Construction Law & Litigation

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[E]xcept in the middle of the battlefield, nowhere must men coordinate the movement of other men and materials in the midst of such chaos and with such limited certainty of present facts and future occurrences as in a huge construction. . . . Even the most painstaking planning frequently turns out to be mere conjecture and accommodation to change must necessary be of the rough, quick and ad hoc sort, analogous to the ever-changing commands on the battlefield. Blake Construction Company v. C.J. Coakley Co., 431 A.2d 569, 575 (D.C. App. 1981).

 

Every construction project, whether public or private, commercial, institutional or residential, presents a host of challenges for all parties involved in the process. The success of any project depends on skilled management of many issues: legal and business risks need to be identified, managed and apportioned among the parties; costs must be controlled and other financial uncertainties need to be minimized; time parameters need to be tightly framed and contained; environmental, zoning, code and other statutory regulations need to be complied with; and disputes, delays and other dislocations need to be quickly and efficiently resolved, minimizing impact on schedule and cost. In short, construction is a complex undertaking, with myriad risks and potential pitfalls, requiring strong and skilled guidance to bring projects to successful conclusion.

Clark Guldin lawyers provide clients with a full range of construction law services from project inception and planning through design and construction to close out, including advice about project delivery systems, contract formation and negotiation, and counseling and advice throughout the process. A significant element of project lifecycle is dispute resolution, which encompasses “real-time” problem solving during the course of the project, through informal negotiation and mediation, and more formal (and final) adjudicated processes of arbitration and litigation.  Clark Guldin’s core competencies are best broken out as Project Services – project conception through informal dispute resolution, and litigation, including arbitration.

Project Services

Project Delivery and Contract Formation

For every construction project, a designer must be engaged to design what is to be built, and a builder engaged to build what is designed. So much for simplicity. More often than not, there are other parties involved in the process, from program and construction managers, and contractors and subcontractors, to consultants, sub-consultants and testing agencies. All of these relationships must be managed by contract. It is through project delivery and contracting decisions that the die is cast for each project. The questions that need to be answered are driven by a host of considerations including, financial and time constraints, the owner’s expertise (if any) in design and construction, the lender’s requirements, site and location-related challenges, building performance and maintenance goals, and ultimate end use of the constructed facility. Every construction project has such special considerations, all of which must be considered when selecting a project delivery method, and selecting and preparing forms of contract.

The range of project delivery options is broad, ranging from traditional design/bid/build to construction manager at risk, design/build, indefinite quantity/indefinite duration job order contracting, and partnering arrangements such as Integrated Project Delivery. Whether builders are paid fees or a fixed price, whether completion is mandated and controlled by penalties and incentives, which parties control design decisions, and how schedule issues are to be managed are all considerations when selecting delivery systems. The business and legal relationships and risks among the parties vary widely in these delivery methods, and comprehensive expertise is necessary to avoid pitfalls.

This Firm’s lawyers understand that a client’s ultimate goal is to gain a competitive advantage through contracting and minimization of risk. Accordingly, we are fluent in all forms of project delivery and contract formation best suited to your business needs. Our lawyers can advise you concerning the use of either standard industry forms (AIA, AGC, Consensus, CMA, FIDIC), modified versions of those forms of agreement, or wholly customized forms of agreement. Regardless of the format of the various agreements, our attorneys will ensure that they are comprehensive and coordinated so the obligations of the parties are clear, and the risks inherent in the process are appropriately allocated.

Clark Guldin’s lawyers can also assist with special project structures such as joint venture and teaming arrangements, and with financial and risk management strategies involving bonds, guarantees and letters of credit.

Bidding & Procurement

Clark Guldin lawyers have extensive experience in competitive bidding matters, in both public and private arenas. In government contracting, our attorneys handle bid protests, bid withdrawals and reformations, bidder qualification, and state-mandated SBE compliance matters. In addition, as part of its state contracting capability, Clark Guldin lawyers also handle debarments, suspensions and other legal actions brought by state and federal governments against contracting entities seeking to curtail the contracting rights of those parties.

Contract Administration

Once commenced, a construction project takes on a life of its own, driven not only by the contractual relationships but by the project culture. Problems, dispute and disagreements invariably arise during the process. A key to overall project success is early problem solving intervention. Our attorneys help clients identify and solve problems in real time providing advice related to claims of every stripe (differing site conditions, design ambiguities and errors and omissions, environmental conditions); project delays and schedule impacts; and insolvency or bankruptcy of a party in the contracting or consulting chain. In this milieu, Clark Guldin lawyers work with clients to prepare and execute strategies for minimizing delay, disruption and cost by managing the claims process, preserving evidence, preparing documentation, and preserving the client’s position for dispute resolution.

Informal Dispute Resolution

The longer a dispute awaits resolution on a construction project, the more risk the parties run that the dispute will delay completion, add to project cost, and chill the relationships among the parties to the dispute. Solving such problems quickly and even institutionalizing informal dispute resolution during construction process, is the best of all possible worlds for all parties. Clark Guldin lawyers can help clients formulate strategies and manage and resolve disputes using a host of techniques including, among others, dispute resolution boards, stepped negotiation and mediation. Each of these methods require cooperation and consent of the parties – values that are essential to the success of every construction project. Our attorneys have extensive experience with such informal, yet highly effective, dispute resolution methods and can commit the necessary resources to help solve client’s problems quickly and efficiently. In some cases, despite the parties’ best efforts, alternate dispute resolution does not resolve conflicts. In that event, our lawyers can handle dispute resolution through formal, adjudicative processes, including arbitration and litigation.

Project Closeout

Crossing the finish line is often the most difficult part of a race. So, too, is completion and close-out of a construction project. Besides the ultimate occupancy of the project building, completion of a project can trigger countless issues: financing and mortgage commitments, warranty commencement, retainage release, commissioning and building take over obligations, inspection of work and punch list completion, and ultimately final payment, lien releases and waivers, and general releases. How a project is closed out can have an impact on rights of the parties, operational impacts, and also have significant cost implications. Clark Guldin lawyers, through the contract formation phase and throughout the construction process, can coordinate these myriad issues to ensure that clients ultimately get what they bargained for in the first place: a successfully completed project, with clear rights and remedies in the event that a party did not properly perform.

In summary, our attorneys understand well the risks inherent in the building process, and also understand how to apportion the legal and business risks, and to help clients navigate the construction process through to successful conclusion. Construction problems are ultimately business problems, requiring business solutions. We can help solve those problems in a businesslike way.

Representative Matters:

Construction Transactions, Contracts and Advice:

Design and construction of a $250 million hospital in Jersey City, New Jersey, involving NJEDA financing on a brownsfield development site.

Design and construction of various hospital and medical facility renovations in New Jersey and Newburgh, New York.

Design and construction of complex staged renovations to existing, operating clinical spaces in New York City hospital, with financing from Lower Manhattan Development Corporation (federal) and state (NY State Department of Health) sources, together with private funds.

Construction of two new hotels in downtown Manhattan.

Construction and renovation of flagship retail store and boutique for international luxury retailer involving international design team, high-end finishes and myriad specialty elements fabricated in locations throughout Europe and Asia.

Construction of a new $44 million student housing facility in Newark, New Jersey.

Implementation of a $150 million technology infrastructure upgrade to New Jersey university campus.

Construction of retail apparel stores throughout the United States.

Developed and drafted “on-call” demolition contract program allowing a state entity to efficiently demolish hundreds of houses acquired through eminent domain condemnation.

Construction Litigation and Dispute Resolution

Represented a large, public university in the successful prosecution of multiple design and construction defects involving structural steel, mechanical, concrete and other defects, against the design team, general contractor, owner’s rep and subcontractors.

Represented university in the successful prosecution of construction defect litigation concerning the installation of several hundred defective windows in a scientific research facility.

Represented an oceanfront luxury condominium association against the developer due to design and construction defects in the waterproofing and pre-cast concrete construction of a large underground parking structure. Favorably settled in mediation.

Represented NJSDA in a mediation with the architect, contractor and project manager concerning mold infiltration in a school under construction in Neptune, New Jersey.  Recovered $6.5 million from architect and contractor.

Mediated and settled approximately $40 million in construction claims (differing site conditions, delays, inefficiency, lost productivity, cumulative impacts) for NJSDA.

Litigated and successfully settled myriad subcontractor lien and quasi-contract claims on behalf of New York-based hospital where general contractor defaulted and became insolvent after its principals were indicted.

Represented state university in dispute with design professionals, contractors, subcontractors and sub-consultants involved in construction of a complex 80,000 square foot medical sciences facility. Favorably settled in mediation.

Represented national day spa builder/operator in litigation brought by a subcontractor seeking payment directly from owner due to the bankruptcy of the general contractor. Summary judgment for client.

Represented contractor against design professional alleging defective design of underground structure.  Favorably settled in mediation.

Defended subcontractor against owner of project alleging a defective roof installation and consequential damages.  Favorably settled in mediation without any monetary contribution by subcontractor.

Represented credit service company against general contractor that refused to pay for allegedly defective construction materials purchased from material supplier.  Obtained summary judgment dismissing claims in addition to an award of attorneys’ fees and costs.

Defended lumber supplier of 160+ wooden decks installed at apartment and townhouse complex that allegedly deteriorated prematurely.  Negotiated settlement with plaintiff and multiple defendant-parties in mediation that resulted in less than 15% contribution by lumber supplier.

Represented general contractor that performed complete renovation of women’s day spa facility.  Obtained arbitration award in excess of $600,000, including award of attorneys’ fees and costs.

Represented State University in dispute with roofing contractor, manufacturer and surety regarding allegedly defective roof installation.  Successfully negotiated settlement with all interested parties without resort to litigation.

Represented State Commission against general contractor alleging that State Commission was responsible for construction work performed in Meadowlands District.  Obtained summary judgment dismissing contractor’s claims and successfully defended plaintiff’s appeal to the Appellative Division.

 

 

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