work in the original contract scope. See section 16.3. Kinda like a no-contest divorce.

Let the negotiating begin!

OMG someone actually read the document! ;-)

I assume we all read that contract.

While I agree that 16.3 limits the damage, 16.2 is the real power to negotiate.

We have been told that the OP is using this document and that the OP added a time is of the essence clause to this document.

So Charles Ross Homes, if a 5 second Google search told you that you most likely committed a material breach, and 16.2.4 told you that you were financially responsible for any overage of the replacement contractor, would you negotiate favorably to get out of the deal?

We haven't seen the actual contract to know what language is included and what isn't. We don't have confirmation that the OP is even working with an architect as AIA A105-2017 would lead us to believe. And we don't know what state the OP is in, let alone the applicable state contractor regulations, if any, in that state.

While the project completion may be late, there are a lot of things that affect schedule including factors outside the contractor's control--the weather, for example, and availability of subcontractors when their work, too, is affected by the weather. The OP has admitted that the contractor has corrected mistakes when pointed out to them. We don't have any information that there are subcontractor liens on the property. That suggests to me that the contractor is working in good faith within the limits of his ability.

Absent a copy of the approved contract and hearing the contractor's side of the story, I think it's premature to conclude there is a breach of contract--at least according to the criteria of article 16.

The reason why I suggest a consultation with an attorney is to explore the options and formulate a plan within the law. This way, the OP doesn't spin his wheels uselessly or make unnecessary mistakes. Going to court is always the last resort. But, knowing the law is always the best course of action.

Charles.....who determines the 'fair' overhead and profit?

"Charles.....who determines the 'fair' overhead and profit?"

Only the owner of the contracting company can determine what his overhead is. Fair overhead and profit is determined by the market. If your overhead and profit is to high, your not getting work. So the customers end up determining "fair" overhead and profit. Surprising question.

The OP's question is how they can terminate their contract prior to completion of the work. The first place to look for an answer is in their contract.

Termination is covered in article 16 of the AIA A105-2017 contract document that the OP (who appears to have left the room) says he's using. According to section 16.3, "The Owner may, at any time, terminate the contract for the Owner's convenience and without cause. The Contractor shall be entitled to receive payment for the work executed, and costs incurred by reason of such termination, along with reasonable overhead and profit on the Work not executed."

With regard to which party determines "reasonable overhead and profit," section 9.7 of AIA 105-2017 states "On written request from either the Owner or Contractor, the Architect will promptly interpret and decide matters concerning performance under, and requirements of, the Contract Documents."

I may be alone on this one, but...

While I think it is a bit early to see an attorney, I think it is absolutely stupid to see an architect instead.

Regardless of the responsibilities an architect might have during construction, this is a conflict resolution problem at this point. I didn't go to architecture school, but I must admit I am surprised to know that they also study conflict resolution. Either act as your own agent or hire an experienced attorney.

It may be smart or it may be stupid, but if both parties have signed the AIA A105-2017 contract, it appears that they've already agreed to use the architect in the role of (borrowing from George W.) "the decider."

it appears that they've already agreed to use the architect in the role of (borrowing from George W.) "the decider."

After careful consideration I revise my opinion, the OP should see an attorney.

I admit that my advice may have been biased by the OP saying, "I believe means that missing the deadline is a material breach." That led me to believe that the OP had done some homework, at least enough to be confident in a meeting. However, given the discussions in this thread, maybe my expectations for general knowledge of contracts are misplaced.

The contract does not say that the Architect will be the decider, only the administrator. How is deciding whether or not a contractor's performance falls within the terms of the contract relevant here? The architect can't change the terms of the contract, nor is he in any way shape or form legally allowed to determine when and if a material breach has happened.

You are a contractor, please tell me you are trying to win an argument, and you don't actually believe that an architect is licensed to practice law.

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If the OP and their architect (and readers of this thread) will take the time to read article 16 (termination of contract) of AIA A105-2017, they will find that the OP has the option to terminate the contract for convenience (without cause) by settling up with the contractor for costs incurred to date and fair overhead and profit on the uncompleted portion of the work in the original contract scope. See section 16.3. Kinda like a no-contest divorce.

I was just going to leave this alone but...

16.3 may be the most worthless clause in the entire contract. It limits the contractors collection rights to what the contract would pay him and it does nothing more. These are mostly the exact same rights the contractor would have without this clause.

This is calculated by using the total sum of the contract less any costs the contractor avoided from the termination.

For example: Suppose the contract has $25,000 of materials $15,000 of subcontractor installation charges (their profit and overhead), and $10,000 of contractor profit and overhead for a total amount of $50,000. Suppose all materials have been purchased and are not returnable. 16.3 then states that the contractor will recover all $50,000.

Suppose that $20,000 of materials still haven't been purchased and there are no commitments made for their purchase, then the contractor would get $30,000. It essentially pays the contractor in full for all services as if they had been fully performed, and eliminates extraordinary profit from any unpaid cost of sales.

This is the standard legal assumption in all contracts that if the contractor were not working on your job they would have found equivalent work during that time, and if the customer cancels must pay accordingly, and it is the default position of all courts.

So why is the clause even in there? In very rare cases (probably one in a few thousand) a contractor will say that he planned to market your job in such a way to increase future income. All 16.3 does is remove any claim to loss of future income resulting from the breach. It is not a lot of ink and in very rare cases saves a bit of trouble.

This has to be very close to the last thing the OP wants.

Please forgive me for offering an alternative (contractor) viewpoint.

There is typically a presumption of guilt on the part of the contractor in these threads. While a contractor may indeed be at fault, readers should keep in mind that only one side of the story is presented. Further, it's rare to get a look at the construction documents which are--or should be-- the basis for the contract the homeowner and contractor have entered into. This lack of this information is, however, rarely an impediment for armchair attorneys who are quick to assign blame to the contractor.

In this specific case, the OP says they're using AIA contract A105-2017 (although they've only shared the sample form from the AIA not a fully executed contract.) This form of contract is one where the architect plays a role in the administration of the contract including inspection of the work and certification of payments. It also makes the architect available, when requested, to interpret and decide matters concerning performance under the contract. Quality of work and conformance to schedule are performance issues which the architect has the technical qualifications to assess. That doesn't make him/her an attorney.

The reason homeowners retain architects to perform contract administration is to benefit from their experience and expertise through project completion. The architect's experience base might be a handful or hundreds of homes, but it should exceed that of the homeowner. I submit that the experienced architect adds value for both parties to the contract: the architect calibrates the homeowner's expectations of what level of quality is reasonable to expect given the scope and cost and they hold the contractor to that same standard. Doing so requires that the architect not show partiality to either party and to render their interpretations and decisions in good faith as per section 9.8

If the OP has retained an architect for contract administration, I stand by my recommendation that they should lean on their architect before hiring other professionals at additional expense.

There is typically a presumption of guilt on the part of the contractor in these threads.

With respect, I said originally that guilt doesn't matter in the least and the presumption of guilt is even less important. I said, "He is certainly in breach, but that really isn't the question, it is whether or not he knows he is in breach."

Time is of the essence is an incredibly powerful and punitive line in a contract. It means that the contractor is in breach for any foreseeable delays. Foreseeable includes weather and shortages that are not both unusual in occurrence and infrequent in nature.

Again, as you continually prove, it is absolutely unimportant whether or not the contractor is in breach. The question really is, can you get the contractor to accept a termination of the contract at a reasonable cost? All other questions of right or wrong, material breach or immaterial breach do not matter.

Legal questions are almost always questions of marginal cost and marginal benefit and are almost never a question of right, wrong or the law. They are largely battles of attrition. You can be absolutely 100% right in every legal sense and spend $50,000 on attorney fees proving you are owed $40,000. On the other hand you can have absolutely no right of recovery at all and get a check for $40,000 without spending a single penny on attorney fees.

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This is a fairly easy question and one that isn't really legal at all. Can the OP get the contractor to agree to release him from the contract? That has nothing at all to do with who is at fault. NOTHING. Nor is it likely to ever really have anything to do with fault or breach. Even if original negotiations fail you are just going to get an attorney to write letters trying to accomplish the exact same thing. A release of the contract. Final arbitration of breach vs. compliance comes in a court room after many thousands in legal fees and any attorney who lets this case get that far, should be tarred and feathered.

My gut tells me that there is not a separate architect involved. Seems like the contractor is the architect to me.

mill.....I KNOW that but MOST people DON'T and they take advantage of that to make as much money they can!!!!!

jmm.......YES attorneys are EXTREMELY EXPENSIVE!!!!!!!!!!!!!! I KNOW FROM EXPERIENCE!!!!!! Around 90% of their work is from their paralegals(that make a fraction of what they do) but charge 'their' rates!!!! I know this as a FACT!!! They take advantage and charge as much as they can get away with!!!!!

Well...either the OP wants appropriate legal advice or s/he doesn't.

The issue posted by the OP was how to terminate an existing construction agreement before all contracted work was complete.

It's not difficult.

Talk to the contractor to see if s/he is willing to terminate the agreement and on what terms. It's either a yes or a no.

The issue for the OP is simply whether or not the OP wants expert advice on strategies for the "yes" or "no" answers from the contractor...or not.

All the rest of this thread is really just posturing.

Especially all of the !!!!!!

YES attorneys are EXTREMELY EXPENSIVE!!!!!!!!!!!!!! I KNOW FROM EXPERIENCE!!!!!! Around 90% of their work is from their paralegals(that make a fraction of what they do) but charge 'their' rates!!!! I know this as a FACT!!! They take advantage and charge as much as they can get away with!!!!!

A paralegal isn't going to be involved in a consultation in this situation, so despite your assertion that this does happen in the industry, it is not relevant to this OP.

Things do get expensive when the attorney starts interacting with other parties. The attorney who handles my rental properties charges $50 for a phone call up to 5 minutes and $50 for each additional increment up to 12 minutes, so I can get poor real quick when we play phone tag or he waits on hold, but that isn't material here.

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Furthermore, the whole paralegal vs attorney billings largely doesn't matter. A fact that someone with as many business degrees as you supposedly have should know.

First, if the work product is valuable to you because of its outcome and without regard to who did it. You are actually paying for their expertise and not their time, they just choose an hourly rate to bill for your desired outcome.

Second, attorneys don't really make that much money. I would have to take a pretty substantial pay cut to practice law full time rather than teaching. The fact is, it is simply a lot more expensive to run a law firm than people realize. So the idea that attorneys use a lot of paralegal work is largely moot. It is really a zero sum game, if they billed for more paralegal hours and less attorney hours, the rates would simply have to be adjusted such that attorney hours were significantly more expensive. The net result would be most clients would be charged substantially the same thing.

It is a simple job order costing model, and in the end, service revenue has to remain fairly constant.