Construction claim disputes are very technical and usually present a variety of complex issues. Maraziti Falcon, LLP represents both the public sector and the private sector in federal and state courts and in alternative dispute resolution proceedings on various types of construction claims. Maraziti Falcon, LLP advises clients with regard to contract drafting, procurement of construction contracts, bid disputes, and overall compliance. Maraziti Falcon, LLP also represents its clients in the defense of litigated bid challenges, from the administrative level through the appeals process.
During the course of any construction project, a contractor’s claims may include damages related to differing site conditions, equitable adjustments, change orders, delay, disruption, loss of productivity, acceleration, withholding of payment, the date of substantial completion, scheduling disputes and such other claims. These types of claims are highly fact sensitive and usually turn on the legal interpretation of the language in the construction contract as well as the technical advice provided by the consulting engineer. Maraziti Falcon, LLP’s construction practice focuses on these complex claims and has the relevant experience in crafting defenses based upon termination for cause, liquidated damages, and post warranty claims. When warranted by the circumstances, Maraziti Falcon, LLP also assists its clients in the negotiation of takeover agreements with the surety in order to achieve project completion.
The firm is presently engaged in providing routine and ongoing legal advice regarding construction contracts for the Rockaway Valley Regional Sewerage Authority involving the Monroe Street Pump Station and Force Main and Morris Avenue Gravity Sewer as well as its Final Clarifier Repair Project; Hanover Sewerage Authority regarding its Fuel Source Reliability and Diversification Project and the Rehabilitation of Digester No. 2; Somerset Raritan Valley Sewerage Authority for its sludge incinerator mercury emission control project and the drafting of general conditions for a proposed Storm Control Treatment Facility that will treat and alleviate overflow conditions to Peters Brook and the Raritan River during periods of high wet weather flow; and the Township of Millburn regarding its Complete Streets Project involving improvements to County roadways in accordance with NJDOT specifications and a surety takeover agreement for the completion of roof repairs to the Millburn Township firehouse. Claims for disruption, delay, unforeseen conditions, change orders, extended engineering fees, and liquidated damages are typical in the discussion of general contractor claim disputes. In addition to ongoing construction advice for the aforementioned clients, the firm has further engaged in the following matters:
Construction Mandatory Minimum Qualifications
The firm engaged in assisting the Somerset Raritan Valley Sewerage Authority (“SRVSA”), located in Bridgewater, New Jersey, in preparing bid specifications that included bidder mandatory minimum qualifications for specialized work in connection with its sludge incinerator mercury emission control project. In order to obtain approval of bidder mandatory minimum qualifications from the Department of Community Affairs (“DCA”) the firm assisted SRVSA, in conjunction with its engineering consultant CDM-Smith, in proceeding with the prequalification of bidder process required by the Local Public Contracts Law, N.J.S.A. 40A:11-25. This process involved drafting of regulations, meeting with DCA representatives, adopting the regulations after a public hearing, publication requirements and obtaining approval from DCA. This process was successfully completed within four months and resulted in the award of a contract to a bidder that satisfied the mandatory minimum qualifications in 2017.
Carbro Constructors Corp. v. Somerset Raritan Valley Sewerage Authority and Camp Dresser & McKee
The firm represented the Somerset Raritan Valley Sewerage Authority (“SRVSA”) in mediation; the Superior Court of New Jersey, Law Division; and in arbitration in the defense of damage claims asserted by Carbro Constructors Corp. (“Carbo”) the SRVSA’s general contractor. Carbro alleged damages in the amount of $2,306,222.92 against SRVSA and SRVSA’s design and construction surveillance engineer, CDM-Smith. The claims were for a variety of disruption claims, changed conditions and delay disputes relating to the construction of approximately 4200 linear feet of 72” diameter outfall pipe from SRVSA’s treatment plant to the Raritan River and for the deletion of tunnel work underneath an active railroad. The matter further involved a Counterclaim against Carbro in the amount of $449,935.84 for extended engineering fees, construction surveillance and liquidated damages.
During the course of the litigation, the outcome was successfully resolved in a partial settlement agreement that was obtained in 2014, with the remaining claims being resolved in an arbitration that concluded in 2016. The matter involved extensive electronic discovery of records and expert witnesses.
Stony Brook Regional Sewerage Authority River Road Wastewater Treatment Plant Headworks Facility Project
The firm successfully represented the Stony Brook Regional Sewerage Authority, located in Princeton, New Jersey, in a construction mediation dispute involving ten potential change orders from the general contractor, Tomar Construction, LLC (“Tomar”) that totaled $198,345.50 and alleged extended and unabsorbed overhead claims in the amount of $682,471.68. Tomar was awarded “Headworks Project Contract No. 10-1” on January 24, 2011 in the amount of $9,493,000.00 as the lowest responsible bidder in accordance with the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq. Final completion of the work occurred on January 9, 2015, which the Authority maintained was 786 days beyond the final completion date, as adjusted by approved change orders. The Authority claimed liquidated damages and damages for extended engineering fees. The matter was fully resolved by the mediation that occurred in 2016.
RML Construction, Inc. v. Hanover Sewerage Authority
The firm represented the Hanover Sewerage Authority in the defense of claims asserted by the general contractor, RML Construction, Inc. (“RML”) who was terminated after two years of contractor delay. In 2012, RML, as the lowest responsible bidder, and the Authority, as the Owner, executed Contract No. 24 “Rehabilitation of Pond Liners and Miscellaneous Improvements (Rebid – November 2011).” RML utilized DN Tanks (f/k/a Natgun) as a subcontractor for lining work in the Authority’s two equalization basin ponds. After successfully dismissing the aforementioned litigation filed in the Superior Court of New Jersey, Law Division, due to the fact that mediation had not occurred prior to the filing of the litigation, the firm successfully represented Hanover Sewerage Authority in the 2016 mediation of the matter that resulted in DN Tanks completing the work.
Rockaway Valley Regional Sewer Authority Interceptor Sewer Rehabilitation Project
The firm represented the Rockaway Valley Regional Sewer Authority, located in Boonton, New Jersey, in the 2015 settlement of construction claims relating to the RVRSA’s Interceptor Sewer Rehabilitation Project. On August 12, 2010, RVRSA awarded Interceptor Sewer Rehabilitation Project Contract No. 35 -Rebid to Insituform Technologies, Inc. (“ITI”) in the amount of $1,143,082. A breach of contract claim arose for certain work, including the lining of approximately 120 feet of 48” diameter pipeline; playground restoration and installation of playground equipment; resolving issues at two residential properties in order for residents to return to their homes; final pavement at two manholes; replacing a STP Meter flume and certain work in the chamber; and failure to provide a contractually required insurance policy. These failures resulted in RVRSA issuing a notice of intent to terminate the contract on January 4, 2012 and January 20, 2012. The notice was served on ITI and Travelers Casualty and Surety Company of America. In 2015, the firm successfully represented RVRSA in resolving those claims without resorting to mediation or litigation.
Township of Millburn Parking Garage
The firm successfully represented the Township of Millburn in a 2014 mediation of unresolved change orders, construction delay claims, extended engineering fees and liquidated damages pertaining to the construction of a three level parking structure, with an approximate footprint of 175′ x 260′, having entrances on Essex Street and Lackawanna Place in the downtown area of the Township of Millburn. The new municipal parking deck is in close proximity to New Jersey Transit.
Dobco, Inc. (“Dobco”) submitted a bid in the amount of $7 million and Dobco was determined by the Township to be the lowest responsible bidder. On June 5, 2012 the Township authorized the execution of the Contract with Dobco. Performance and payment bonds were also submitted in the amount of $7 million in which Arch Insurance Co. was identified as the surety. TimHaahs prepared the drawings and specifications for the Contract and was retained by the Township throughout the project as its consulting design, structural engineer, and parking consultant. Throughout the construction of the project the Township retained Epic Management, Inc. (“Epic”) as its construction management consultant for construction oversight of the new municipal parking deck at the corner of Lackawanna Place and Essex Street.
At the time of the mediation, remaining work was not completed as to the parking garage due. The mediation resulted in the successful completion of the parking garage.
SRVSA Interceptor Relief Sewer Project
The firm successfully represented the Somerset Raritan Valley Sewerage Authority (“SRVSA”) against claims asserted by the general contractor during the construction of SRVSA’s Interceptor Relief Sewer Project. Metra Industries, Inc. (“Metra”) was awarded Contract No. C-04-1 by the SRVSA for the construction of its Interceptor Relief Sewer Project (the “Contract”). The amount of the Contract was $8,967,872 and Notice to Proceed was submitted to Metra on February 24, 2005. During the course of construction, Metra submitted claims and requests for additional compensation in the amount of $1,051,038.80. The firm represented SRVSA in the negotiations of claims which resulted in a settlement agreement.
Thomas P. Carney, Inc. v. Somerset Raritan Valley Sewerage Authority and Camp Dresser & McKee
The firm represented the Somerset Raritan Valley Sewerage Authority in a federal trial in the defense of claims asserted by the general contractor, Thomas P. Carney, Inc. (“Carney”) in an approximate amount of $10 million for the Phase I Upgrade of the SRVSA’s Wastewater Treatment Plant. On June 25, 2002 (after several meetings with Carney and its surety, Liberty Mutual Insurance Company), the Authority declared Carney in default and terminated the services of Carney. The firm further represented SRVSA in the successful negotiation of a takeover agreement with the surety, Liberty Mutual Insurance Company.
On December 11, 2003, Carney filed litigation against the Authority and its consulting engineer, Camp, Dresser & McKee (“CDM”) in the United States District Court for the District of New Jersey. The Complaint alleged breach of contract, unjust enrichment, and delay and lost productivity against the Authority, together with pre- and post judgment interest and costs. On October 7, 2004 the United States District Court dismissed all claims against CDM.
At the conclusion of federal trial, the jury awarded Carney approximately 10% of its claim and it awarded SRVSA liquidated damages against Carney.