Contract Negotiation & Preparation

Twenty years ago, the New York Law Journal published an article about a then little-used law that authorized courts to grant a license to a property owner or developer unable to make repairs or improvements to its property without entering onto a neighbor’s property (See Little-Used Law Helps Developers Held Hostage, N.Y.L.J. Aug. 14, 2002).  The law in question, Real Property Actions and Proceedings Law (“RPAPL”) Section 881, authorized a judicial license where a neighbor refused permission to access its property for necessary construction and repairs.  It also provided the court with flexibility to set conditions on the license upon “such terms as justice requires.”

James J. Terry, a partner at Zetlin & De Chiara LLP, is a successful litigator, negotiator and advocate specializing in the resolution of complex design, development and construction management disputes across the spectrum of the built environment.

In practice for more than four decades, his portfolio includes construction defect claims, bid protests, change orders, liquidated damages, delays, cumulative impact claims, lost productivity, acceleration and inefficiency claims for national and international clients. Mr. Terry’s expertise includes the development and execution of project labor agreements (PLAs) that set labor compensation, work rules, schedules and performance expectations upfront.

President Biden recently signed an executive order which will implement new pro-union project labor agreements in order to increase union membership in the federal, public and private sectors.

The move has set off a round of opposition from construction industry organizations, not to mention individuals who see the move as detrimental to fair and open competition for bids related to the Infrastructure Investments and Jobs Act of 2021.

Jim Terry, Partner at Zetlin & De Chiara, explains the impact of project labor agreements in Construction Dive following President Biden's executive order.

Construction sites close down for emergencies—whether or not everyone involved is ready. The COVID-19 lockdown adds new forms of operational and legal uncertainty. Yet a shutdown needn’t be a disaster: it’s time to plan, anticipate potential problems, and upgrade procedures.

An article titled “Building With BIM” was published in the July 2009 issue of New York Construction with commentary by Michael J. Vardaro.

Rachel John will speak on the importance of negotiating a comprehensive teaming agreement when pursuing a design-build project award on a panel entitled, So You Think a Teaming Agreement is Too Much Trouble? She will also discuss updates to the DBIA family of design-build contracts and comparison of key terms with other industry forms in another panel, Fair and Balanced – What Makes DBIA’s Family of Contract Documents Different? The panels will take place at the Design-Build Institute of America's 2022 Conference & Expo in Las Vegas.

Sweet Dreams (Are Made of . . . Good Contracts): Understanding and Navigating the Ancillary Contracts in Construction

Michael Vardaro, Managing Partner, will join a panel at the ABA Forum on Construction Law to discuss the nuances of construction contracts. In-house counsel frequently draft and negotiate core construction contracts, but projects often require a variety of other specialized ancillary agreements, including joint venture arrangements, special project access issues, non-disclosure and confidentiality, unusual project finance, letters of intent, and other issues. You can sleep soundly when you have adequately papered the deal for these critical, and often unique, situations.

This session will equip counsel to recognize the need for an ancillary agreement as well as the purposes, principal components, and strategies for negotiating such specialized contracts.

Loryn Riggiola, Partner will join a panel discussion on the Design Build process. The panel will include NYC DOT’s Tanvi Pandya, PE, DBIA, Executive Director of Design-Build (Bridges) as well as members of WBC’s Design Build Committee who will share their insights and perspectives on best practices for MWBEs as well as managing risk on these type of projects.

Tony DiBrita, Of Counsel, discussed the Risks & Opportunities of NYC LL97. He addressed:

1. The projects that are subject to LL97

2. Updates on pending LL97 regulations

3. Identifying and mitigating problematic contract language

4. The importance of communicating risks and desicions made during the phases of the project

Michael De Chiara spoke at a BE-Ex Architect Advisory Council (AAC) workshop co-sponsored by the Building Energy Exchange, AIA New York, and ASHRAE New York about the legal risk and responsibility of high performance design and construction, and how to improve compliance with NYC climate legislation.

Tara Mulrooney, Partner at Zetlin & De Chiara, moderated a panel of industry experts at the Commercial Observer’s recent Life Science Forum. The panelists, representatives from different constituencies in the life sciences market, were:

• Susie Harboth, EVP, Business Operations Breakthrough Properties;
• Matthew Weir, EVP, Taconic Properties;
• Shara Ticku, CEO & Co-Founder, C16 Biosciences; and
• Peter Schubert, Design Partner, Ennead Architects.

The discussion focused on the unique needs of start-up and early stage life science companies and what developers, landlords and the City can do to make New York a destination for these enterprises.

This program will present key aspects of ACEC New York's LL97 Reference Guide White Paper. Michael De Chiara will discuss design team liability.

The panel of insurance experts and attorneys will address insurance coverage and risk management in these uncertain times and how you can take a proactive approach to protecting your business.

Jaimee Nardiello, Partner, will participate in a panel that will discuss Contract and Common Law Claims, Prosecution of Claims and Remedies. 

Join Tara Mulrooney, Partner, as she participates in an interactive discussion with a panel of lawyers, architects and construction professionals as they explore ways to navigate the issues facing projects in the age of COVID-19.

How to Address the Impact on Development, Construction and Design: 

Answers for the Construction Community

Michael Vardaro, Zetlin & De Chiara's Managing Partner, provided insights on COVID-19 construction contract issues and overall business advice to senior-level Architecture and Engineering executives. He was a member of a panel of experts who shared their views in an interactive virtual roundtable format. The speakers provided practical and timely advice in an uncertain business environment.

Michael Vardaro and fellow speakers: Elena Brescia-SCAPE; Gregg Garmisa-Studio Gang; and Stephen Whitehorn-Empowerment Whitehorn will provide an insider's guide to contracts.

In recent weeks, there has been a long list of companies, from all industries spanning from construction/engineering to fashion and hospitality, that have announced that they are completely severing ties with Russia, while a host of others have announced a temporary halt. See Jeffrey A. Sonnenfeld, Over 400 Companies Have Withdrawn from Russia – But Some Remain, Yale School of Management (Updated Mar. 21, 2022), https://som.yale.edu/story/2022/over-400-companies-have-withdrawn-russia-some-remain?utm_campaign=mb. For those developers, EPC contractors, and design professionals (engineers and architects) who have construction projects in Russia, the question is, “How should we proceed?”

The New York City Department of Buildings (“DOB”) issued a notice of adoption of final rules for its Major Projects Development Program that will go into effect on May 1, 2022. According to the DOB’s press release, the intention of the Major Projects Development Program is “to help construction projects get off the ground safely and avoid work stoppages” by offering one-on-one consultation and support to owners of eligible projects.

Healthcare construction and design has changed dramatically as a result of  the events of the last 18 months, which will have a lasting impact on the industry, noted Jaimee Nardiello, Partner at leading construction law firm, Zetlin & De Chiara.

As part of Commercial Observer's 5th Annual Healthcare Construction Forum, Ms. Nardiello moderated a panel of industry experts who gave their unique perspectives on how the pandemic will change healthcare facilities and thus design in a post-covid world.

Topics discussed included building add-ons like airborne pathogen detectors, negative pressure rooms, and air handling systems, as well as how designers, managers, and construction teams can work together to build care-centered facilities.

“New York City’s far-reaching climate laws will have a significant impact on developers, architects, engineers and the other members of the construction industry,” noted  Michael De Chiara, Senior Partner at Zetlin & De Chiara. Mr. De Chiara and a panel of industry experts expanded on the changes at a recent workshop on Contracts, Climate, & Compliance sponsored by the Building Energy Exchange’s Architect Advisory Council (AAC) in cooperation with AIA New York and ASHRAE New York.

The panel provided a detailed look at the legal risk and responsibility of high performance design and construction, as well as how to improve compliance with NYC climate legislation, including its forthcoming predicted energy use code (Local Law 32 of 2018) and the groundbreaking building carbon emission limits of 2019’s Local Law 97.

The New York City Council passed Local Law No. 97 of 2019 on April 18, 2019 and Local Law No. 147, amending Local Law No. 97, on June 26, 2019, both of which became effective as of November 15, 2019 (collectively “LL97”). LL97 ushers in a new era of stringent climate control regulations for the City, applicable to both existing buildings and new buildings. Though LL97’s emissions limitations do not begin until 2024, real estate owners and design professionals are already busy considering how the new limitations will impact current buildings, as well as those being contemplated for the future. This client alert intends to summarize LL97’s emission standards so that our clients may consider them when conceptualizing new projects and, where feasible and appropriate, recommend design elements and building systems to assist owners in meeting their new obligations.

Following our webinar, COVID-19 Challenges to the Construction Industry, we assembled a Questions & Answers based upon questions participants posed and to issues we discussed.

As 2019 drew to a close, Governor Cuomo signed a bill on December 31st that had been passed by the New York State Legislature in June allowing certain New York City agencies to use the design-build project delivery system for construction projects.