Cambridge Massachusetts Building Expert Directory

A Retrospective As-Built Schedule Analysis Can Be Used to Support Delay

May 23, 2022 — David Adelstein - Florida Construction Legal Updates
Delay claims are part of construction. There should be no surprise why. Time is money. A delay claim should be accompanied by expert opinions that bolster evidence that gets introduced. The party against whom the delay claim is made will also have an expert – a rebuttal expert. Not surprisingly, each of the experts will rely on a different critical path as to relates to the same project. The party claiming delay will rely on a critical path that shows the actions of the other party impacted their critical path and proximately caused the delay. This will be refuted by the opposing expert that will challenge the critical path and the actions claimed had no impact on the critical path (i.e., did not proximately cause the delay). Quintessential finger pointing! This was the situation in CTA I, LLC v. Department of Veteran Affairs, CBCA 5826, 2022 WL 884710 (CBCA 2022), where the government terminated the contractor for convenience and the contractor claimed equitable adjustments for, among other things, delay. The contractor’s expert relied on an as-built critical path analysis by “retrospectively creating updates to insert between the contemporaneous updates.” Id., supra, n.3. The government’s expert did not do a retrospective as-built analysis and relied on only contemporaneous schedule updates. Id. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Colorado Hotel Neighbors Sue over Construction Plans

October 02, 2015 — Beverley BevenFlorez-CDJ STAFF
Neighbors of the Sky Hotel in Aspen, Colorado, filed suit against the owners “alleging that the construction project will impede access to their units and steal their airspace,” reported the Aspen Daily News Online. The problem, the plaintiff suit alleges, is that the Sky’s plan would close the “east-west alley,” which is also used by the condo complex: “Owners, renters and guests mainly use the alley, which is configured for one-way traffic entering on Durant Avenue and exiting at Original Street, to access their condos in the Chaumont, says the 12-page complaint filed by local attorney Jody Edwards.” The plaintiffs are demanding that the plan be voided or at least require the issues in the suit to be addressed. They are also seeking attorney and other costs. Read the court decision
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How the Parking Garage Conquered the City

January 09, 2023 — Andrew Zaleski - Bloomberg
Uncertainty overcame owners of several Manhattan parking garages in September. A plan to implement congestion pricing — charging drivers to enter a zone south of 60th Street — could lead to more transit usage by commuters, and thus the closure of some parking garages, The City reported. Parking options have already been on the wane in the largest US city: The NYC Department of Consumer Affairs and Worker Protection counted more than 2,200 licenses for garages and lots in 2015, a number that fell to 1,899 by 2021. For most urban residents, if not outer-borough drivers, that decline is reason to cheer. The parking garage — a big, concrete-gray box for cars — is a notorious bane of urban vitality. City after city, desperate to lure suburbanites downtown to work or shop, bulldozed prime real estate to build these structures in the postwar era, turning central business districts into vehicle-storage voids that sapped streets of pedestrian energy and hollowed out neighborhoods. Building codes that mandated a certain number of parking spaces have kept new garages coming: In suburbs, exurbs and towns across the US, you will find these facilities, squatting beside shopping centers and stadiums, airports and office parks, planned communities and amusement parks. Read the court decision
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Reprinted courtesy of Andrew Zaleski, Bloomberg

NYC Luxury-Condo Buyers Await New Towers as Sales Slow

September 24, 2014 — Oshrat Carmiel – Bloomberg
Sales at One57, the ultra-luxury Manhattan condominium tower that set off a high-end residential construction boom, have slowed to a trickle amid competition from newer properties reaching the market. Only two units at Extell Development Co.’s Midtown property went under contract this year through June 30, according to filings on the Tel Aviv Stock Exchange, where the company sells debt to investors. There were no sales in the final three months of 2013 at the building, which had earlier found buyers for two penthouses at more than $90 million each. About 25 of the 94 units on the market were unsold as of June 30, the filings show. “This is not a normal pace,” Jonathan Miller, president of New York-based appraiser Miller Samuel Inc., said in an interview. “This building had many price increases when it was the only building out there, so maybe they overdid it. In other words, the sky is not the limit.” Read the court decision
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Reprinted courtesy of Oshrat Carmiel, Bloomberg
Ms. Carmiel may be contacted at ocarmiel1@bloomberg.net

Parties Can Agree to Anything In A Settlement Agreement………Or Can They?

October 17, 2023 — Alexa Stephenson & Ivette Kincaid - Kahana Feld
A settlement agreement is a contract. When parties to pending litigation enter into a settlement, they enter into a contract. Such a contract is subject to the general law governing all contracts. (T. M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 280 [204 Cal. Rptr. 143, 682 P.2d 338] [offers by a party to compromise under Code Civ. Proc., § 998].) Courts seek to interpret contracts in a manner that will render them “lawful, operative, definite, reasonable, and capable of being carried into effect’” without violating the intent of the parties. (Robbins v. Pacific Eastern Corp. (1937) 8 Cal.2d 241, 272–273; Kaufman v. Goldman, (2011) 195 Cal. App. 4th 734, 745. A settlement agreement like a contract is a document that is typically negotiated between the parties to the agreement and it is up to the parties to determine its terms. Settlements take time and sometimes negotiating the settlement terms takes longer. This is especially true in complex litigation and multiparty matters where negotiating the settlement terms is just as contentious as litigating the matter. Just like contracts, in a settlement agreement the parties cannot agree to terms that violate public policy. A contract is thought to be against public policy if it results in a breach of law, harms citizens, or causes injury to the state. Contracts that are voided on public policy grounds carry no legal obligations. For example, an employer cannot force an employee to sign a contract that forbids the worker from joining a union. Reprinted courtesy of Alexa Stephenson, Kahana Feld and Ivette Kincaid, Kahana Feld Ms. Stephenson may be contacted at astephenson@kahanafeld.com Ms. Kincaid may be contacted at ikincaid@kahanafeld.com Read the court decision
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Art Dao, Executive Director of the Alameda County Transportation Commission, Speaks at Wendel Rosen’s Infrastructure Forum

April 01, 2015 — Garret Murai – California Construction Law Blog
On March 2, 2015, Art Dao, Executive Director of the Alameda County Transportation Commission, spoke to a packed house at the Wendel Rosen Construction Practice Group’s Infrastructure Forum on the Commission’s plans for nearly $8 billion in transportation improvement funding approved by voters this past year under Measure BB. The Alameda County Transportation Commission The Commission, which was formed in 2010 following the merger of the Alameda County Congestion Management Agency and the Alameda County Transportation Improvement Authority, serves as the congestion management agency for the County of Alameda and is responsible for planning, funding and delivering transportation programs and projects throughout the county. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

It’s Time to Start Planning for Implementation of OSHA’s Silica Rule

May 03, 2017 — Nathan Owens & Louis “Dutch” Schotemeyer – Newmeyer & Dillion LLP
Getting a notification from OSHA that your company is being investigated for a health or safety violation is an unwanted disruption to your business that could lead to a hefty monetary fine. Worse yet, if your company is found to have committed multiple violations, OSHA may categorize your company as a severe violator, which makes you subject to follow-up inspections. In the last 6 years, OSHA has added 520 companies to the Severe Violator Enforcement Program - sixty percent of which are in the construction industry. New OSHA regulations impacting the construction industry may result in more companies facing investigations and fines, or worse yet, laying off workers and unable to compete for new work. In 2013, OSHA proposed a new mandate to reduce silicosis in workers. The mandate, which was revised multiple times before being made final in March 2016, requires that employers ensure their workers are exposed to no more than 50 micrograms of crystalline silica in an eight hour period (down from the current standard of 250 micrograms). Under the new mandate, employers are also held to heightened reporting requirements, protective measures and medical testing for employees with extended exposure to silica. In the construction industry alone, OSHA believes the new mandate will prevent 1,080 cases of silicosis and more than 560 deaths. Builder and trade groups believe the new mandate will result in the loss of tens of thousands of jobs and cost the building industry billions of dollars. The National Association of Home Builders estimates that the Silica Rule will cost homebuilders $1,500 per start. While the two sides mount their arguments and seek support, how to implement the rule and its long term feasibility are still contested questions. Recognizing the challenges employers will have with the heightened requirements of the Silica Rule, OSHA just announced that enforcement is being delayed 90 days to develop additional guidance for implementation of the rule in the construction industry. The new start date for enforcement of the Silica Rule is September 23, 2017.* Many in the industry are hoping the Trump administration repeals the Silica Rule like they have “blacklisting” and the Volks rule. However, until that happens, OSHA expects your company to implement processes to ensure compliance by the new start date. *The Silica Rule was adopted by Cal/OSHA in August 2016 even though Cal/OSHA’s own silica standard had been in place since 2008. Cal/OSHA adopted the federal standard with the June 23, 2017 effective date; however; in an effort to synchronize with OSHA, Cal/OSHA recently announced that the effective date in California will also be September 23, 2017. Nathan Owens is the Las Vegas Managing Partner of Newmeyer & Dillion, and represents businesses and individuals operating in a wide array of economic sectors including real estate, construction, insurance and health care in all stages of litigation in state and federal court. For questions related to the OSHA and the Silica Rule, you can reach him at Nathan.Owens@ndlf.com. Louis “Dutch” Schotemeyer is an associate in Newmeyer & Dillion’s Newport Beach office. Dutch’s practice concentrates on the areas of business litigation, labor and employment law, and construction litigation. For questions related to OSHA or the Silica Rule, you can reach him at Dutch.Schotemeyer@ndlf.com Read the court decision
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Toll Brothers Surges on May Gain in Deposits for New Homes

June 01, 2020 — Prashant Gopal - Bloomberg
Toll Brothers Inc. shares surged after the company posted profit that beat estimates and said deposits on new homes were up in recent weeks, a potential sign of optimism for the luxury housing market. The homebuilder, which focuses on higher-end customers, has struggled during the pandemic. It reported orders for the second quarter that missed estimates and said the key metric had plunged starting March 16, when much of the economy shut down. But investors shrugged off those results, focusing instead on a 13% year-over-year gain this month in deposits, which the company called a “leading indicator of current market demand.” Read the court decision
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Reprinted courtesy of Prashant Gopal, Bloomberg

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES